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Shiv Kumar vs State Of U.P. Thru’ Secry. And … on 21 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 40

Case :- SPECIAL APPEAL No. – 1545 of 2013

Appellant :- Shiv Kumar

Respondent :- State Of U.P. Thru’ Secry. And Another

Counsel for Appellant :- Rajeshwar Dayal,Vijay Bahadur Yadav

Counsel for Respondent :- C.S.C.

Hon’ble Amreshwar Pratap Sahi,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra,J.)

The present special appeal is directed against the judgement and order dated 11.9.2013, passed by the learned Single Judge, dismissing the writ petition filed by the petitioner-appellant.

We have heard Mr. Upendra Singh, Advocate, holding brief of Mr. Rajeshwar Dayal, learned counsel for the petitioner-appellant and the learned Standing Counsel representing the respondents.

From a perusal of the record, the facts of the present special appeal lie in a very narrow campus. Smt. Urmila is the daughter of Late Punni Lal. Punni Lal’s wife predeceased him. The daughter Urmila has been blessed with four sons namely, Shiv Kumar (petitioner-appellant), Ajay Kumar, Shiv Sagar and Ram Sagar as well as two daughters namely, Kmr. Manisha and Kmr. Mamta. It is the case of the petitioner-appellant that Punni Lal before his death adopted the petitioner-appellant which has been evidenced by means of a notary affidavit dated 28.5.2004. Punni Lal died on 14.6.2005. According to the petitioner-appellant, upon the death of Punni Lal the name of Urmila Devi the mother of the petitioner-appellant was mutated in the revenue records, pertaining to the holdings of the deceased Punni Lal, in the khatauni of 1412 to 1417 firstly. It is further alleged that the mother of the petitioner-appellant was also nominated for the payment of the G.P.F. amount of the deceased Punni Lal. Thereafter, the Administrator General U.P. granted the Letters of Administration dated 6.4.2009 in favour of the petitioner-appellant regarding the estate of the deceased Punni Lal.

On the basis of the aforesaid facts, the petitioner-appellant staked his claim for compassionate appointment as Punni Lal died during the course of employment and the petitioner-appellant was  eligible for such appointment on the grounds noted above.

However, as no decision was taken by the answering respondent in respect of the claim raised by the petitioner-appellant for grant of compassionate appointment, the petitioner-appellant filed C.M.W.P. No. 11555 of 2006 (Shiv Kumar Vs. State of U.P. and Others). The writ petition was disposed of finally vide order dated 23.4.2013. The learned Single Judge, while disposing of the writ petition, directed the competent authority to decide the petitioner’s application for the grant of compassionate appointment by a reasoned and speaking order within three months from the date of production of the certified copy of the order. Liberty was further granted to the petitioner-appellant to file such evidence before the competent authority which would establish his adoption by Punni Lal. 

Subsequent to the order dated 23.4.2013 referred to above, the petitioner-appellant filed a representation addressed to the District Agriculture Protection Officer, Allahabad. However, the representation so filed by the petitioner-appellant is not on the record of the writ petition or the special appeal filed before us.

The representation filed by the petitioner-appellant as stated above, came to be rejected by the respondent No. 2 the District Agriculture Protection Officer, Allahabad vide order dated 30.7.2013.

The respondent No. 2 the District Agriculture Protection Officer, Allahabad, while rejecting the claim of the petitioner-appellant for the grant of compassionate appointment has  firstly held that the Tehsildar Handia has given a family member certificate/succession certificate dated 27.7.2005 in favour of the petitioner-appellant which clearly establishes that the petitioner-appellant is the sole surviving family member of the deceased Punni Lal. However, an application dated 30.7.2005 was submitted by Smt. Urmila Devi, wife of Phool Chand and mother of the petitioner-appellant regarding the payment of the dues payable upon the death of Punni Lal alleging herself to be the sole legal heir of the deceased Punni Lal. In support of the aforesaid, a family member certificate/succession certificate dated 27.7.2005 issued by the Tehsildar, Handia was relied upon, wherein the petitioner-appellant has been shown to be the only surviving family member and therefore, the legal heir of the deceased Punni Lal.

After the entire dues payable upon the death of the deceased Punni Lal had been released, a notary affidavit dated 9.9.2005 was submitted by Smt. Urmila Devi mother of the petitioner-appellant before the respondent No. 2 the District Agriculture Protection Officer, Allahabad for the grant of compassionate appointment to the petitioner-appellant. An application dated 9.9.2005 was also submitted regarding the aforesaid which was accompanied by a notary affidavit dated 28.5.2004, wherein, the factum of adoption of the petitioner-appellant by Punni Lal was recorded. Further the Khatauni dated 15.11.2005, the succession certificate dated 27.7.2005 issued by the Tehsildar, Handia were also appended along with the representation in support of the claim for compassionate appointment.

Aggrieved by the order dated 30.7.2013, passed by the respondent No. 2 the District Agriculture Protection Officer, Allahabad, the petitioner-appellant filed C.M.W.P. No. 1545 of 2013 (Shiv Kumar Vs. State of U.P. and another). For convenience, the prayer clause of the aforesaid writ petition is extracted herein under:-

“1. To issue a writ order or direction in the nature of writ of certiorari quashing the order dated 30.7.20136 passed by the respondent No.l 2 (Annexure No. 7).

2. To issue writ order and direction in the nature of writ of mandamus commanding the respondent No. 2 to pass order of appointment in favour of the petitioner in place of deceased Punni Lal son of Mahadeo on compassionate ground under dying in harness rules.

3. To Pass such other proper and appropriate orders which this Hon’ble Court may deem fit and just in the nature and circumstances of the case.

4. To award costs of this petition in favour of the petitioner against the respondents.”

The aforesaid writ petition came to be dismissed by the learned Single Judge vide judgement and order dated 11.9.2013. Consequently, the petitioner-appellant has now come up in appeal. 

The learned Single Judge took the view that no registered adoption deed was executed at any point of time whereby, the petitioner-appellant can be said to be legally adopted by the adoptive father Punni Lal. It was further observed that the petitioner-appellant could  not establish before the authorities that his adoption by Punni Lal was a valid adoption. Lastly, the learned Single Judge held that succession certificate is not a substitute for a suit for declaration in a case where the petitioner is claiming a particular status.

Learned counsel for the petitioner-appellant in challenge to the aforesaid judgement and order dated 11.9.2013 strenuously urged before us that the petitioner-appellant is the adopted son of Puni Lal, the employee who died-in-harness. Consequently, the petitioner-appellant shall be included in the definition of family as defined in the the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974. It was further urged that since succession has been granted in favour of the petitioner-appellant upon the death of Punni Lal, the petitioner-appellant is clearly entitled to the benefit of compassionate appointment upon the death of Punni Lal in harness.

The learned Standing Counsel, representing the respondents, has vehemently opposed the special appeal. Attention of the Court was drawn to the findings recorded in the order dated 30.7.2013, passed by the respondent No.2 the District Agriculture Protection Officer, Allahabad. Learned Standing Counsel laid emphasis on the finding recorded in the impugned order that to obtain compassionate appointment, forgery has been committed in the records. The Letter of Administration dated 6.4.2009 relied upon by the petitioner-appellant for the proposition that since succession has been granted in favour of the petitioner-appellant, he is also entitled for compassionate appointment, was sought to be demolished by referring to the finding recorded in the impugned order in that regard. It was urged that the said letter of administration only entitled the petitioner-appellant to withdraw the sum of Rs. 859/- lying in the U.P. Gramin Bank Vikas Bhawan Branch, Allahabad. As such, the learned Standing Counsel urged that the aforesaid succession certificate does not establish the petitioner-appellant to be the legal heir of deceased Punni Lal, and therefore not entitled for the grant of compassionate appointment. Lastly, the learned Standing Counsel referred to the impugned order wherein a categorical finding has been recorded that the petitioner-appellant has failed to bring on record any such authenticated document which would establish that the petitioner-appellant is the adopted son of Punni Lal or he has been adopted by Punni Lal in accordance with the provisions of the Hindu Adoption and Maintenance Act, 1956, as applicable to the State of U.P. On the strength of the aforesaid submissions, the learned Standing Counsel urged that no illegality has been committed by the learned Single Judge in dismissing the writ petition filed by the petitioner-appellant. Consequently, the present special appeal is also liable to be dismissed.

We have considered the rival submissions raised at the bar. Upon examination of the records and the submission so made, we find that the only question involved in the present special appeal is whether the petitioner-appellant being the alleged adopted son of Punni Lal as required under the provisions of the Hindu Adoption and Maintenance Act, 1956, as applicable to the State of U.P. is entitled to claim compassionate appointment as a dependant under the 1974 Rules.

The adoption of a Hindu in the State of Uttar Pradesh is governed by the provisions of The Hindu Adoption and Maintenance Act, 1956, as applicable to the State of U.P. Section 16 of the aforesaid act deals with adoption which is extracted herein under:-

“Uttar Pradesh- Renumber section 16 as sub-section (1) thereof and after sub-section (1) as so renumbered, the following sub-section (2) shall be inserted, namely-

(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 adoption, made and signed by the person giving and the person taking 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.”

From a perusal of the aforesaid provision, it is explicitly clear that the adoption in the case of a Hindu living in the State of U.P. can be made only by a registered deed of adoption. The proviso to sub-section 2 of section 16 provides that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872. Therefore, even in order to attract the proviso to sub-section 2 of section 16 there has to be in existence a registered deed of adoption and in case, the original is not available, the factum of adoption can be proved by secondary evidence.

In the light of the aforesaid, we raised a pointed query to the counsel for the petitioner-appellant to show us the registered deed of adoption, if any, and appended along with the writ petition or the memo of appeal. In reply to the above, the learned counsel for the petitioner-appellant took us to the pleadings raised in the writ petition in support of the fact that the petitioner-appellant was duly adopted by Punni Lal during his life time. Reliance in this regard was placed upon paragraph 4 of the writ petition, which is as follows:-

” That the deceased Punni Lal son of Mahadeo died leaving behind him his daughter Smt. Urmila wife of Phulchand, son in Law Phulchand son of Raja Ramand grand sons Shiv Kumar and minor dependents Ajai Kumar, Shiv Sagar, Ram Sagar and grand daughter Km. Manisha and Km. Mamta and the deceased druing his life time also adopted the petitioner executing deed of adoption in favour of the petitioner as his legal heir and representatives.”

Thus, it is established that the deed of adoption alleged to have been executed by Punni Lal has not been appended along with the writ petition or the special appeal. What will be the effect on the failure to append the document evidencing a fact pleaded in the writ petition has been considered by the Apex Court in the case of Bharat Singh and Others Vs. State of Haryana and Others, reported in AIR 1988 SC 2181. Paragraph 13 of the aforesaid judgement clearly lays down the legal position in that regard, which is quoted herein below:-

“As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.”

Thus, the failure on the part of the petitioner-appellant to bring on record the document evidencing the averments made in paragraph 6 of the writ petition, do not call for any examination by this court. Therefore, this Court has no hesitation in holding that the adoption of the petitioner-appellant by Punni Lal during his life time through a registered deed of adoption as required under Section 16 sub-section 2 of The Hindu Adoption and Maintenance Act, 1956, as applicable to the State of U.P. has not been established before this Court. A learned Single Judge while dealing with the same issue in writ A No. 11931 of 2016 (Sumit Kumar Vs. State of U.P. and) held as follows :-

“From the perusal of records, brought before this Court, it is apparent that though an adoption is claimed by the petitioner in January, 1997, but no registered adoption deed was executed. The alleged acknowledgement executed in the year 2003 is also not registered. It is only after the death of deceased employee that a compromise decree is stated to have been passed. The employer admittedly was not a party to the suit, and as such, the compromise decree relied upon by the petitioner would not be binding upon it. 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.”

That apart the petitioner-appellant has taken a contradictory stand which remains unexplained. Before the respondent No. 2 the claim of compassionate appointment was made on the basis of a notary affidavit dated 28.5.2004, wherein the factum of adoption of the petitioner-appellant by Punni Lal was recorded whereas, in the writ petition as already noted above, it has been pleaded that the petitioner-appellant was adopted by executing a deed of adoption.

This being the position, the learned Single Judge has not committed any error much less a legal error in dismissing the writ petition filed by the petitioner-appellant.The appellant has failed to prove his entitlement of compassionate appointment by establishing that he is a dependant of the family of Punni Lal in terms of the 1974 Rules.

Consequently, the present special appeal fails and is, accordingly, dismissed. However, in the facts and circumstances of the case, we do not make any order as to costs.

Order Date :- 21.2.2018

Arshad

 

 

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