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Motilal Jingar vs State Of Rajasthan And Ors on 10 July, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2040/2018

Motilal Jingar S/o Shri Gajendra Pal Arya, Adopted Son Of Smt.
Laxmi Kumari, aged about 20 years, R/o Outside Sarneshwar
Gate, Nayawas-2, Sirohi (Raj.).

—-Petitioner
Versus

1. State Of Rajasthan, Through Secretary , Public Health
And Engineering Department, Government Of Rajasthan,
Jaipur Raj..

2. Chief Engineer, Public Health And Engineering
Department, Government Of Rajasthan, Jaipur Raj..

3. Superintendent Engineer, Public Health And Engineering
Department, Circle Sirohi, District- Sirohi Raj..

4. Assistant Engineer, Public Health And Engineering
Department, Sub- Division- Sirohi, District- Sirohi Raj..

—-Respondents

For Petitioner(s) : Mr.P.S.Chundawat
For Respondent(s) : Mr.N.K.Mehta, Dy. Govt.Counsel

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

10/07/2018

1. This writ petition under Article 226 of the Constitution

of India has been preferred claiming the following reliefs:

“a) that the respondents be directed to consider the
case of the petitioner for compassionate appointment
by treating his as legally adopted son of Late
Smt.Laxmi Jingar and further, be provided
compassionate appointment suitable to his
qualifications.

b) Any other appropriate writ, order or direction to
which the petitioner may be entitled to in the facts
and circumstances of the case may kindly be passed
in favour of the petitioner.

(2 of 6) [CW-2040/2018]

c) Cost of this writ petition may kindly be awarded to
the petitioner.”

2. Brief facts of this case, as noticed by this Court, are

that the petitioner was adopted by Late Smt.Laxmi Jingar on

06.05.2015, and the adoption deed was registered on 25.05.2015

before the Sub Registrar, Sirohi. Smt.Laxmi Jingar, while

discharging her duties as Upper Division Clerk with the

respondent-Department, expired on 31.01.2016. The petitioner

applied for compassionate appointment, being legally adopted son

of deceased Smt.Laxmi Jingar, by way of submitting application

dated 24.02.2016, alongwith the complete required documents.

The Superintending Engineer, PHED, Sirohi forwarded the matter

to the Chief Engineer vide letter dated 25.04.2016.

3. The aforementioned application of the petitioner

seeking compassionate appointment has been rejected by the

Chief Engineer vide letter dated 01.05.2017, on account of the

matter having been sent to the Personnel Department and

information having been received therefrom to the effect that as

per Section 10(iv) of the Hindu Adoptions and Maintenance Act,

1956 (in short, ‘the Act of 1956’), only a person, who has not

completed fifteen years of age, can be taken in adoption, while the

petitioner’s age at the time of adoption was seventeen years, and

Late Smt.Laxmi Jingar had also not informed the Department

regarding the said adoption of the petitioner, as required by the

circular dated 26.08.2006.

4. The aforesaid order of the Chief Engineer rejecting the

application of the petitioner for compassionate appointment was

communicated to him by the Assistant Engineer vide its letter

dated 23.05.2017.

(3 of 6) [CW-2040/2018]

5. Learned counsel for the respondents states that on a

bare perusal of the aforementioned adoption deed, the age of the

petitioner was found to be seventeen years, on the date of its

registration, and as per the Act of 1956, only a person less than

fifteen years of age can be taken in adoption.

6. Learned counsel for the respondents further submitted

that the petitioner has failed to give any reason as to why the said

adoption had not happened before his attaining the age of fifteen

years.

7. Learned counsel for the respondents, while referring to

Section 10(iv) of the Act of 1956, has submitted that as per the

said provision, only a child less than fifteen years of age, can be

taken in adoption.

8. For ready reference, Section 10(iv) of the Act of 1956 is

quoted hereinbelow:

“10. Persons who may be adopted.–No person
shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely:–

(i) . . . . …. ….
(ii) . . . …. …..
(iii) . . . . . . . . . ….

(iv) he or she has not completed the age of fifteen
years, unless there is a custom or usage applicable to
the parties which permits persons who have
completed the age of fifteen years being taken in
adoption.”

9. In refutation to the aforesaid submissions made on

behalf of the respondents, learned counsel for the petitioner has

submitted that the petitioner was customarily taken as a legally
(4 of 6) [CW-2040/2018]

adopted son of Late Smt.Laxmi Jingar, but the registration of

such adoption had happened only on 25.05.2015.

10. Learned counsel for the petitioner further submitted

that Section 10(iv) of the Act of 1956, as quoted above, would

not be a bar, if the respective custom permits customary

adoption, and thus, denial of the compassionate appointment to

the petitioner on the strength of the said provision of the Act of

1956, is not permissible in the eye of law.

11. Learned counsel for the petitioner, in regard to the

customary adoption, has referred to para 1 of the adoption deed

dated 25.05.2015. The said para 1 of the adoption deed reads as

under:-

“1- ;g fd izFke i{kdkj y{eh dqekjh us vius oa’k dks vkxs
pykus ds fy, viuk uke vkckn j[kus ds fy, r`rh; i{k tks
fd f}rh; i{dkj dk izkd`frd iq gS tks vius tkfr fjrh
fjokt vuqlkj o vius dqVqEc i{k dks bdVBk dj xksn fy;k
gS rFkk xksn dh j’e esa izFke i{kdkj us r`rh; i{k dks vius
xksn esa fcBkdj dqVqEc o ifjokj lekt okyksa esa xqM+ o feBkbZ
vkfn ckaVdj leLr tkr fcjknjh ds le{k r`rh; i{k
eksrhyky dks xksn fy;k gS] rFkk f}rh; i{kdkj us vius iq
eksrhyky dks jkth [kq’kh ls izFke i{kdkj dks xksn fn;k gSA ”

12. Learned counsel for the petitioner, thus submitted that

the customary adoption was in existence in the respective

custom of the concerned parties, which is evident from the

aforequoted para 1 of the adoption deed.

13. Learned counsel for the petitioner has referred to Rule

2(c) of the Rajasthan Compassionate Appointment of

Dependants of Deceased Government Servants Rules, 1996 (in
(5 of 6) [CW-2040/2018]

short, ‘the Rules of 1996’) and submitted that the adopted son

comes within the definition of the term ‘Dependent’, as contained

in the said Rule 2(c), and thus, the petitioner, being the legally

adopted son of Late Smt.Laxmi Jingar, cannot be deprived of the

benefit of compassionate appointment.

14. Rule 2(c) of the Rules of 1996 reads as under:-

“2. Definitions.- In these rules unless the context
otherwise requires:-

(a) . . . ….

(b) . . . …..

(c) “Dependent” means a spouse, son, unmarried or
widowed daughter, [adopted son/adopted unmarried
daughter] legally adopted by the deceased
Government servant during his/her life-time and who
were wholly dependent on the deceased Government
servant at the time of his/her death.”

15. Learned counsel for the petitioner further harped

upon the fact of the petitioner being the undisputed legally

adopted son of Late Smt.Laxmi Jingar, as she had not married

and had validly taken the petitioner in adoption.

16. After hearing learned counsel for the parties as well

as perusing the record of the case, this Court finds that Section

10(iv) of the Act of 1956 would not bar the adoption, as has

been made in the present case, completely, as the said provision

itself contained a proviso in relation thereto, which is reflected

from the aforequoted portion of the said provision, and thus, the

customary adoption is also permissible under the law, even after
(6 of 6) [CW-2040/2018]

the person taken in adoption has completed the age of fifteen

years, if the respective custom so permits.

17. This Court further finds that Section 10(iv) of the Act

of 1956 is not a bar or an absolute law of adoption, and once the

adoption deed has been registered on 25.05.2015, which was

well before the death of Smt.Laxmi Jingar, the mother of the

petitioner, who expired on 31.01.2016, then it was not open for

the respondents to have denied compassionate appointment to

the petitioner.

18. The petitioner has moved the application seeking
compassionate appointment in accordance with law, as he falls
within the definition of the term ‘Dependent’ as contained in Rule
2(c) of the Rules of 1996, as quoted above, and hence, merely
because the official records in relation to Late Smt.Laxmi Jingar
do not carry mention of the adoption of the petitioner by her, the
same cannot be a ground for denial of a validly registered
document i.e. the registered adoption deed, and thus, the
petitioner ought to be granted compassionate appointment being
legally adopted son of Late Smt.Laxmi Jingar.

19. In light of the aforesaid observations, the present writ
petition is allowed, and the respondents are directed to provide
compassionate appointment to the petitioner on any suitable
post as per his educational qualifications, while treating him to
be the legally adopted son of Late Smt.Laxmi Jingar, within a
period of 90 days from today, strictly in accordance with law.

(DR. PUSHPENDRA SINGH BHATI),J

Skant/-

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