Amit Kumar vs State Of U.P. Through Prin. Secy. ...
2015 Latest Caselaw 1468 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 3829 of 2013
 

 
Petitioner :- Amit Kumar
 
Respondent :- State Of U.P. Through Prin. Secy. Intermediate Edu. Deptt. L
 
Counsel for Petitioner :- Anurag Narain
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Anurag Narain, learned counsel for petitioner, learned State counsel and perused the record.

By means of the present writ petition, the petitioner has challenged the order dated 21.05.2013 passed by District Inspector of Schools, rejecting the petitioner's case for compassionate appointment under U.P. Dying-in-Harness Rules.

Facts in brief of the present case are that on 15.01.1988 the petitioner who was born out of wedlock of Sri Mathura Prasad and Smt. Sarla Devi r/o village Bhajanpurva, District Hardoi. By registered adoption deed dated 21.05.1998, he was adopted by Sri Verma S/o Mulla. Later on, Sri Verma, who was working on Class-IVth post, died on 08.04.2002 during the tenure of his services.

Accordingly, petitioner submitted an application for considering his case for compassionate appointment. As the said matter has not been considered, so he approached this Court by filing a Writ Petition No. 7464 (SS) of 2007 (Amit Kumar Vs. Director of Education (Madhyamik) & others), allowed by order dated 06.03.2013, on reproduction reads as under:-

"Heard Sri Anurag Narain, learned counsel for the petitioner and learned Standing Counsel appearing for opposite parties.

The controversy engaging attention of this Court in the instant writ petition is no more res integra as the same has been settled by a judgment rendered by this Court in the case of Tarun Kumar vs. State of U.P. and others, reported in [(2011) 4 UPLBEC 3018].

Father of the petitioner, namely, late Sri Verma was employed as 'MALI' in Lal Bahadur Shastri Inter College, Hardoi, an institution being recognized under the relevant provisions of U.P.Intermediate Education Act,1921. While in service in the said institution Sri Verma died on 14.04.2002. On his death the petitioner appears to have approached the authorities concerned seeking his appointment on compassionate ground. The matter relating to compassionate appointment was considered by the District Inspector of Schools, Hardoi, who vide his order dated 26.07.2007, contained as Annexure No.1 to the writ petition, rejected the claim of the petitioner on the ground that since he is the adopted son of the deceased employee, as such, he is not entitled to be given compassionate appointment. The reason indicated in the impugned order dated 26.07.2007 is that under the relevant rules the definition of the word 'son' would not include "adopted son".

The aforesaid issue, as stated above, was considered by this Court in the case of Tarun Kumar (supra), wherein it has been categorically held that adopted son is included in the definition of family as defined in the relevant rules.

Learned Standing Counsel could not controvert the aforesaid proposition of law laid down in the case of Tarun Kumar (supra).

Accordingly, the impugned order dated 26.07.2007 passed by the District Inspector of Schools, contained in Annexure No.1 to the writ petition, is hereby quashed.

The writ petition is allowed.

The opposite parties are directed to consider the case of the petitioner for appointment against a suitable post on compassionate ground as per law and in view of observations made above within a period of two months from the date a certified copy of this order is produced before the authority concerned."

In pursuance to the said order, the petitioner's case for compassionate appointment has been considered and rejected by order dated 21.05.2013 passed by District Inspector of Schools, Hardoi on the grounds that the registered adoption deed has not been produced by him rather the notrized copy of the certified copy has been filed as well as on the ground that in the transfer certificate of the petitioner issued by Lal Bahadur Shastri Inter College, the name of the petitioner's father is mentioned as Sri Mathura Prasad Saini r/o Bhajanpurva, Hardoi.

Sri Anurag Narain, learned counsel for petitioner while challenging the impugned order passed by O.P. No. 4/District Inspector of Schools, Hardoi submits that so far as the finding given in the impugned order that the registered adoption deed has not been filed is totally incorrect and wrong, as a matter of fact, the registered adoption deed was submitted before the O.P. No. 4, so the same is contrary to the facts on record perverse in nature.

Next argument raised by sri Anurag Narain, learned counsel for petitioner that as the adoption deed is a registered document, so in view of the provisions of Section 16 read with Sections 12 & 15 of the Hindu Adoption and Maintenance Act, 1956, so the impugned action on the part of O.P. No. 4 thereby rejecting the claim of the petitioner for compassionate appointment on the ground that in the transfer certificate issued by the Institution known as Lal Bahadur Shastri Inter College for academic session 2003-2004, it has been mentioned that Sri Mathura Prasad Saini is the father of the petitioner is contrary to law, liable to be set aside.

Learned State counsel in rebuttal does not disputed the fact that there is a valid registered adoption deed dated 21.05.1998 by which Sri Verma s/o Mulla has adopted Sri Amit Kumar, and it has also not been disputed by learned State counsel that an adopted son falls within the definition of "family" as per Section 21 of U.P. Dying-in-Harness Rules whose case may be considered for compassionate appointment, however he defends the impugned order only on the ground that as in the transfer certificate issued by Lal Bahadur Shastri Inter College, the name of the petitioner's father is mentioned as Sri Mathura Prasad/natural father, so in view of the said fact the presumption will follow that he the son of Sri Mathura Prasad,as such, he cannot claim compassionate appointment on the basis of adoption deed dated 21.05.1998 in place of Late Sri verma as per U.P. Dying-in-Harness Rules. In support of his argument he placed reliance on the judgment given by the Apex Court in the case of Jai singh Vs. Shakuntala, 2002 (30) SCC 634 and Ghulam Qadir Vs. Special Tribunal and others, 2002 (1) SCC 33

I have heard learned counsel for parties and gone through the record.

It is undisputed that by way of registered adoption deed dated 21.05.1998, Sri Verma s/o Mulla has adopted the petitioner/Amit Kumar as son as per provisions as provided under Hindu Adoptions and Maintenance act, 1956. Later on he died during the tenure of his service while working on class-IVth post in Lal Bahadur Shastri Inter College and after his death, the petitioner has claimed compassionate appointment on the ground that being an adopted son he comes within the definition of "family" as given under section 2(c) of the U.P. Dying-in-Harness Rules, 1974, so he is enttiled for considreation of his case on compassionate ground under dying-in-Harness Rules.

The first and foremost question which is to be considered in the present case that the action on the part of District Inspector of Schools, Hardoi/O.P.No. 2 thereby rejecting the petitioner's case for compassionate appointment on the ground that in the transfer certificate issued in his favour pertaining to the class-IXth for academic session 2003-2004 of the institution al Bahadur Shastri Inter College, the name of father of the petitioner is mentioned as Sri Mathura Prasad Saini, not his adopted father, so he is not entitled for compassionate appointment.

In order to decide the said controversy, it is appropriate to state the provisions as provided under Sections 12, 15 and 16 of the Adoption Act, as under:-

"12. Effect of adoptions - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Provided that-

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

15. Valid adoption not to be cancelled - No adoption which had been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

16. Presumption as to registered documents relating to adoption -

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

Taking into consideration the abovesaid provions and the facts that the adoption deed is a duly registered one and the same has not been challenged by any of the parties in litigation before any competent court or by any other person, hence the same document is valid and has got binding effect. In the case of Jai singh Vs. Shakuntala, 2002 (30) SCC 634, Hon'ble the Supreme court while considering the validity of adoption as per Section 16 read with Section 11(4) of the Hindu Adoptions and Maintenance act, 1956, held as under (relevant portion);-

"The Section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. Mandate of the Statute is rather definite since the Legislature has used "shall" in stead of any other word of lesser significance. Incidentally, however the inclusion of the words "unless and until it is disproved" appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession - thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words "unless and until it is disproved" shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption.

Statutory intent thus stands out to be rather expressive depicting therein that the presumption cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above. On the wake of the aforesaid the observations of the learned single Judge in Modan Singh vs. Mst.Sham Kaur & Ors. (AIR 1973 P&H 122) stands confirmed and we record our concurrence therewith.

The issue thus arises as to whether High Court was justified in laying emphasis on the conduct of the adopted son. As noticed herein before the presumption is a rebuttable presumption. While it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the Court is not precluded from looking in to it upon production of some evidence contra the adoption. Evidence, which is made available to the Court for rebutting the presumption, can always be looked into and it is on production of that evidence that the High court has recorded a finding non-availability of the presumption to the Appellant A brief reference to the available evidence may be convenient at this juncture. The following documents were placed on record:

(i) Voters list prepared in the year 1991;

(ii) Receipts of chulha tax said to have been paid by the appellant;

(iii) Mutation proceedings dated August 23, 1986;

(iv) Jamabandi for the year 1988-89.

As well as the law as laid down by this Court in the case of Rakhi Singh Vs. State of U.P. , 2006(24) LCD 182 has held as under:-

" The factum of adoption and its validity is not disputed before this Court either in the counter affidavit or in the impugned order. This Court as indicated in the aforesaid judgments has laid down that in case the adoption is valid then the adopted son would be included in the definition of family. The definition of family has been decided in the aforesaid judgement of this Court and and adopted son has to be included in the definition of family for the purposes of appointment under the Dying-in- Harness Rules."

In view of the abovesaid facts, once the registered adoption deed is valid and the same has not been canceled by any competent court then the District Inspector of Schools has got no jurisdiction/authority to reject the petitioner's case on the ground that in the transfer certificate of the petitioner, the name of the father of the petitioner is mentioned as Mathura Prasad Saini.

So far as the reliance as placed by learned State counsel while for petitioner while supporting the impugned order on the law as laid down by Hon'ble the Apex Court in the case of Ghulam Qadir Vs. Special Tribunal and others, 2002 (1) SCC 33, in the said case, it has been held as under, relevant portion quoted as under:-

"Learned counsel appearing for the appellant referred to the judgments of this Court reported in Smt.Rukmani Devi & Ors. vs. Narendra Lal Gupta [1985 (1) SCC 144] and Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors. [1993 (2) SCC 507] to urge that the probate granted in favour of the appellant by a competent court of jurisdiction is conclusive of the validity of the Will unless it is revoked and no evidence can be admitted to impeach it except in proceedings taken for revoking the probate. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the Will. However,it does not establish more than the factum of the Will as probate court does not decide question of title or of the existence of the property mentioned therein. If despite admitting the execution of the Will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to examine the Will or the probate to that extent. It is established in this case that on 4th or 9th January when the Will was executed and registered respectively, the executant, namely, Sardar Begum had not become the owner of the disputed property. The disputed property at the time of execution of the Will, admittedly, was vesting in the custodian under the provisions of the Act. Her application filed under Section 8 of the Act had been dismissed on 19th March, 1959 and her appeal was allowed by the Custodian General on 29th July, 1959 by remanding the case back to the custodian for inquiry and order on points formulated in the remand order. Before the custodian could pass any order, Sardar Begum executed the Will on 4.1.9164 and died on 13.9.1965. It is worth mentioning here that before the death of Sardar Begum, her application which was remanded to the custodian had been dismissed for default of appearance on 23rd July, 1965. In this view of the matter, the executant of the Will had no right or authority to bequeath a property which did not belong to her. It may further be noticed that in her Will she had nowhere stated that the executor, the appellant, would be entitled to any interest in the disputed property which was vesting in the custodian at that particular time. The execution of the Will, therefore, neither affected the evacuee property vesting in the custodian nor it conferred any right upon the appellant to pray for its deletion or restoration. The properties bestowed by the Will upon its beneficiary included a house situated in Kucha General Samundar Khan, a single storey pacca house situated at Mohalla Dalpatian, five pacca shops situated in Rajinder Bazar, and two double storey shops and one pacca shop situated in Kanak Mandi, Jammu. The disputed property which vested in the Custodian, at the relevant time, comprised of four shops with two flats thereon situated in Rajinder Bazar, Jammu. No specific mention is made of such a property. She has referred only to "five pucca shops situated in Rajinder Bazar, Jammu". Double storey shops mentioned by her in the Will are stated to be in Kanak Mandi, Jammu, admittedly, a different area, though adjacent to Rajinder Bazar. Accepting the plea of the appellant would amount to authorising a person to execute a Will with respect to any property in which the executant had no right or interest including the Government property like Secretariat or official bungalows in favour of another person who in turn would rush to the courts for the establishment of his title in the property, on the basis of conferment of title upon him by way of Will. Such a course is neither permissible nor legal and in fact is against the public policy. After perusing the Will, allegedly proved to have been executed by Sardar Begam and the probate issued by the Additional District Judge, Jammu, we are of the opinion that neither the Will nor probate conferred any right upon the appellant which he could enforce in a court of law or quasi-judicial authority, such as the custodian."

Accordingly, the the judgment given by Hon'ble the Apex Court in the case of Ghulam Qadir (Supra), is not applicable in the facts and circumstances of the present case, as such the opposite parties cannot derive any benefit of the said judgment in order to support the order dated 21.05.2013 passed by District Inspector of Schools, Hardoi.

Next point which is to be considered on which the petitioner's case for compassionate appointment has been rejected by O.P.No. 2/District Inspector of Schools, Hardoi that the petitioner has filed the photocopy of the certified copy of the adoption deed is concerned, the fact has been vehemently denied by learned counsel for petitioner, however, from the material on record and as per the admitted position which emerged out that there is a registered adoption deed dated 21.05.1998 as well as succession certificate dated 19.04.2006 issued by the Civil Judge (Sr.Div.), Hardoi, so keeping in view the abovesaid facts, it will be appropriate that the matter may be re-examine by the District Inspector of Schools, in view of the observations made hereinabove where the petitioner shall be given adequate opportunity to prove his version by filing documents and materials in support of his case.

For the foregoing reasons, the writ petition is allowed, the impugned order dated 21.05.2013 passed by District Inspector of Schools, Hardoi is set aside and the matter is remanded to the District Inspector of Schools, Hardoi to decide afresh in accordance with law after giving an opportunity to the petitioner to produce the relevant material and other documents in support of his case.

The said exercise shall be done by District Inspector of Schools, Hardoi expeditiously, say, within a period of eight weeks from the date of receiving certified copy of this order.

Order Date :- 27.7.2015

Ravi/