State Of U.P.Through Its Prin. ... vs Jainendra Pratap Singh
2023 Latest Caselaw 8 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 785 of 2010
 

 
Appellant :- State Of U.P.Through Its Prin. Secy. P.W.D.Lko. 2677 S/S09
 
Respondent :- Jainendra Pratap Singh

Counsel for Appellant :- C.S.C.

Counsel for Respondent :- Som Kartik,Ajay Pratap Singh

Hon'ble Ramesh Sinha J.

Hon'ble Subhash Vidyarthi J.

1. Heard Mr. Indrajeet Shukla, learned Additional Chief Standing Counsel for the appellants and Mr. Som Kartik, learned counsel appearing for the respondent.

2. This intra court appeal is directed against the judgment and order dated 25.03.2010, passed by an Hon'ble Single Judge of this Court in Writ Petition No. 2677 (S/S) of 2009, whereby the Hon'ble Single Judge has quashed the order dated 16.06.2008, passed by Executive Engineer, Nirman Khand-II, Lok Nirman Vibhag, Faizabad, rejecting the application moved by the petitioner (respondent in the special appeal) for compassionate appointment consequent to the death of an employee Ram Chandra Singh.

3. The aforesaid writ petition was filed by the petitioner claiming himself to be the son of Late Ram Chandra Singh stating that late Ram Chandra Singh was working as Peon under the Executive Engineer in Ganghut, Milkipur, Faizabad, who died on 25.06.2005 while he was still in service and that Late Ram Chandra Singh had adopted the petitioner on 14.01.1989 whereas an adoption deed had been executed on 21.04.2005. On 01.05.2006, the petitioner had submitted a representation claiming compassionate appointment consequent to the death of Ram Chandra Singh. The representation was rejected by the Executive Engineer by means of an order dated 16.10.2006. The petitioner challenged the rejection order dated 16.10.2006 by filing Writ Petition No. 9384 (S/S) of 2006 in this court, which was allowed by means of an order dated 17.03.2008 by the following order: -

"The instant writ petition is directed against the order dated 16.10.2006 passed by the Executive Engineer, rejecting the claim of the petitioner for appointment on compassionate ground under Dying-in-harness Rules in place of his late father.

I have heard the learned counsel for the parties at length and perused the material on record.

In the facts and circumstances of the case, I quash the order dated 16.10.2006 contained in Annexure no.1 and direct the petitioner to file a fresh comprehensive representation along with certified copy of this order as well as complete copy of the writ petition with all Annexures before the concerned competent authority within ten days from today and on such representation being filed, as stipulated above, the concerned competent authority shall decide the same assigning the reasons for not providing appointment instead of referring the legal opinion of DGC (Civil) within two months of the receipt of representation, as contemplated above, exercising its discretion on the basis of record before him in accordance with relevant Rules, recent government orders, scheme/policy without being influenced by any of the observations in this judgment since this Court has not entered into the merits of the present case.

Subject to the above observations and directions writ petition stands partly allowed by molding the relief to the extent indicated above."

4. Subsequent to the passing of the aforesaid order dated 17.03.2008, the petitioner submitted a fresh representation, which too was rejected by means of an order dated 16.06.2008, passed by the Executive Engineer stating that late Ram Chandra Singh had been appointed as a Chowkidar in the work-charge establishment on 01.08.1080. In a nomination form submitted on 19.09.1991 he had nominated one Mr. Shiv Onkar Singh, describing the later as his son. He had nominated Shiv Onkar Singh as the beneficiary of his family pension, death-cum-retirement gratuity, group insurance scheme and G.P.F., describing him as his nephew.

5. The fact of death of Ram Chandra Singh was communicated by Sri Shiv Onkar Singh on 25.06.2005. After about ten months since the death of late Ram Chandra Singh, on 01.05.2006, the petitioner gave an application claiming compassionate appointment in place of Ram Chandra Singh, claiming himself to be an adopted son of the deceased employee on the basis of an adoption deed dated 21.04.2005, which had been verified by a Notary Public.

6. The petitioner also relied upon an order dated 02.04.2006, passed in Lok Adalat by the Civil Judge (Senior Division), Faizabad in M.N.R. No. 341/2005 declaring the petitioner to be the heir of late Ram Chandra Singh in respect of certain dues payable by the department and the order describes the adoption deed as a "registered adoption deed" but through a subsequent insertion, the adoption deed has been described as "adoption deed registered by a notary".

7. In the order dated 16.06.2008, the Executive Engineer has mentioned that under Section 16 of the Hindu Adoptions and Maintenance Act, 1965, an adoption can take place only through a registered adoption deed and in absence of registration of the deed, the adoption will not be legal. The order further states that although the alleged adoption deed mentions that late Ram Chandra Singh had adopted the petitioner on 14.01.1989 when the petitioner was aged about six years only, the educational certificates of the petitioner mention the name of his father as Bansh Bahadur Singh, who is natural father of the petitioner, and the name of Ram Chandra Singh is not mentioned in any of the educational certificates of the petitioner. Referring to a judgment of this Court reported in 1996 Alld. Law Report Page 50 the Executive Engineer held that the adoption deed is illegal and it appears that the order dated 02.04.2006 has been passed by the Civil Judge without the correct facts having been placed before him, by misleading the Court.

8. The Executive Engineer further held that on 23.09.1981, a Government Order No.6646-15-7-V(76)/1981 was issued providing that only such an adopted son can claim compassionate appointment regarding whom the requisite legal formalities had been completed by the concerned employee during his service tenure. The petitioner had not been adopted by the deceased employee Mr. Ram Chandra Singh through a registered adoption deed. For the aforesaid reasons, the Executive Engineer rejected the petitioner's representation claiming compassionate appointment.

9. For ready reference Sections 11 and 16 of the Hindu Adoptions and Maintenance Act, 1956 are being reproduced quoted below: -

10. "11 Other conditions for a valid adoption. --In every adoption, the following conditions must be complied with:--

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) ...

(iii) ...

(iv) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth 1 or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:

Provided that the performance of datta homam shall not be essential to the validity of adoption.

* * *

16. Presumption as to registered documents relating to adoption. -- (1) 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.

(2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force: Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872."

(Emphasis Supplied)

11. Sub-section (2) has been inserted in Section 16 of the Hindu Adoptions and Maintenance Act, 1956 by a State Amendment. Undisputedly there is no adoption deed evidencing adoption of the petitioner by the deceased employee and any other evidence to prove the adoption cannot be looked into.

12. A perusal of the judgment passed by Hon'ble Single Judge indicates that he had not addressed this aspect of the matter and he proceeded on the premise that the petitioner had been validly adopted by the deceased employee. The Hon'ble Single Judge has noticed that by means of an order dated 02.04.2006, the Civil Judge had declared the petitioner to be the legal heir of the deceased Ram Chandra Singh, but a perusal of the aforesaid order passed by the Civil Judge indicates that the aforesaid order passed in a Lok Adalat mentions the name of the petitioner as the applicant and nobody is mentioned as the opposite party in the case; the order mentions presence of the counsel for the petitioner only and it describes the adoption deed as "a registered adoption deed", although subsequently by way of correction, it has been described as "an adoption deed registered by notary", although a Notary is not authorized to register any deed and deed of adoption can only be registered by the Sub registrar. The aforesaid order dated 02.04.2006 cannot be treated as a decree of declaration of the legal status of the petitioner as the adopted son of the deceased employee and the order having been passed in a Lok Adalat on the petitioner's application, without any opposite party / defendant / respondent having been arrayed who could have opposed the application, and without any adjudication, the aforesaid order would not confer legal status of the deceased employee's adopted son upon the petitioner.

13. There is one more aspect of the matter, which appears to have escaped the attention of Hon'ble Single Judge, which is that the deceased employee had been appointed in the work-charge establishment and there is nothing on record to indicate that his service had been regularized. Rule 2-A of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 defines the Government Servant as under: -

"2. Definitions. - In these rules, unless the context otherwise requires,-

(a) "Government servant" means a Government servant employed in connection with the affairs of Uttar Pradesh who-

(i) was permanent in such employment; or

(ii) though temporary had been regularly appointed in such employment; or

(iii) though not regularly appointed, had put in three years' continuous service in regular vacancy in such employment.

Explanation. - "Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be;

14. In the case of Pawan Kumar Yadav Vs. State of U.P. and others; (2010) 8 ADJ 664 a Full Bench of this High Court held as under:

"A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ''Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974, and thus his dependents on his death in harness are not entitled to compassionate appointment under these Rules."

15. An employee appointed in work charge establishment would not fall within the definition of "government servant" giving in Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 and, therefore, irrespective of validity of adoption of the petitioner by the deceased employee, the petitioner would not be entitled to be appointed under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

16. In view of the aforesaid discussions, we do not find ourselves in agreement with the view taken by the Hon'ble Single Judge and we are of the opinion that this intra court appeal deserves to be allowed for the aforesaid reasons.

17. Accordingly, the Special Appeal is allowed. The judgment and order dated 25.03.2010, passed in Writ Petition No. 2677 (S/S) of 2009 is hereby set aside and the writ petition is dismissed. However, there will be no order as to costs.

(Subhash Vidyarthi, J.)    (Ramesh Sinha, J.)
 
Order Date :- 2.1.2023
 
Ram.