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Arun Kumar vs The State Of Bihar on 1 August, 2019

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

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