HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 37

Case :- SPECIAL APPEAL No. – 872 of 2008

Appellant :- The State Of U.P. Thru’ Principal Secretary Others

Respondent :- Abhishek Bhardwaj

Counsel for Appellant :- Yogendra Kumar Yadav,S.C.

Counsel for Respondent :- A.P.S. Rathore,K.C. Sinha

Hon’ble Amreshwar Pratap Sahi,J.

Hon’ble Saral Srivastava,J.

Heard learned Standing Counsel for the appellants and Sri Sunil holding brief of Sri K.C. Sinha, for the respondent. The respondent/petitioner was extended the benefit of compassionate appointment upon the death of Krishna Chandra Sharma, who is stated to have adopted the respondent/petitioner. The death of the employee took place on 2nd August, 2001 whereafter the respondent/petitioner adduced evidence in his favour that he was the adopted son and also filed succession certificates in support of his case that was forwarded. Upon a consideration thereof the respondent/petitioner was granted appointment on 12th September, 2003.

After having worked for a substantial period, his services were terminated on 10th March, 2005 treating him to be in temporary service and applying the Temporary Government Servant Rules 1975. The respondent/petitioner filed the writ petition giving rise to this appeal challenging the said termination order on several grounds where a counter affidavit was filed on behalf of the State contending that the respondent/petitioner had been unable to prove his adoption, his date of birth was dubious and the documents indicated two sets of succession certificates having been filed, as such, his entire claim of compassionate appointment deserves to be annulled.

The learned Single Judge after having taken into consideration the entire facts came to the conclusion that the respondent/petitioner could not be treated as a temporary employee having been appointed on compassionate grounds, which is on substantive basis, and secondly it was not a case of any fraud or misrepresentation on behalf of the respondent/petitioner as he had disclosed entire facts with regard to his status of being the heir of late Sri Krishna Chandra Sharma. The petition was allowed and the order of termination dated 10th March, 2005 was quashed.

Learned Standing Counsel has urged that firstly even though the adoption is alleged to have taken place 10 years hence, its registration on 7th January, 1991 creates a doubt about the status of the adoption deed that came to be registered 10 years after adoption. He then contends that the date of birth as mentioned in the High School Certificate and the age disclosed in the adoption deed do not tally. He further submits that the U.P. Dying in Harness Service Rules 1974 does not make any provision for compassionate appointment of an adopted son. He then submits that an appointment made in contravention of law can always be cancelled and the nature of appointment of a compassionate appointee cannot be better than the status of a person appointed on probation on permanent and substantive basis. He therefore, submits that the U.P. Temporary Government Servant Rules 1975 would apply and the termination order is valid.

Replying to the said submissions learned counsel for the respondent/petitioner submits that there cannot be a temporary appointment on compassionate basis which is an engagement on the death of the bread earner of the family which necessarily entails continuance in service and therefore, is on substantive basis. He further submits that the appointment was validly made after having scanned the entire documents including the adoption deed and no facts were withheld from the employer about the status of the respondent/petitioner. It is further submitted that there is no authority available with the employer to have entered into the validity of the registration of the adoption deed nor can it be questioned in such proceedings and unless it is established on doubt it to be an outcome of fraud or misrepresentation, there being no such proof or evidence, the employer had no authority to cancel the appointment of the answering respondent on the mere basis of suspicion or doubt. The succession certificate are not under challenge and they were validly issued. It is therefore, submitted that none of the grounds taken are available to the appellants to question the correctness of the judgement of the learned Single Judge.

Having considered the submissions raised, the appointment on compassionate basis is an appointment on substantive basis. It is not a temporary appointment and is offered in order to relieve the burden of the family of the deceased whose sole bread earner having passed away, the family faces penury circumstances. This being the background of compassionate appointment rules, the contention on behalf of the appellants that it is a temporary appointment and therefore, the temporary Government Servant Rules would apply is incorrect.

There is nothing on record to indicate that the appointment of the respondent/petitioner was an outcome of fraud or misrepresentation or had been cancelled after holding any inquiry. The appellants therefore, could not have proceeded to terminate the services of the respondent/petitioner merely on the basis of some suspicion or doubt about the adoption deed. There is no dispute that the adoption deed was registered. There is also no dispute that the adoption of the respondent/petitioner is governed by the Hindu Adoption and Maintenance Act 1956 under which the registration of the deed is now compulsory. It is not necessary that the registration of the deed should take place as on the date of the adoption itself. The adoption having been witnessed the registration of the deed is only a certification of the adoption which has already taken place. There was no material placed by the appellants before the learned Single Judge so as to doubt the process of adoption or otherwise point out any fault in the registration of the adoption deed. Thus, a mere doubt on account of the mere gap between the date of adoption and the registration cannot be a ground to disbelieve the same. The appellant or it’s authorities cannot assume the cloak of a civil court to adjudicate the same.

Coming to the issue of the Dying in Harness Rules 1975 the definition of a dependant includes a son. The words son according to Hindu Law includes an adopted son. Thus, there being no such distinction drawn in the statute itself the aforesaid ground taken by the appellants is also unsustainable.

Another ground relating to the date of birth not tallying with the age of the respondent/petitioner as described in the adoption deed, suffice it to say that this discrepancy as alleged cannot be a ground to deny compassionate appointment. If there is any error in the date of birth the same case also be corrected for which relevant statutes are available. The appellants did not choose to take any such steps and therefore, the circumvented method adopted in order to doubt the date of birth of the respondent/petitioner also was impermissible. Consequently this ground also fails and cannot be taken as a ground for maintaining the appeal.

The last ground taken by the learned counsel for the appellant is about two different sets of succession certificates submitted by the widow of the deceased. This in no way establishes the status of the respondent/petitioner to be doubtful as the adopted son of the deceased. The said succession certificates do not indicate in any way as to the correctness or otherwise of the adoption of the respondent/petitioner.

We therefore do not find any error in the conclusions drawn by the learned Single Judge to allow the writ petition. We, therefore, affirm the same. The special appeal lacks merit and is hereby dismissed.

Order Date :- 10.11.2017

Israr