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Akash Shrivastava vs The Municipal Corporation Ujjain on 11 April, 2018

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Writ Petition No.18174/2017
(Akash Shrivastava Vs. The Municipal Corporation, Ujjain)
-1-

Indore, dated 11/04/2018

Parties through their counsel.

The petitioner before this Court has filed present petition

claiming compassionate appointment. The petitioner’s contention is

that Late Shri Kishore Shrivastava, who was unmarried, adopted the

petitioner and a deed was executed on 24/11/2010, which is on

record. It is a registered deed of adoption.

The petitioner’s contention is that after the death of his father,

who has adopted him, he has filed an application for grant of

compassionate appointment and the application for grant of

compassionate appointment has been rejected on the ground that

the government servant namely Late Shri Kishore Shrivastava was

not married.

Heavy reliance has been placed upon Clause 2(5) of the

policy relating to compassionate appointment dated 29/09/2014 by

the respondents and their contention is that because the word

“Dampatti” has been used in Clause 2(5), they will not grant

compassionate appointment to the adoptive son of a person who

has served the government / local body and was not married.

In the present case, the petitioner was adopted by Late Shri

Kishore Shrivastava. Section 6 and 11 of the Hindu Adoptions and

Maintenance Act, 1956 reads as under:-
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Writ Petition No.18174/2017
(Akash Shrivastava Vs. The Municipal Corporation, Ujjain)
-2-

“6. Requisites of a valid adoption- No adoption shall be
valid unless-

(i) the person adopting has the capacity, and also the
right, to take in adoption;

(ii) the person giving in adoption has the capacity to do
so;

(iii) the person adopted is capable of being taken in
adoption; and

(iv) the adoption is made in compliance with the other
conditions mentioned in this Chapter.

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

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

(iii) if the adoption is by a male and the person to be
adopted is a female, the adoptive father is at least
twenty-one years older than the person to be
adopted;

(iv) if the adoption is by a female and the person to be
adopted is a male, the adoptive mother is at least
twenty-one years older than the person to be
adopted;

(v) the same child may not be adopted simultaneously
by two or more persons;

(vi) 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 or in the case of an abandoned child
or a 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 homan, shall not be
essential to the validity of an adoption.”

The adoption deed, which is on record and which is a

registered deed, reflects that all the conditions were fulfilled in
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Writ Petition No.18174/2017
(Akash Shrivastava Vs. The Municipal Corporation, Ujjain)
-3-

respect of adoption and there is no dispute that the adoption which

has been done in the present case is violative of any of the statutory

provisions as contained under the Hindu Adoptions and

Maintenance Act, 1956. Thus, the respondents have also not

disputed the adoption of the petitioner vide registered deed of

adoption dated 24/11/2010.

Policy issued by the State Government in respect of grant of

compassionate appointment dated 29/09/2014 also entitles adoptive

child for grant of compassionate appointment. Clause 2(5) of the

policy reads as under:-

“2-5 ;fn e`rd ‘kkldh; lsod dh izkd`frd larku u gks rks ,slh
nRrd larku ftUgsa ‘kkldh; lsod ¼nEifRr½ }kjk ‘kkldh; lsod ds
thfor jgrs gq, oS/kkfud :i ls xksn fy;k gks A”

The aforesaid statutory provision of law empowers the

respondents to grant compassionate appointment to the adopted

child. The aforesaid clause nowhere states that in case a child is

adopted by an unmarried male, the adoptive child will not be entitled

for grant of compassionate appointment. By giving erroneous

interpretation to Clause 2(5), the respondents have denied the claim

of the petitioner for grant of compassionate appointment.

In the considered opinion of this Court, once the adoption

strictly was is in consonance with the Act of 1956 and the policy also

provides for grant of compassionate appointment to a person
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Writ Petition No.18174/2017
(Akash Shrivastava Vs. The Municipal Corporation, Ujjain)
-4-

whether the adoptive father was married or unmarried, has got no

relevance, keeping in view the Act of 1956 which permits unmarried

male to adopt a child.

Resultantly, order dated 26/08/2017 is hereby quashed and

the respondents are directed to consider the case of the petitioner

on merits for grant of compassionate appointment. The claim of the

petitioner will not be rejected on the ground that his father was

unmarried when the petitioner was adopted. The exercise of

considering the case of the petitioner be positively done within a

period of 30 days from the date of receipt of certified copy of this

order.

With the aforesaid, writ petition stands allowed.

Certified copy as per rules.

(S. C. SHARMA)
JUDGE
Tej

Digitally signed by
Tej Prakash Vyas
Date: 2018.04.16
16:20:37 +05’30’

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