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Deepak Singh Yadav vs Union Of India Thr. on 26 July, 2019

1
Mics. Petition No.5053/2018

THE HIGH COURT OF MADHYA PRADESH
MP-5053-2018
[Deepak Singh Yadav vs. Union of India Ors.]
Gwalior, Dated 26.07.2019

Shri Pavan Dwivedi and Shri Dharmendra Dwivedi along-

with Ms. Sonal Mittal, learned counsel for the petitioner.

Shri Suil Gupta, learned counsel for the respondents.

In view of the fact that Union of India through its Secretary,

Ministry of Railways was arrayed as respondent No.1 before

Central Administrative Tribunal, Jabalpur Bench, Jabalpur, and no

objection was raised by the Union of India against said

impleadment, we are not inclined to entertain I.A. No.2833/2018;

whereby, the Union of India through its Secretary, Ministry of

Railways, New Delhi seeks its deletion from the array of

respondents. Consequently, I.A.2833/2018 stands dismissed.

With the consent of learned counsel for the parties, the matter

is finally heard.

1. Dismissal of Original Application filed before the Central

Administrative Tribunal, Jabalpur Bench, Jabalpur by order dated

12/03/2015 has led the petitioner file this petition.

2. The original Application was directed against action of the

respondent-Railways in not considering the case of the petitioner

for appointment on compassionate ground. The claim of the
2
Mics. Petition No.5053/2018

compassionate appointment was put-forth by the petitioner on the

anvil of adoption deed dated 11/04/1997, in lieu of death of one

Devendra Singh Yadav who died on 10/11/1997, and on the anvil of

Succession Certificate issued by the Civil Court under Section 372

of the Indian Succession Act, 1925. The petitioner had also relied

on the policy of the Railways as contained in R.B.E. No.106/88

which stipulates:

“R.B.E. No. 106/88
Subject: Appointment of adopted sons/daughters
on compassionate grounds.

No. E(NG) ll/86/RC-1/1/Policy, dated 20.5.1988
In terms of para ll of instructions contained in
Para ll of Board’s letter No. E(NG) lll/78/RC-1/1
dated 7.4.1983, son/daughter/widow/widower of
the employees are eligible to be appointed on
compassionate grounds in the circumstances in
which such appointments are permissible.

2. A question has been raised whether adopted
sons/daughters are eligible to be considered for
compassionate appointment. The matter has been
considered and the Board have decided that an
adopted son/adopted daughter will also be
eligible to be considered for appointment on
compassionate grounds (in circumstances in
which such compassionate appointment is
permissible) in case all the following conditions
are satisfied :

(i) There is satisfactory proof of
adoption valid legally ;

(ii) The adoption is legally recognised
under the personal law governing the
railway servant ;

(iii) The legal adoption process has
been completed and has become valid
before the date of death/medical
decategorisation /medical
3
Mics. Petition No.5053/2018

incapacitation (as the case may be) of
the ex-employee.

3. For example, it may be noted that under
Section 11 of Hindu Adoption and SectionMaintenance
Act, adoption can be made only if the adopted
father or mother by whom the adoption is made
does not have a Hindu son or daughter, whether
by legitimate blood relationship or by adoption
living at the time of adoption.

4. Past cases dealt with otherwise need not be
reopended.”

3. The Tribunal on the finding that the claim of the petitioner

was rejected on the ground that the deed of adoption disclosed that

the biological father and mother of the applicant has not given the

applicant in adoption to Devendra Singh Yadav which being

mandatory under Section 9 of the Hindu Adoptions and

SectionMaintenance Act, 1956 (for short “Act of 1956”). And that the

adoption was found to be invalid in the terms of Section 6(2) and

was thus void under Section 5 of the Act of 1956, declined

indulgence.

5. It is contended on behalf of the petitioner that the Tribunal

grossly erred in mis-appreciating the legal provision.

6. Learned counsel for the respondent supports the order passed

by the Tribunal.

7. Considered the rival submissions.

8. The adoption deed on the basis whereof the petitioner was

seeking appointment on compassionate ground is un-registered
4
Mics. Petition No.5053/2018

instrument and is in the following terms:

^^xksn ukek
eSa nhokuflag iq Jh ewypan ;kno] vk;q 53 lky] fuoklh
jsYos dkWyksuh xquk] ijxuk o ftyk xquk dk gw¡ %
nhid ;kno ukckfyx vk;q 5 lky] iq Jh uUuwyky th
;kno] fuoklh jsYos dkWyksuh xqukA
tks fd eSa jsYos dkWyksuh xquk] rglhy o ftyk xquk dk fuoklh gw¡A
tks fd eSaus fookg ugh fd;k esjh vk;q orZeku esa 53 o”kZ dh gS esjs
thou dk dksbZ Hkjkslk ugh jgk gS dc vUr gks tkos vkSj esjh py
vpy laifRr ds ckjs esa vdkj.k dks dksbZ fookn mRiUu u gks blfy;s
eSa vius NksVs HkkbZ ds iq nhid ;kno dks xksn ysrk gw¡ vkSj esjh py
o vpy laifRr dk ,d ek okfjl esjs HkkbZ dk iq nhid ;kno
jgsxkA
tc rd eSa thfor gwW rc rd ;gh esjh lsok pkdjh ns[kjs[k vkfn
djsxkA
Hkfo”; esa fdlh izdkj dh dksbZ vkifRr vkfn djrk gks rks bl xksnukek
ys[k ds eqdkcys esa vekU; ekuh tkosxhA esjh e`R;q ds i’pkr~ nhid
;kno gh laEiw.kZ lEifRr dk mRrjkf/kdkjh ,d ek jgsxkA

jft- Ø ekad fnukad % 110497
%nhokuflag iq Jh ewypan ;kno fu-
jsYos dkWyksuh xqukA
%okLrs xksnukek ] gLrs fot;dqekj
fprkEojs
fdQk;r mYyk
LVkEi foØ srk dys- xquk^^

9. Section 5 of the Act of 1956 mandates that no adoption shall

be made after the commencement of this Act by or to a Hindu

except in accordance with the provisions contained in this Chapter,

and any adoption made in contravention of the said provisions shall

be void. And that an adoption which is void shall neither create any

rights in the adoptive family in favour of any person which he or

she could not have acquired except by reason of the adoption, nor

destroy the rights of any person in the family of his or her birth.”

10. Furthermore, Section 6 of the 1956 Act stipulates requisites

of a valid adoption. It envisages that no adoption shall be valid
5
Mics. Petition No.5053/2018

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 II.

11. Furthermore, Sub-section (1) of Section 9 of the 1956 Act

stipulates that no person except the father or mother or the guardian

of a child shall have the capacity to give the child in adoption. Sub-

section (2) of Section 9 of the Act of 1956 Act envisages that

subject to the provisions of sub-section (4), the father or the mother,

if alive, shall have equal right to give a son or daughter in adoption.

12. In the case at hand, learned counsel for the petitioner is at

loss to establish that the godnama (adoption deed) is in the terms

and in consonance with the statutory stipulations as contained in the

Act of 1956 which would have had the binding effect on the

Railways for consideration of an application for appointment on

compassionate ground.

13. Further contention by learned counsel for the petitioner need

a mention. It is urged that the Railways having acknowledged the

succession certificate issued by the competent Court on an

application under Section 372 of the Indian Succession Act, 1925

and having extended the retiral benefits enuring to Deewan Singh to
6
Mics. Petition No.5053/2018

the petitioner, it was not proper for the Railways to have declined

the consideration for appointment on compassionate ground on the

basis of godnama (adoption deed).

14. Part X of the Indian Succession Act, 1925 deals with

Succession Certificate. Sub-section (1) of Section 370 stipulates

that “A succession certificate shall not be granted under this Part

with respect to any debt or security to which a right is required by

Sectionsection 212 or Sectionsection 213 to be established by letters of

administration or probate. Furthermore, Sub-section defines

“Security to mean “(a) any promissory note, debenture, stock or

other security of the Central Government or of a State Government;

(b) any bond, debenture, or annuity charged by Act of Parliament

[of the United Kingdom] on the revenues of India; (c) any stock or

debenture of, or share in, a company or other incorporated

institution; (d) any debenture or other security for money issued by,

or on behalf of, a local authority; (e) any other security which the

[State Government] may, by notification in the Official Gazette,

declare to be. Section 381 of the Act of 1925 stipulates that subject

to the provisions of Part X, the certificate of the District Judge

shall, with respect to the debts and securities specified therein, be

conclusive as against the persons owing such debts or liable on

such securities, and shall, notwithstanding any contravention of
7
Mics. Petition No.5053/2018

Sectionsection 370, or other defect, afford full indemnity to all such

persons as regards all payments made, or dealings had, in good

faith in respect of such debts or securities to or with the person to

whom the certificate was granted. Since appointment on

compassionate ground in not a debt or security which the Railway

is under an obligation to discharge, the reference to the succession

certificate, is of no assistance to the petitioner.

15. In view whereof, we don’t perceive any illegality on the part

of respondent-Railways in declining to consider the claim of the

petitioner for grant of compassionate appointment and its

appreciation by the Tribunal.

16. Having thus considered, we don’t perceive any illegality in

the order under challenge, as would warrant any indulgence.

17. In the result, the petition fails and is dismissed. No costs.

(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pwn*
Digitally signed by
PAWAN KUMAR
Date: 2019.07.30
18:40:12 +05’30’

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