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Union Of India vs Aatish Mishra on 24 June, 2019

-1- M.P. No.2847/2018

HIGH COURT OF MADHYA PRADESH, JABALPUR

Writ Petition No. 2847 of 2018
1. Parties Name 1. Union of India, through its
Principal Secretary, Ministry of
Railway, Rail Bhawan, New
Delhi. PIN 110006
2. General Manager, West
Central Railway, Jabalpur Zone,
Jabalpur (M.P.)
3. Divisional Railway Manager,
West Central Railway, Bhopal
Division, Bhopal (M.P.) PIN
462001

-Versus-

Aatish Mishra, S/o Late Shri
Dwarika Prasad Smt. Uma
Devi Mishra (mother) aged about
31 years, R/o Sooraj Ganj Ward
No.16, Itarsi, District
Hoshangabad (M.P.) PIN 461111

Bench Constituted Hon’ble Shri Justice Sujoy
Paul and
Hon’ble Shri Justice B.K.
Shrivastava
Judgment passed by Hon’ble Shri Justice Sujoy Paul.
Whether approved for Yes/No
reporting
-2- M.P. No.2847/2018

Name of counsels for parties For petitioners :
Shri N.S.Ruprah, Advocate
For respondent :
Shri V.C. Rai, Advocate.
Law laid down
Significant paragraphs
numbers

ORDER

(24.06.2019)

Per: Sujoy Paul, J;-

This petition filed under SectionArticle 227 of the Constitution
assails the order of Central Administrative Tribunal
(Tribunal) passed in O.A. No.200/113/2017 decided on
22.03.2018 whereby the learned Tribunal set-aside the
order dated 13.04.2016 passed by the department whereby
claim of respondent was rejected for grant of
compassionate appointment. Accordingly, petitioners were
directed to consider the case of the respondent for
compassionate appointment by taking into account the
observations made in the order.

2. The stand of the petitioner/department is that one
Dwarika Prasad Mishra working with the department was
missing from 03.05.1995. The wife of said employee namely
Smt. Uma Devi Mishra filed a suit for declaration that the
said employee has died after completion of 7 years from the
date he went missing. The said civil suit was registered as
C.S.No.1-A/2005 and decided on 23.01.2005. The Civil

-3- M.P. No.2847/2018

Court declared the death of said employee as civil death as
per Section 108 of Evidence Act, 1872.

3. Shri Ruprah submits that the wife of said employee
Smt. Uma Devi Mishra filed O.A. No.874/2006 decided on
24.12.2007. In the said case, she prayed for issuance of
direction for disbursement of retiral dues as well as for
considering her case for compassionate appointment. The
Tribunal by said order disposed of the petition and directed
the applicant to submit a fresh representation projecting her
grievance within stipulated time. In turn, the wife by legal
notice dated 18.02.2008 filed as Annexure R/3 prayed for
disbursement of amount as well as grant of compassionate
appointment to her. Later on, by communication dated
10.03.2016 Smt. Uma Devi Mishra preferred application for
grant of compassionate appointment to the present
respondent by stating that he has been adopted and,
therefore, compassionate appointment may be granted to
the adopted son. This representation was rejected by order
dated 13.04.2016, which became subject matter of
challenge before the Tribunal. The Tribunal, as discussed
above had allowed the O.A.

4. Shri Ruprah, learned counsel for the department
assailed the order of Tribunal by contending that:-

(i) The story of ‘adoption’ is an after-thought on behalf of
Smt. Uma Devi Mishra and Shri Aatish Mishra, if Aatish
Mishra had been a dependent he would have joined as
applicant before the Tribunal in the previous round of
litigation i.e. O.A. No.874/2006.

(ii) The date of birth of respondent is 23.07.1984. The
mark-sheets of respondent of August 2002 and March 2006

-4- M.P. No.2847/2018

(page No.62 and 63) show that he mentioned the name of
his biological parents as Shri Ravi Shanker Pandey and Smt.
Ghyanwati Padey. Thus, Shri Ruprah, urged that clearly till
2006 the biological parents of respondent were the other
persons, which is clear from the plain reading of said mark-
sheet. By taking into consideration Section 10(iv) of Hindu
Adoption and SectionMaintenance Act, 1956, learned counsel for
the department submits that no adoption after compelting
the age of 15 years is permissible. The adoption deed is
prepared in order to obtain a relief, which was legally not
due to the respondent. The respondent claims benefit of
compassionate appointment after 21 years from the date
Dwarika Prasad Mishra went missing and on attaining the
age of 31 years.

5. Per contra, Shri Rai, learned counsel for the respondent
supported that impugned order of the Tribunal. He submits
that the validity of adoption deed cannot be gone into by
Tribunal. Tribunal has rightly accepted the deed (page
No.39) on its face value.

6. No other point is pressed by the learned counsel for the
parties.

7. We have heard the parties at length and perused the
record.

8. The order passed in O.A. No.874/2006 dated
24.12.2007 clearly shows that Smt. Uma Devi Mishra
approached the Tribunal with a claim of grant of
retiral/terminal dues and compassionate appointment for
herself. If adoption had taken place on 05.02.2000, Smt.
Uma Devi Mishra would have naturally included the present
the respondent as an applicant and would have naturally

-5- M.P. No.2847/2018

prayed for grant of compassionate appointment in favour of
adopted son. We find support in our view from the legal
notice sent by Smt. Uma Devi Mishra dated 18.02.2008 filed
as Annexure R/3 wherein she claimed compassionate
appointment for herself.

9. The very purpose of grant of compassionate
appointment is to provide immediate helping hand to a
family in distress. The employee went missing in 1995 and a
declaration was given by the Civil Court on 23.09.2005. The
application for grant of compassionate appointment was
preferred on 10.03.2016 i.e. after about 11 years from the
declaration given by the Civil Court. Thus, there was no
occasion for the Tribunal to consider the claim of
compassionate appointment filed by the respondent at the
age of 31 years.

10. The adoption deed filed before the Tribunal is not a
registered deed. The Tribunal although was not under an
obligation to set aside the adoption deed, it was open to the
Tribunal to examine whether on the strength of such an
adoption deed the action of the department in rejecting the
claim by order dated 13.04.2016 can be interfered with.

11. In the aforesaid factual backdrop, wherein it is clear
that adoption deed appears to be an after-thought because
in the mark-sheets issued by the Board the respondent’s
parents name is differently shown. The deed appears to be
an attempt to obtain compassionate appointment as an
after-thought in a calculated manner. The Tribunal has not
considered the impact of Section 10(iv) of Hindu Adoption
and SectionMaintenance Act, 1956, which makes such absorption
impermissible.

-6- M.P. No.2847/2018

12. Matter may be viewed from another angle. As per
communication dated 06.03.2008 by Smt. Uma Devi
(Annexure R/5) Dwarika Prasad was missing since 1995.
The adoption deed was allegedly registered in Registrar
Office on 05.02.2000. Interestingly, till this time, no
presumption could have been drawn that Dwarika Prasad
died because statutory period of 7 years was not over. Smt.
Uma Devi alone was not competent to take him in adoption.
For this reason also story narrated by respondent is not
trustworthy.

13. We are of the considered opinion that the petitioner
department has not committed any legal error in
disbelieving the adoption deed and rejecting the claim for
compassionate appointment. The respondent was claiming
a sympathy which was not due to him. The respondent
made a calculated attempt to secure appointment on
compassionate ground despite the fact that he was not able
to show that his adoption on 05.02.2000 was valid. For
these cumulative reasons the impugned order of the
Tribunal dated 22.03.2018 is set-aside. The petition is
allowed.

(Sujoy Paul) (B.K. Shrivastava)
Judge Judge

Vin**

Digitally signed by VINOD
SHARMA
Date: 2019.07.11 03:27:24 -07’00’

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