IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15152 of 2019
Arun Kumar, aged about 41 years, Sex-Male, Son of late Rajeshwar Pandit,
Resident of Mohalla-S.C.E.R.T. Campus, Post Office-Mahendru, Police
Station-Sultanganj, District-Patna.
… … Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Education Department,
Government of Bihar, Patna.
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. The Director, State Council of Educational Research and Training,
Mahendru, Patna- 800006.
4. The Deputy Director, State Council of Educational Research and Training,
Mehendru, Patna- 800006.
… … Respondent/s
Appearance :
For the Petitioner/s : Mr. S.N. Yadav, Adv.
Mr. Umesh Prasad, Adv.
For the State : Mr. Jai Prabhat Kishore, Adv.
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT
Date : 01-08-2019
Heard the counsel for the parties.
2. The petitioner has challenged the order dated
14th February, 2019, contained in Memo No. 264, passed by
the Director, State Council of Educational Research and
Training, Mahendru, Patna, whereby the claim of the
petitioner for being appointed on compassionate ground has
been rejected on the ground that the evidence offered on
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behalf of the petitioner belies the fact that he has been
adopted by an employee who has died in harness.
3. The petitioner had approached this Court
earlier vide C.W.J.C. No. 13279 of 2014 when his claim for
being appointed on compassionate ground, as being the
adopted son of the deceased employee, was rejected.
4. This Court vide order dated 14th August,
2018, passed in C.W.J.C. No. 13279 of 2014, and relying
upon a judgment of this Court in Union of India Ors.
Vs. Most. Shitali Devi Anr.; 2002 (4) PLJR 62 ,
directed the concerned respondent to consider the case of
the petitioner afresh, taking into account that compassionate
appointment is for the purposes of solving human problems
and when there should not be any unnecessary adherence to
technical issues.
5. Pursuant to the aforesaid order passed by this
Court, the petitioner made an application before the
Director, State Council of Educational Research and Training,
Mahendru, Patna, seeking his appointment on compassionate
appointment.
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6. In support/proof of the fact that the petitioner
has been adopted by the late employee, viz., Rajeshwar
Pandit, a sale-deed was produced in which the petitioner has
been shown as the son of late Rajeshwar Pandit. An
adoption certificate, countersigned by the Mukhiya of the
Panchayat as well as the biological father of the petitioner,
has also been brought on record.
7. The claim of the petitioner was negatived
because of the fact that he was found to have been adopted,
according to his claim, in the year 1991, when he was
slightly above 12 years of age, but the matriculation
certificate of the petitioner shows that he had passed the
same in the year 1994 and in which his father’s name has
been shown as Harikishun Pandit, who is his biological
father. In other educational certificates also, the name of
the father of the petitioner is shown as Harikishun Pandit,
who is his biological father. However, in all other documents
which were furnished by the petitioner, viz., Aadhar Card
and Voter Identity Card etc., the petitioner father’s name is
shown as Rajeshwar Pandit, who has adopted the petitioner.
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8. It is necessary to be noted that the late
employee/Rajeshwar Pandit is the own brother of the
biological father of the petitioner, who remained issueless for
a long time. Under the aforesaid circumstance, the
petitioner was given in adoption by his biological father with
the consent of his mother to Rajeshwar Pandit. Had it not
been the case, late Rajeshwar Pandit would not have named
the petitioner as his nominee in his Pension papers.
9. The wife of late Rajeshwar Pandit has also
given a ‘No Objection’ and has certified that the petitioner is
the adopted son of late Rajeshwar Pandit and her (Meena
Devi).
10. Thus, the only set of documents which has
been relied upon by the respondent in rejecting the claim of
compassionate appointment are the educational certificates
of the petitioner.
11. For an adoption to be valid, it must conform
to the requisites set-forth in Section 6 of the Hindu
Adoptions and SectionMaintenance Act, 1956. For any adoption to
be valid, it is necessary that the person adopting has the
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capacity as also the right to take in adoption and there is a
corresponding right of the person giving a child in adoption.
The person adopted also is required to have the capacity for
being taken in adoption. The other conditions of valid
adoption which have been enumerated in Section 11 of the
Act veers around the unconditional giving and taking of a
person/child in adoption where both the parties, i.e., the one
who is adopting and the other who is giving in adoption,
have the capability and the right to do so.
12. The effect of adoption has been defined in
Section 12 of the Act, which mandates that any adopted
child would be deemed to be child of his adoptive parents for
all purposes, with effect from the date of the adoption and
from such date, all the ties of the child in the family of his or
her birth shall be deemed to be severed and replaced by
those created by adoption in the adoptive family.
13. Certain other conditions are attached to the
person who is taken in adoption and such condition become
operative from the date of such adoption. To recount a few,
the adopted child cannot marry any person whom he or she
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could not have married, if he or she had continued in the
family of his or her birth and any property which vested in
the adopted child before the adoption shall continue to vest
in such person, subject to the obligations, if any, attaching
to the ownership of such property, including the obligation to
maintain the relatives in the family of his or her birth.
14. A document depicting adoption is not
compulsorily to be registered. However, a presumption
follows, if the document relating to adoption is registered.
Section 16 of the Act attaches such presumption on
registered documents relating to adoption.
15. Thus, from the facts of this case, few things
emerge without any dispute, viz., (i) the adoptive father is
the own uncle of the petitioner; (ii) the certificate of
adoption which has been countersigned by the biological
father of the petitioner and the Mukhiya of the locality has
not been questioned or held to be a spurious document; (iii)
the document relating to purchase of a property, which in a
lower-middle class family is an important acquisition for life,
displays that the petitioner is the son of late Rajeshwar
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Pandit, who had adopted the petitioner; (iv) the Aadhar Card
and the Voter Identity Card which are most necessary
documents also show that the petitioner is the son of his
adoptive father/Rajeshwar Pandit.
16. With these evidence and the presumption
under Section 11 of the Act, read with the effect of such
adoption as mandated in Section 12 of the Act, even if in the
matriculation certificate and other educational certificates, no
care has been taken to get the name of the father of the
petitioner corrected and insert the name of the adoptive
father, it would not be sufficient to reject/negative the claim
of the petitioner which would attach to him as the adopted
son of his adoptive father.
17. The Director, State Council of Educational
Research and Training, Mahendru, Patna, it appears,
misdirected himself in assessing the evidence and deciding
the matter on the basis of probability of evidence. The
preponderance of evidence is in favour of the petitioner that
he is the adopted son of the late employee.
18. While the matter was remitted to the
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Director to pass a reasoned order in accordance with law, the
Bench of this Court took special care to quote an instructive
paragraph from the judgment in Union of India Vs. Most.
Shitali Devi (supra), which is also being extracted here for
ready reference:-
“4. The Court is of the view that
this matter should not be made an issue
and the logic of a regulation is not going to
solve any human problem. If the
employees, who are being considered, are
class IV employees then regard being had
to the realities it is unlikely that in that
strata of the society issueless couples go
through the formality of the law and make
an adoption and have it duly registered.
This is a common law concept. An oriental
society such as ours containing an
amalgam of many cultures does by practise
and custom resort to resolving problems
within the family and society, and adoption
is one such modality. Indian marriages in
generality do not see a registration but are
conducted on custom. The case before the
railway was one such circumstance. If the
railway takes the posture that the
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strictness of the regulation must apply,
then it is clear that no Class IV employees’
wards may get an employment if adopted.
Nobody apprehends death of an earning
member so as to keep papers as a record,
to be made available for such an
eventuality. The eventuality is to seek
employment on the rule of harness. In
India amongst economically weaker
sections of the society, and at times the
middle class not excluded, the generality is
that children are adopted and are brought
up by foster parents without the rigours of
a registered document. This is one such
matter where a hard or fast rule or a rigid
interpretation of the regulation may,
perhaps provide a soul-less escape for the
railway administration but it will defeat the
rule of harness and not solve a problem of
life for a class for whom the rule was
meant. Fraud, mischief, misrepresentation
may by all means be inquired, so as not to
render the Rule of Harness in service
nugatory. But if the relationship of
adoption and foster parents be bonafide
and not manufactured to defeat a
regulation, such a relationship, exceptions
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apart as pointed out, should be accepted.”
19. The Division Bench in the aforesaid
judgment laid stress on the financial conditions of a family in
ordinary setting of life where such requirements of getting a
deed of adoption registered is neither taken seriously nor
any attempt is made to act in such prudent manner. The
amalgam of various cultures in a society of which the
petitioner is an integral part has to be understood in its true
spirit and undue adherence to the technicalities which shall
be counter-productive.
20. Apart from this, the order impugned can
also be faulted on the ground that even when such
meticulous assessment and weighing of evidence was being
carried out, which was not required, the concerned
respondent ought to have seen that the balance, even in that
case, lay over the fulcrum to the side of the petitioner.
21. The claim of the petitioner can further be
tested on the basis of the principles of appreciating evidence.
22. The burden of proof of any legal right or
liability which is dependent on the existence of the fact,
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which is asserted by a person, lies on such person who is to
prove the existence of such fact. Along with the burden,
onus is also on him. With respect to the particular fact of
the petitioner having been taken in adoption by the late
employee, who died in harness, is on the petitioner and the
same was discharged in the best possible manner by
bringing on record the certificate of adoption, though
unregistered and other documents which are of immense
importance and which a person uses in daily course of life,
viz., the Aadhar Card and the Voter Identity Card. Many
important rights flow from these documents. Once the
burden of proof is on the claimant and the initial onus was
discharged by him for staking his claim for being considered
for compassionate appointment, the onus shifted on the
authority to dispel/disprove the same, which has not been
done in the present case. Merely because in the educational
certificates, relevant correction with respect to the name of
the father of the petitioner was not carried out, the claim of
the petitioner could not be rejected.
23. For the aforesaid reasons and discussion,
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this Court finds that the issue requires a re-look by the
Director, State Council of Education Research and Training,
Mahendru, Patna (respondent No. 3).
24. The order impugned is, therefore, set-aside.
25. The matter is remitted to the Director, State
Council of Education Research and Training, Mahendru,
Patna (respondent No. 3) to look at the claim of the
petitioner in the correct perspective, as has been explained
in the order, and not to look at the case of the petitioner
with a tunnel vision of testing the correctness of the claim
only on the basis of the rules/regulations governing such
aspect of grant of compassionate appointment.
26. A fresh order shall be passed within a period
of eight weeks from the date of receipt/production of a copy
of this order before the concerned respondent.
27. With the aforesaid observation/direction, the
writ petition stands disposed off.
(Ashutosh Kumar, J)
Praveen-II/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 06.08.2019
Transmission Date N/A