Rajasthan High Court - Jodhpur
Rajendra Kumar Sharma vs State Of Rajasthan (2025:Rj-Jd:11588) on 27 February, 2025
[2025:RJ-JD:11588]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13241/2021
Aakash Prajapat S/o Adopted S/o Shri Madan Lal Prajapat,
Aged About 23 Years, By Caste Prajapat, R/o House No. 65, C-
Block, Sector-14, Tehsil Girwa, District Udaipur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Education
Department, Government Of Rajasthan, Secretariat,
Jaipur, Rajasthan.
2. The Joint Director, Department Of Elementary Education,
Bikaner, Rajasthan.
3. The District Education Officer (Elementary), District
Udaipur, Rajasthan.
----Respondents
Connected with
S.B. Civil Writ Petition No. 9759/2020
Rajendra Kumar Sharma S/o Late Shri Heera Lal Sharma, Aged
About 35 Years, B/c Brahmin, R/o Village Post Bavlas, Tehsil
Rashmi, District Chittorgarh, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Education
Department, Government Of Rajasthan,, Secretariat,
Jaipur, Rajasthan.
2. The Director, Department Of Elementary Education,
Bikaner, Rajasthan.
3. The Additional Director (School Education), Udaipur
Division, District Udaipur, Rajasthan.
4. The District Education Officer, Chittorgarh, Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 3247/2021
Chhota Ram S/o Shri Rawata Ram, Aged About 38 Years, B/c
Harizan , R/o Harizan Colony , Tehsil Sanchore , Distt. Jalore ,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary , Local Self
Department , Government Of Rajasthan , Secretariat ,
Jaipur , Rajasthan .
2. The Executive Engineer, Nagar Palika , Sanchore , Distt.
Jalore , Rajasthan.
----Respondents
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For Petitioner(s) : Mr. Manish Patel
Ms. Nandipna Gehlot
Mr. Rishabh Tayal
For Respondent(s) : Mr. Kamlesh Sharma.
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
27/02/2025
1. Vide this common order, the aforesaid bunch is being
disposed of together as both the facts and the issue involved
therein is similar.
2. Illustratively, for the sake of brevity, facts are being taken
from S.B. Civil Writ Petition No.13241/2021. Petitioner herein,
inter-alia, seeks issuance of appropriate writ, order and/or
direction commanding the respondents to consider his application
for grant of compassionate appointment on the post of LDC owing
to death of his father in harness.
3. Petitioner claim to be an adopted son of deceased Shri
Madan Lal Prajapat, who served as a Class IV employee at
Government Primary School in Sundervas, District Udaipur.
Petitioner's adoptive father passed away in 2016. He applied for
compassionate appointment for the post of LDC in accordance
with the Rajasthan Compassionate Appointment of Dependents of
Deceased Government Servants Rules, 1996 ("Rules of 1996").
However, despite being fully qualified and eligible for appointment
under the provisions of the Rules of 1996, petitioner's application
was rejected by respondent No. 3 vide an order dated 10.08.2021
on the ground that the adoption deed was not in accordance with
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the provisions of Section 10 of the Hindu Adoption and
Maintenance Act, 1956. Hence this petition.
4. In the aforesaid backdrop, I have heard the rival contentions
and perused the case file.
5. Learned counsel for the petitioners relies on various
judgments, which are as below :-
1. Mohan Singh Bhati Vs. State of Rajasthan
(SBCWP No.9943/2022), decided on 11.08.2023;
2. Ronak Joshi Vs. State of Rajasthan (SBCWP
No.8556/2020), decided on 02.09.2022;
3. Jay Kumar vs. The Bihar State Electricity Board
(Letter Patent Appeal No.866/2005 in Civil Writ
Jurisdiction Case No.6844/2005), decided on
04.08.2015.
6. First and foremost, reference may be had to the pointed
stand taken in the reply filed by the respondents. Relevant thereof
is reproduced herein below:-
"2. That the averments made in para no.2 of the writ petition are
matter of record and same are not admitted. It is denied that petitioner
is adopted son of Madan Lal Prajapat as there is no Adoption deed as
per Section 10 of Hindu Adoption and Maintenance Act, 1956 and in
all the educational documents, the name of biological father has been
mentioned, therefore, the petitioner cannot be said to be adopted son of
late Madan Lal Prajapat.
3. That the averments made in para no.3 of the writ petition are
not admitted and same are denied. As stated above, there is no
Adoption deed as per Section 10 of Hindu Adoption and Maintenance
Act, 1956 and in all the educational documents, the name of biological
father has been mentioned, therefore, the petitioner cannot be said to
be adopted son of late Madan lal Prajapat and thus, he is not entitled
for compassionate appointment under the Rules of 1996.
xxxx xxxx xxxx xxxx xxxx xxxx
8. That in reply to para no.8 of the writ petition, it is submitted
that the petitioner does not fall within the definition of dependent as
there is no adoption deed under Section 10 of the Act of 1956 showing
that the petitioner is the adopted son of late employee, therefore, his
application for compassionate appointment was not considered. As
stated above, 'Dependant' means a spouse, son, unmarried or widowed
daughter, adopted son/adopted unmarried daughter, legally adopted by
the deceased Government servant during his/her life time and who
were wholly dependent on the deceased Government servant at the
time of his/her death. Since the petitioner is not legally adopted son of
deceased employee, he is not entitled for appointment on
compassionate ground."
7. Having gone through the judgments ibid, I am in agreement
with the proposition of law laid down therein, however, since the
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disputed facts are involved in the present petitions, which cannot
be resolved through extra ordinary writ jurisdiction and evidence
is required to be adduced by the respective parties, I find no
grounds to interfere.
8. Reference may, in this regard, be had to a judgment titled
Narendra Singh Vs. State of Rajasthan & Ors. : S.B. Civil
Writ Petition No. 12002/2023, decided on 02.05.2024, which
too, coincidentally was rendered by me. Relevant thereof is
extracted hereinbelow:-
"6. I have seen the judgment rendered in Mohan Singh Bhati
(ibid). I am of the view that it is per incurium in view of the clear
provision explained by the Division Bench of this Court at Jaipur
Bench in the case of Kumari Vinita Sharma Vs. Union of India &
Ors., decided on 15.01.2014 read with the judgment of the Supreme
Court rendered in the case of Atluri Brahmanandam (D) Thr. LRs
Vs. Anne Sai Bapuji [AIR 2011 SC 545]. In any case, the Division
Bench view taken in Kumari Vinita Sharma judgment has to take
precedence over that of the Single Bench judgment in Mohan Singh
Bhati.
7. In the case of Kumari Vinita Sharma (ibid), it was held as
under:-
"11. In the instant case, apart from the adoption deed,
which the petitioner claimed to have been registered
(much before the death of the Government employee)
the petitioner, in succession got all the retiral dues of
late Government employee and there was no other
person dependent upon the deceased employee except
the petitioner, in view of the principles laid down by
the Apex Court one cannot claim compassionate
appointment in due course of time or after the crisis is
over, in the instant case as well, when the petitioner
additionally got all retiral dues of the late
Government employee, in succession and no other
family member was dependent upon the deceased
employee, at least, she cannot be said to be under
financial crunch or distress even at the relevant point
of time when she approached to the Tribunal for
seeking compassionate appointment and apart from it,
the petitioner for the first time approached by filing of
original application in the later part of 2004 after two
years of the death of the deceased employee which
took place in February, 2002, and in our considered
view as well, when the compassionate appointment
cannot be claimed as a matter of right and sufficient
means were available with the petitioner being an
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adopted daughter of the deceased-employee, as
alleged and as regards Sec. 16 of the Act, 1956 has
not been looked into by the Tribunal, suffice it to say
that Sec.10 (4) of the Act, 1956 ordinarily debars an
incumbent to take in adoption a child who have
crossed the age of 15 years and indisputably, the
petitioner was 25 years of age and from the material
which has come on record even before this Court
regarding the customs and usage prevalent in the
society/community of the petitioner, we too are not
satisfied and merely because it was a registered
adoption deed, no presumption could be drawn that
may be helpful for the petitioner to seek
compassionate appointment."
In the case of Atluri Brahmanandam (D) Thr. LRs (ibid),
Hon'ble the Supreme Court has held as under:-
"12. We are concerned for the purpose of this case
with clause (iv) of Section 10 which provides that a
person to be adopted should not have completed the
age of 15 years. But there is also an exception
provided therein to the aforesaid required
qualification which provides that if there is a custom
or usage applicable to the parties permitting persons
who have completed the age of 15 years being taken
in adoption, such a person could also be validly
adopted. On the other hand, the effect and the
implication of Section 16 of the Act is that if there is
any document purporting to record an adoption made
and is signed by the person giving as well the person
taking the child in adoption is registered under any
law for the time being in force and if it is produced in
any Court, the Court would presume that the adoption
has been made in compliance of the provisions of the
Act unless and until it is disproved.
13. There is no denial of the fact in the present case
that the respondent was more than 15 years of age at
the time of his adoption. But the respondent has relied
upon the exception provided in section 10 (iv) and has
proved by leading cogent and reliable evidence like
Ex. A-8 that there is a custom in the "Kamma"
community of Andhra Pradesh for adoption of a boy
even above the age of 15 years. Therefore, the
aforesaid exception which is engrafted in the same
part of the provision of Section 10 of the Act was
satisfied. Since the aforesaid custom and aforesaid
adoption was also recorded in a registered deed of
adoption, the Court has to presume that the adoption
has been made in compliance with the provisions of
the Act, since the respondent has utterly failed to
challenge the said evidence and also to disprove the
aforesaid adoption."
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8. The aforesaid two judgments were not brought to the notice of
the learned Single Judge while deciding the case of Mohan Singh
Bhati (ibid). The said Single Bench judgment in Mohan Singh Bhati,
therefore, cannot be applied to the facts of the present case where the
conceded position is that at the time of adoption, petitioner was of 18
years, which is in direct conflict with the statutory requirement
provided in Section 10(4) of the Act of 1956. For ready reference,
Section 10(iv) is reproduced hereunder:-
"10. Persons who may be adopted.--
No person shall be capable of being taken in adoption
unless the following conditions are fulfilled, namely:
--
(i) xxx xxx;
(ii) xxx xxx;
(iii) xxx xxx;
(iv) he or she has not completed the age of fifteen
years, unless there is a custom or usage applicable to
the parties which permits persons who have completed
the age of fifteen years being taken in adoption."
9. The aforesaid Section has to be read homogeneously with
Section 16. No doubt, under Section 16, presumption has been
envisaged in favour of the biological parents but the said
presumption has to be in compliance with the requirement of Section
10(iv) ibid.
10. In the present case, it is borne out from the certificate of the
petitioner (Annex.1) that he was aged 18 years at the time of his
adoption on 13.12.2013. It is not even the case of the petitioner that
there is certain special custom, which permits adoption of a child
regardless of his age so s to seek applicability of Atluri
Brahmanandam (D) Thr. LRs judgment, ibid.
11. In view thereof, there is no ground to interfere.
12. Dismissed accordingly."
9. Trite it may sound that the benevolence policy of the State is
intended to provide immediate succor to the family of the sole
earning member who dies in harness, so that the family can be
saved from starvation, sheer penury and the unforeseen financial
calamity with which it is visited.
10. Furthermore, it is evident that the petitioners have failed to
establish the validity of their respective adoptions under Section
10 of the Act of 1956. Consequently, they do not qualify as a
'dependent' under the Rules of 1996 and are not entitled to
compassionate appointment.
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11. That apart, source of compassionate appointment cannot be
treated as a reservation. It is not an alternative route for
appointment by way of backdoor entry at the cost of a competent
candidate being denied the job in question.
12. Being so, the petitions are accordingly dismissed with liberty
to seek remedy to establish the adoption in accordance with law,
including filing of the civil suit, if so advised.
13. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J
99 to 101-DhananjayS/Rmathur-
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