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Gurdeep Singh & Anr vs State Of Punjab And Ors on 28 March, 2017

CWP No. 8364 of 2016 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CWP No. 8364 of 2016 (OM)
Date of decision: 28.3.2017

Gurdeep Singh and another
…Petitioners
Versus
State of Punjab and others
…Respondents

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Hitesh Verma, Advocate,
for the petitioners.

Mr. Pankaj Mulwani, DAG, Punjab,
for respondent No.1.

Mr. Guninder Singh Brar, Advocate,
for respondents No. 2 and 3.

JAISHREE THAKUR, J.

1. The petitioners herein are aggrieved against the denial of

compassionate appointment to be offered to them on account of death of

Sh. Lal Singh.

2. In brief, the facts are that Sh. Lal Singh, husband of petitioner

No. 2, was working as Auction Recorder at Market Committee, Bhagta Bhai

Ka. Since they were childless they adopted petitioner No. 1, who was born

on 27. 6.1993, in the year 1993 itself. The government servant, Sh. Lal

Singh expired on 16.12.2008 and thereafter petitioner No. 2 approached the

respondents seeking appointment to be offered to petitioner No. 1 on

compassionate grounds on his attaining majority. She was informed that she

would require to have the adoption registered, as a result she got an adoption

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CWP No. 8364 of 2016 2

deed registered on 25.03.2009. Petitioner No. 2 again approached the

respondents for appointment of petitioner on compassionate grounds in

place of her late husband and on this application a resolution dated

25.05.2009 was passed by the Market Committee in which it was resolved to

send the case of petitioner No 1 for compassionate appointment to

respondent No. 2, the Mandi Board. Petitioner No. 1 approached the

Department on 9.7.2015 for appointment on the post of Clerk as one post

had been kept vacant for him by resolution dated 25.05.2009. However, as

appointment was not offered to him, petitioner No. 2 again submitted an

application dated 23.12.2015 praying for appointment as Peon to be given to

her on compassionate grounds. The matter was considered in the meeting

held on 04.01.2016 in which it was noted that an application had been

preferred by the widow of the deceased government employee for reserving

a post for her son and in resolution No. 14 dated 25.05.2009 the Market

Committee had reserved one post of Clerk for Sh. Gurpreet Singh son of late

Sh. Lal Singh, the deceased government employee, but the said post could

not be offered to him as he was not the legal heir of Sh. Lal Singh. It was

also noted that the Deputy Commissioner had issued a dependent certificate

dated 17.08.2010 only in the name of Smt. Baljeet Kaur widow of late Sh.

Lal Singh. In the said resolution also, it was decided that appointment could

not be offered to Smt. Baljeet Kaur as she had not preferred an application

seeking appointment on compassionate ground for herself within specified

time. It is in this background that the instant writ petition has been filed

seeking appointment on compassionate grounds.

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3. Mr. Hitesh Verma, learned counsel appearing on behalf of the

petitioners, submits that the ground of rejection of their application for

compassionate appointment is unjustified on account of the fact that

immediately after the death of late Sh. Lal Singh, an application had been

moved for reserving one post for petitioner No. 2, being the adopted son of

Lal Singh and if at that time it had been decided to reserve a post, there was

no occasion for them not to grant him appointment. It is further argued that

petitioner No. 1 is legally adopted son of petitioner No. 2 and there is a

registered adoption deed and, therefore, there is no occasion for the

respondents not to treat petitioner No. 1 as the adopted son of late Sh. Lal

Singh.

4. Per contra, Mr. Guninder Singh Brar, learned counsel appearing

on behalf of the Mandi Board, submits that the adoption cannot be treated to

be a valid adoption, as the adoption deed is registered after the death of the

government servant Sh. Lal Singh. It is also argued that the Deputy

Commissioner had issued a dependent certificate in 2010 and that too only

in the name of Mrs. Baljeet Kaur, the widow of the deceased government

servant. It is argued that there is no mention of petitioner No. 1 being a

dependent of late Sh. Lal Singh.

5. I have heard both the counsels for the parties and with their

assistance have gone through the record of the case.

6. There is no dispute to the fact that Sh. Lal Singh had worked in

the office of the Market Committee as an Auction Recorder who expired on

16.12.2008. It is also an admitted fact that petitioner No. 2 widow of the

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deceased government employee preferred an application seeking reservation

of a post for her adopted son. These facts were noted in the resolution

proceedings No. 14 dated 25.05.2009, wherein the Committee itself

recommended that one post be kept vacant. There was a specific noting in

resolution that Sh. Lal Singh the deceased government employee and Smt.

Baljeet Kaur had no issue of their own and a reservation was sought for

adopted son. The argument raised that the adopted son cannot be given

appointment as the adoption deed is registered after the death of the

deceased government servant is not sustainable, in view of the law as settled

in the case of Sawan Ram versus Mst. Kalawati and others reported in

AIR 1967 Supreme Court page 1761 wherein it has been held that an

adopted child will be deemed to be the child of his or her adoptive father or

mother for all intents and purposes from the date of adoption and from such

dates all ties will be severed with his birth family and shall be replaced by

those created by the adoption in the adopted family. While interpreting

section 5 (i) of the Hindu Adoption And Maintenance Act 1955, which lays

down “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.” It was held that the section provided for two kinds of

adoption, “adoption by a Hindu” or “to a Hindu”. It was concluded that

adoption to a Hindu was intended to cover cases wherein an adoption is by

one person, but the child adopted becomes the adopted son of another

person also. An instance was taken when a female Hindu who is married or

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CWP No. 8364 of 2016 5

whose husband is dead or has completely and finally renounced the world or

has been declared by a court of competent jurisdiction to be of unsound

mind, the actual adoption would be by the female Hindu, while the adoption

will be not only to herself but also to her husband who is dead or has

completely and finally renounce the world or has been declared to be of

unsound mind. It was finally concluded in the judgment referred to above,

that a child adopted by a widow will be deemed to be the adopted son of her

deceased husband. Therefore, once it has been authoritatively held that

adoption by a widow will not be deemed to be adoption only to her, but

will relate back to her husband, who is deceased, petitioner No. 1 for all

intents and purposes will have to be treated as the adopted son of the

deceased government servant and his legal heir.

7. Another argument raised that dependent certificate issued by

the office of the Deputy Commissioner does not reflect the name of

petitioner No. 1 and thus he cannot be treated to be a dependent is wholly

fallacious. The meeting of the Market Committee noted the contents of the

application moved by the widow of the deceased government servant which

clearly mentioned that they had adopted son. The Market Committee in its

resolution had approved of keeping one post vacant for the adopted son. Just

because the dependent certificate has been issued in the name of the widow

that would not take away the right of the petitioner No. 1 for consideration

for appointment, if all other eligibility criteria is met.

8. Therefore, in view of the discussion held above the present writ

petition is allowed and the respondents are hereby directed to consider the

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case of petitioner No. 1 for the purpose of compassionate appointment, as

per his entitlement, as expeditiously as possible, preferably within a period

of two months from the date of receipt of certified copy of this order.

28.3.2017 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable No

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