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O.A. No.330/00225/2012
Reserved
Central Administrative Tribunal, Allahabad Bench,
Allahabad
O.A. No.330/00225/2012
This the 3rd day of June, 2021.
Hon’ble Mrs. Justice Vijay Lakshmi, Member (J)
Rani Devi d/o late Narayan, residing at Village Paricha near Police
Chauki, behind Punjab National Bank, District- Jhansi (U.P.).
Applicant
By Advocate: Sri S.K. Mishra
Versus
1. Union of India through the General Manager, North Central
Railway, Zonal Head Quarters , Subedarganj, Allahabad, U.P.
2. The Senior Divisional Personal Officer, North Central
Railway, Jhansi (U.P.)
Respondents
By Advocate: Sri N.C. Srivastava
ORDER
By Hon’ble Mrs. Justice Vijay Lakshmi, Member (J)
By means of the present O.A., the applicant has challenged
the legality and correctness of the impugned order dated 27.4.2011
(Annexure No. A-1 to the O.A.), whereby the claim of the applicant
Rani Devi for compassionate appointment, has been rejected by
the respondents. The applicant has sought the relief to quash the
aforesaid impugned order and to direct the respondents to offer
compassionate appointment to her in Railways.
3. I have heard learned counsel for both the parties at length
and have perused the record.
4. The relevant facts necessary for a proper adjudication of the
controversy involved in the instant O.A., are that one class IV
employee, Late Sri Narayan, who was employed in the North
Central Railway, Jhansi Division, as a Gateman, died in harness on
28.1.1998, leaving behind his widow named Smt. Gulab Rani.
5. Smt. Gulab Rani, widow of late Narayan, filed the instant
O.A., seeking compassionate appointment as applicant No. 1.
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O.A. No.330/00225/2012
However, during pendency of the O.A., Gulab Rani expired. After
her death, the present applicant Rani Devi was substituted as
applicant No. 1 in this O.A.
6. As per the facts mentioned in the O.A., late Sri Narayan had
left behind him, his widow Smt. Gulab Rani (applicant No.1) and
their adopted daughter, Rani (applicant No. 2). Rani, was taken in
adoption by late Sri Narayan and his wife Gulab Rani on 6th
January, 1994, from her biological parents Sri Ramdas and Prem
Kunwar. An adoption deed was prepared on the same date in the
presence of witnesses and necessary formalities were completed.
Rani Devi was five years old at the time of her adoption. (A copy of
the adoption deed has been annexed as Annexure No. A-2 to the
O.A.). After the death of Sri Narayan, his widow Smt. Gulab Rani
had applied for appointment on compassionate ground in Railway
on 27.5.98, but her claim was rejected. Thereafter, vide application
dated 2nd June, 2006 (Annexure No. A-7 to the O.A.), she
requested that her adopted daughter Rani be given appointment in
Railway on compassionate ground. The request made by Gulab
Rani for compassionate appointment of her adopted daughter, Rani
was also rejected by the respondent department vide order dated
16.3.2007 (Annexure No. A-8 to the O.A.), on the ground that
adoption was not valid because Rani was taken in adoption after
the death of late Sri Narayan, and the adoption deed being not
registered. Being aggrieved, the applicant, Gulab Rani made a
representation on 11.7.2007, requesting the respondents to
reconsider their decision, but when nothing was done, she filed
O.A. No. 147/2008 before this Tribunal, which was decided vide
order dated 7.1.2011, whereby the respondent/ competent authority
was directed to pass a fresh order within a period of 3 months on
the claim/representation of the applicant.
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O.A. No.330/00225/2012
7. In compliance of the aforesaid order of this Tribunal, passed
in earlier O.A. filed by Gulab Rani, the respondents passed the
impugned order dated 27.4.2011, which is under challenge in the
instant O.A.
8. The respondents have filed Counter reply, and have
opposed the claim of the applicant by contending that late Sri
Narayan, who was working as a Gateman and who died on
28.1.1998, had left behind only his widow Smt. Gulab Rani. After
the death of her husband, his widow Smt. Gulab Rani submitted the
claim for payment of settlement dues in her favour in prescribed
form, in which she declared herself as the sole legal heir of late Sri
Narayan. No adopted daughter’s presence was declared by Smt.
Gulab Rani, as another dependent of her deceased husband in the
settlement form. Had Km. Rani (the applicant) been adopted by the
deceased employee during his life time, Smt. Gulab Rani would
have declared Km. Rani as their adopted daughter in the settlement
form. But as she has not done so, the applicant cannot be treated
as adopted daughter of deceased Sri Narayan.
9. It is further contended that Smt. Gulab Rani had applied for
compassionate appointment for herself vide application dated
27.5.1998, stating clearly that she may be given appointment in
place of her husband as there is no one in the family except her.
On receipt of application of Smt. Gulab Rani, a Welfare Inspector
was deputed for investigation in the matter, who submitted his
report on 5.4.1999, to the effect that the widow is alone and she
has no children. The photo copy of the report of Welfare Inspector
has been filed as Annexure No. CA-2 and CA-3 to the Counter
Reply. It is further contended that the respondent/ competent
authority, after going through the report of the Welfare Inspector,
did not find the case of Gulab Rani fit for considering
compassionate appointment in view of the fact that Rs. 1,27,929/-
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O.A. No.330/00225/2012
had already been paid to Gulab Rani as settlement dues, she was
also getting Rs.1685/- per month as family pension and there was
no other family liability on her. Therefore, the claim for
compassionate appointment of Galab Rani was rejected.
10. Smt. Gulab Rani once again applied for compassionate
appointment on 6.8.2005. Her case was considered and she was
called for screening on 30.1.2006, vide letter dated 9.1.2006.
However, she remained absent. She was once again called for
screening on 27.2.2006, But she remained absent. Ultimately she
appeared on 30.3.2006 for screening and she was sent for medical
examination, in which she was declared medically unfit for all
categories. A copy of medical certificate dated 11.5.2006 has been
filed as Annexure No. CA-4 to the counter reply.
11. Learned counsel for respondents has vehemently contended
that it was only when Smt. Gulab Rani was declared medically unfit
in all categories, she requested for compassionate appointment to
Km. Rani, (the present applicant) claiming her as their adopted
daughter, by annexing an adoption deed dated 6.1.1994 executed
on a five rupee stamp paper. It is contended that the aforesaid
adoption deed being an unregistered document and being
registered at a later date on 12.7.2006 i.e. after the death of the
employee, is not admissible in evidence and cannot be relied upon.
It is further contended that as per the mandatory provision
contained in Section 16 of Hindu Adoption and Maintenance Act
and Section 17(3) of Registration Act, the Registration of adoption
deed is a must to make it a valid adoption. Therefore, the
unregistered adoption deed of Km. Rani being not a valid adoption
deed, the applicant Km. Rani was rightly denied compassionate
appointment by the respondents and there is no need to interfere in
the impugned order.
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O.A. No.330/00225/2012
12. Learned counsel for respondents has drawn my attention to
the High School certificate of Km.Rani to show that Km. Rani has
passed High School in the year 2006. In this certificate, the name of
her father and mother is recorded as Sri Ramdas and Smt.
Premkunwar, who are her biological/natural parents. My attention
has also been drawn to the caste certificate issued in favour of Km.
Rani on 1.3.2011, in which her father’s and mother’s name have
been mentioned as Sri Ramdas and Smt. Premkunwar. The
contention of the learned counsel for respondents is that both these
documents are most cogent and trustworthy evidence of parentage
of a person, which clearly show that Rani Devi was never adopted
by the deceased employee in his life time. The photo copies of High
School certificate 2006 and caste certificate of 2011 of Km. Rani
Devi have been collectively annexed as Annexure No. CA-6 to the
counter reply.
13. It is also contended that the deceased Sri Narayan had
never declared Km. Rani as his adopted daughter in his life time, in
his service records. Moreover, he has never taken privilege pass
and P.T.O. in favour of Rani Devi.. Had Km. Rani, been the
adopted daughter of deceased employee, he would have certainly
availed the privilege pass and P.T.O. for her.
14. Learned counsel for respondents has further contended that
as per rules, the compassionate appointment is permissible to the
dependent wards of a deceased employee, whereas all the facts
mentioned above fully establish that Km. Rani was never a
dependent of the deceased employee late Sri Narayan.
15. On the aforesaid grounds, it has been prayed that the claim
of Rani Devi for appointment on compassionate ground which was
rightly rejected by the respondent by a well reasoned and speaking
order dated 27.4.2011, does not requires any interference by this
Tribunal .
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O.A. No.330/00225/2012
16. The applicant has filed Rejoinder Reply, in which she has
reiterated the facts as mentioned in the O.A. However, there is no
rebuttal of the High School certificate, caste certificate and other
documents filed by the respondents showing the names of her
biological parents. In reply to all the contentions raised by the
respondents, the applicant has only stated in his Rejoinder reply
that the impugned order is against the letter and spirit of judgment
passed by this Tribunal in earlier O.A. 147/2008.
17. I have given thoughtful consideration to rival contentions
advanced by ld. Counsel for the parties. Having heard learned
counsel for the parties and having perused the record, I do not find
any merit or substance in the present O.A. and it is liable to be
dismissed. The reasons are as follows:-
(a). The applicant has admitted the fact that although she was
taken in adoption by the deceased employee Sri Narayan on
6.1.1994, during his life time and a deed of adoption was executed
on the same day, however, it got registered at a later date i.e. on
12.7.2006. The copy of the adoption deed dated 6.1.1994 is
annexed as Annexure No.A-2 to the O.A. which clearly shows that
it is an unregistered document executed on a Rs. 5 stamp paper,
which does not fulfill the mandatory requirement for a valid
adoption.
(b). Section 17 (3) of the Registration Act requires that a deed of
adoption be compulsorily registered. Section 16(2) of Hindu
Adoption and Maintenance Act, 1966 also mandates that all
adoptions are to be registered. Section 16(2) of Hindu Adoption and
Maintenance Act, 1966 is reproduced below for a ready reference:-
“(2) In case of an adoption made on or after the 1st day
of January, 1977 no court in Uttar Pradesh shall accept
any evidence in proof of the giving and taking of the
child in adoption, except a document recording an
Page 6 of 10
O.A. No.330/00225/2012adoption, made and signed by the person giving and the
person taking the child in adoption, and registered
under any law for the time being in force:
Provided that secondary evidence of such document
shall be admissible in the circumstances and the
manner laid down in the Indian Evidence Act, 1872.”.
It is undisputed fact that adoption deed was registered in the
year 2006 i.e. after the death of employee, Even assuming for the
sake of arguments that any adoption deed was executed on 6.1.94,
as claimed by the applicant, this Tribunal cannot hold it as a valid
adoption in view of the bar of 8.16 (2) of Hindu Adoption and
(c ) Hon’ble Allahabad High Court in the case of Sumit Kumar
Vs. State of U.P. and 2 others Writ A No. 11931 of 2016 decided
on 15.3.2016 under the similar circumstances, has held as under:-
“So long as the deceased employee was alive, no valid
adoption deed came into existence, on the basis of
which, petitioner could claim any right. Even otherwise,
a period of nearly 08 years have lapsed since the death
of deceased, and in view of the law settled, a claim for
grant of compassionate appointment after such
inordinate delay is not liable to be entertained. The Writ
Petition, consequently, lacks merit and is dismissed.”
(d). In another case of Raj Kumar Saxena Vs. Basic Shiksha
Parishad , U.P. and others Writ A – No. 66944 of 2006 decided
on 27.3.2019, the petitioner was adopted by unregistered adoption
deed dated 17.11.1980. He was given compassionate appointment
on 31.3.1995 on the basis of unregistered adoption deed and in
pursuance, the petitioner functioned as Assistant Teacher for over
a decade. However, a complaint was filed in the office of Basic
Shiksha Adhikari, alleging that petitioner was not a legally adopted
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O.A. No.330/00225/2012
son. Therefore, a show cause notice, supported by a fact finding
enquiry report was issued to the petitioner and the petitioner
submitted his explanation. The respondents, being not satisfied
with the explanation furnished by the petitioner, terminated his
services by the impugned order, on the ground that adoption deed
being an unregistered document, could not have been acted upon.
The order of termination was challenged before the Hon’ble High
Court on the ground that the i) services of the petitioner could not
have been terminated after rendering prolonged service of 14
years; ii) there was no fraud or misrepresentation on the part of the
petitioner; iii) adoption deed is a valid and legal deed. However,
Hon’ble High Court dismissed the writ petition, placing reliance of
several judgments and legal provisions, by observing as under:-
“22. On plain reading of Section 16(2)/and 49(c) of Act,
1956and Act, 1908, respectively, incorporated by State
amendment, it clearly mandates that any document
creating any right or relationship shall not be received in
evidence creating such right or relationship unless it
has been registered. Accordingly, the adoption deed is
unreceivable in evidence recording an adoption, further,
the adoption in view of Section 11(i) of Act, 1956 is
invalid. Petitioner, admittedly, being the son’s son of the
adoptive mother living at the time of adoption could not
have been taken in adoption.”
(e). It is also noteworthy that in the aforesaid case too, the name
of biological parent was recorded in the High School and
Intermediate certificate, despite the fact that the petitioner was
adopted long before appearing in High School and Intermediate
examination. Hon’ble Allahabad High Court in para 34,35 and 36 of
the aforesaid judgment held as under:-
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O.A. No.330/00225/2012child of his or her adoptive father or mother 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 the adoption in the
adoptive family. In other words, on adoption, adoptee
gets transplanted in adopting family with the same
rights as that of natural born son. (Refer: Basavarajappa
vs. Gurubasamma)
35. On specific query, as to how, the names of
biological parents came to be recorded in the high
school and intermediate certificates despite the
petitioner having been adopted at the age of 7 years.
Learned counsel for the petitioner placed reliance on the
decision rendered by the Single Judge of this Court in
Ravindra Kumar vs. State of U.P. and others, to contend
that the Board of High School and Intermediate
Examination records the names of the biological parents
instead of the adoptive parent in the high school/and
intermediate certificates, therefore, the names of the
biological parents and not the adoptive mother came to
be recorded in the certificates. The facts obtaining in
Ravindra Kumar (supra) is distinguishable. The deed of
adoption was a registered deed and a valid deed; the
petitioner, therein, had approached the Board for
correction of the certificate which was declined by the
Board in absence of rules permitting such correction.
This is not the case in the instant case. The deed of
adoption is invalid and unenforceable in law.
36. The plea on the face of it is untenable for the
reason that the petitioner as per his own case was
adopted at the age of 7 years and in view of the Section
12 of the Act, 1956, the adopted child for all purposes
shall be deemed to be the child of his adoptive parent.
However, the name of the adoptive mother does not find
recorded in either of the certificates (class 10 and 12).
Nor does such a reference finds in the Parivar Register
prepared under U.P. Panchayat Raj (Maintenance of
Family Register) Rule, 1970. It therefore, follows that
until taking the examination of class 12, the alleged
adoption deed had not seen the light of day. It was an
afterthought to get an unregistered adoption deed
executed for the purposes of obtaining compassionate
appointment. The State Amendments came to be
inserted in Act, 1956 and Act, 1908 to avoid such fraud
and misrepresentation on the basis of such document.”
(f). The well settled legal position with regard to compassionate
appointment is that a compassionate appointment is not a
hereditary right but rather it is to be granted on a consideration of
the financial distress and hardship being faced by the family of the
deceased employee and in order to grant succor and immediate
relief to the family of the deceased employee.
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O.A. No.330/00225/2012
18. The deceased late Sri Narayan died in the year 1998 and if
the family has been able to survive for 23 years after the death of
the bread winner of the family, the sense of immediacy to tide over
the financial crises no longer remain.
19. In view of all the facts and circumstances and in wake of law
laid down by the Hon’ble Apex Court and Hon’ble High Court, I find
no merit in the O.A. and the same is accordingly dismissed.
20. No order as to costs.
(Justice Vijay Lakshmi)
Member (J)
HLS/-
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