Ayush Sharma vs Union Of India And 2 Others
2023 Latest Caselaw 4803 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 
Case :- WRIT - A No. - 22015 of 2022
 
Petitioner :- Ayush Sharma
 
Respondent :- Union Of India And 2 Others
 
Counsel for Petitioner :- Ashok Trivedi,Manu Mishra
 
Counsel for Respondent :- A.S.G.I.,Ram Dular
 

 
Hon'ble Jaspreet Singh,J.

Heard Sri Ashok Trivedi, learned counsel for the petitioner as well as Sri Ram Dular, learned counsel for the Union of India-respondents.

By means of the instant petition, the petitioner prays for the following reliefs which read as under:-

"(i) To issue a writ, order or direction in the nature of Mandamus directing the Respondent No. 2 & 3 to sanction and release the entire terminal dues along with interest in favour of the petitioner, as mentioned in paragraph No. 15 of the Writ Petition, within stipulated time period as may be fixed by this Hon'ble Court.

(ii) To issue a writ, order or direction in the nature of Mandamus directing the respondent No. 2 & 3 to decide and take appropriate decision on the Representation dated 15.10.2022 (Annexure No. 11) submittted by the Petitioner seeking terminal dues of his adoptive father."

The record would further indicate that this Court on 19.01.2023 had passed the following order which reads as under:-

"Heard Sri Ashok Trivedi learned counsel for the petitioner and Sri Ram Dular learned counsel for the Union of India.

By means of the instant petition, the petitioner seeks a direction in the nature of mandamus for releasing the entire terminal dues along with interest in favour of the petitioner in respect of the dues of the adoptive father namely Sri Atar Singh, who during his service tenure died on 11.02.2007 and at the relevant time the petitioner was a minor.

Learned counsel for the Union of India shall seek instructions as to what the the legal impediment and why the aforesaid terminal dues have not yet been released in favour of the petitioner within two weeks.

List this matter again on 08.02.2023, as fresh."

The learned counsel for the respondents has provided a copy of the written instructions dated 27.01.2023 under the signatures of the Assistant Establishment Officer, Northern Railways, Moradabad and the same is taken on record.

With the consent of the learned counsel for the parties, the petition is being decided at the admission stage itself.

The submission of learned counsel for the petitioner is that the petitioner is the adopted son of late Sri Atar Singh. Sri Atar Singh had adopted the petitioner by means of a registered adoption deed dated 09.08.2005 which was executed by the biological father of the present petitioner in favour of Sri Atar Singh, a copy of the said deed has also been brought on record as Annexure No. 1 to the petition.

It has further been submitted that Sri Atar Singh, the adopted father died in harness on 01.02.2007 leaving behind the petitioner who was a minor at the relevant time, when his adopted father has expired, a copy of the death certificate of Late Sri Atar Singh has also been brought on record as Annexure No. 2.

It has further been submitted that the biological father of the petitioner namely Sri Mahaveer Sharma has instituted proceedings before the District Court for appointment of a guardian in respect of the person and property of the minor petitioner. The same came to be allowed by the Court of ADJ, Court No. 4, Moradabad by means of order dated 26.02.2011, a copy of which has been brought on record as Annexure No. 3.

It has further been pointed out that though the Railways preferred an appeal against the said order which is pending before this Court bearing FAFO (D) No. 607 of 2011 (Joginder Singh Vs. Mahavir Sharma and others), however, there is no interim order or any impediment in proceeding with the same, a copy of the order in FAFO (D) 607 of 2011 has been brought on record as Annexure No. 4.

It has further been submitted that during the pendency of the aforesaid proceedings, the petitioner attained majority, thereafter he moved an application with the respondent-authorities for the grant of post death benefits of his adopted father, however, the same have not been cleared.

It is in the aforesaid backdrop that the petitioner has filed the instant petition seeking a direction in the nature of mandamus commanding the respondent no. 2 and 3 to release the entire terminal dues alongwith interest to the petitioner.

The aforesaid relief as claimed by the petitioner is opposed by the Union of India on two grounds. The learned counsel for the respondents submits that first and foremost there is a litigation pending before the biological father of the petitioner and one Sri Jogendra Singh and on account of the pendency of the said suit, the respondent-authorities are unable to clear the post terminal dues as admissible to Sri Atar Singh in favour of the petitioner.

The other ground raised by the learned counsel for the respondent is that the F.A.F.O. (D) no. 607 of 2011 is pending before this Court and for the same reason, the dues cannot be cleared.

Having considered the aforesaid submissions and from the perusal of the material on record including the decision rendered by the Court of ADJ, Court no. 4, Moradabad dated 26.11.2011 which was passed in Case No. 25 of 2008, it would be clear that the said proceedings were instituted by the biological father of the petitioner during the minority of the petitioner for seeking declaration regarding his status as a guardian for the person and the property of the minor petitioner. The same came to be allowed by means of order dated 26.02.2011. The effect of the said judgment is only to the extent that during the minority of the petitioner, Sri Mahavir Sharma who also happens to be the biological father of the petitioner would be the guardian of the person and the property of the minor. Though, an appeal bearing No. F.A.F.O. (D) No. 607 of 2011 is pending before the Court but it is not disputed by the respondent-authorities that the petitioner has attained the age of majority. The effect of the said order may not be relevant at this point of time despite the pendency of the appeal, for the simple reason that the scope in appeal would be to adjudge the correctness of the order to the extent whether Mahavir Sharma, the biological father of the petitioner could or ought not to have been appointed as a guardian but once the petitioner now has attained the age of majority, the appeal in itself may not be any impediment for grant of any dues to the petitioner.

It will also be relevant to notice at this stage that in so far as the dues which were payable to the petitioner on account of the death of Late Sri Atar Singh was also declared to be payable to the petitioner by means of order dated 26.02.2011 and needless to say that there is no order staying the order dated 26.02.2011 since 2011.

It is also to be noticed that even while passing the order, the ADJ, Court No. 4 Moradabad had noticed the pendency of the Civil Suit between Mahavir Sharma and Joginder Sharma. Even during the pendency of the proceedings including the pendency of the F.A.F.O. No. 607 of 2011 no restrain order has been passed by any court restraining the respondents to not pay the dues whereas on the contrary the ADJ, Court No. 4, Moradabad in its order dated 26.02.2011 had clearly directed that dues be paid to the petitioner. Thus, there can be no justification for withholding the dues payable to the petitioner on account of pendency of the proceedings and even otherwise the right of the petitioner being the adopted son in terms of the adoption deed has not been set aside by any Court of Competent jurisdiction till date.

In so far as the other ground taken by the Union of India is concerned, the suit preferred by Sri Jogendra Singh who is the brother of Mahavir Sharma. In case if there is any dispute between Mahavir Sharma and Joginder Sharma which positively cannot have any impact on the right of the petitioner to receive the the post death dues of his adopted father. In any case, it was Mahavir Sharma who had given his son for adoption to Sri Atar Singh, if at all, there is any dispute, in respect of the adoption, Sri Jogendra Singh may not have cogent right to assail. For the same reason, any challenge to the order passed by the ADJ, Court No. 4, Moradabad as well as any dispute between Mahavir Sharma and Joginder Sharma would not affect the rights of the petitioner who being the adopted son of Late Atar Singh. Consequently, the objections raised by the respondents in depriving the payment to the petitioner is not legally tenable.

It is hereby clarified that any observation made by the Court on the pending suit between Mahavir Sharma and Joginder Sharma is only tentative to ascertain the justification for the Union of India to withhold the dues as payable to the petitioner and may not be taken as an expression of opinion on merits of the suit which will be decided by the concerned court in its own merits.

For the aforesaid reasons, the writ petition is allowed. This Court issues a writ of mandamus commanding the respondents to consider and pay all the outstanding post death dues as admissible to the petitioner on account of death of his adopted father late Sri Atar Singh while in service with the Railways along with admissible interests preferrably within a period of eight weeks from the date, a certified copy of this order is placed before the Authority concerned. In the aforesaid facts and circumstances, there shall be no order as to costs.

Order Date :- 14.2.2023/Asheesh