JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, Akhilesh Kumar Tripathi seeks the following reliefs:
(a) to issue a writ, order or direction in the nature of certiorari quashing the judgment dated 2.6.1995 rejecting the application No. 1587/92 Akhilesh Kumar Tripathi v. Union of India and Ors. and quashing the order dated 5.12.1995 passed in review application No. 83 of 1995 in Original application No. 1587 of 1992 Akhilesh Kumar Tripathi v. Union of India and Ors..
(b) to issue a writ, order or direction in the nature of certiorari quashing the orders dated 26.3.1992, 14.2.1992/14.7.1992.
(c) to issue writ, order or direction in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to consider the case of the petitioner on compassionate ground treating him legal heir of Sri Sajjan Lal Tripathi.
(d) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(e) to award costs in favour of the petitioner.
2. Briefly stated, the facts giving rise to the present petition are as follows:
According to the petitioner, he was legally adopted as a son by Sri Sajjan Lal Tripathi on 18th September, 1981. Sri Sajjan Lal Tripathi was working as a Telegraph man in the office of the Superintendent Incharge, Central Telegraph Office, Kanpur- respondent No. 3. He was a bachelor and when he reached the age of 53 years he realised the necessity of a hand for assisting him in old age and adopted the petitioner as his son. The petitioner's natural father Sri Hirdai Narain and natural mother Smt. Premwati had also signed the adoption deed. The deed of adoption was duly registered. Sri Sajjan Lal Tripathi died on 20th June, 1984 while in service. At that time the petitioner was 11 years old. It is alleged by the petitioner that after his adoption the name of his father was always mentioned as Sri Sajjan Lal Tripathi as would be clear from the High School Certificate. After the death of Sri Sajjan Lal Tripathi he continued to live under the guardianship of Smt. Premwati who had given him shelter. She was appointed as his guardian by the VII Additional District & Sessions Judge, Kanpur vide order dated 23rd March, 1985. On 30th October, 1985 Smt. Premwati, the petitioner's guardian made a representation to the Superintendent Incharge, Central Telegraph Office, Kanpur- respondent No. 3 seeking employment of the petitioner on compassionate ground after attaining the age of 18 years. The respondent No. 3 vide letter dated 3rd February, 1986 had informed Smt. Premwati that under the rules no assurance of employment in future can be given to the petitioner who was minor at that time. Smt. Premwati vide application dated 20th May, 1986 requested respondent No. 2 to forward the application to the competent authority. The Additional Director, Telecommunication vide letter dated 10th July, 1986 asked the respondent No. 3 to send certain documents. Requisite documents were submitted vide application dated 13th April, 1988. Respondent No. 3 once again vide letter dated 27th October, 1988 informed that the case of the petitioner for giving employment on compassionate ground cannot be considered at this stage because he is a minor, i.e. below 18 years of age. However, his case would be considered after he becomes major. After the petitioner attained the age of 18 years and became major, Smt. Premwati submitted a representation on 13th January, 1991 seeking employment to the petitioner on compassionate ground. Respondent No. 3 vide letter dated 26th March, 1992 intimated the petitioner that his case for giving employment on compassionate ground was not found proper and as such the application has been rejected. The Chief General Manager, Telecommunication, U.P. Circle, Lucknow- respondent No. 2 vide letter dated 14th July, 1992 also reiterated the same view. Thereafter, the petitioner approached the Central Administrative Tribunal by filing Original Application No. 1587 of 1992 challenging the order dated 26th March, 1992 passed by respondent No. 3 and the order dated 14th July, 1992 passed by respondent No. 2. After exchange of pleadings the Central Administrative Tribunal vide order dated 2nd June, 1995 have rejected the petitioner's application. The Tribunal has rejected the application on the ground that except the averments made in the application there is no other evidence (documents) to support the claim of the petitioner that he was adopted by late Sajjan Lal Tripathi as son on 18th September, 1981 and the Succession Certificate, which forms the basis for releasing the dues of late Sajjan Lal Tripathi in favour of Smt, Premwati, legal guardian of the petitioner cannot be treated a conclusive evidence of adoption of the petitioner by late Sajjan Lal Tripathi. There is no registered adoption deed on record and the petitioner has failed to prove the adoption. So far as the entries made in the High School Certificate showing Sri Sajjan Lal Tripathi as father of the petitioner is concerned, the Tribunal has stated that the entries in the High School Certificate are based on information given by the petitioner and hence cannot take place of evidence to prove adoption and even it is held that the he is adopted son of late Sajjan Lal Tripathi, this by itself does not confer a right on the petitioner for compassionate appointment. The Tribunal has further held that late Sajjan Lal Tripathi died leaving behalf the petitioner as his dependant. Admittedly, the entire dues i.e. provident fund, gratuity, leave encashment etc. have been paid to the petitioner through his legal guardian. He is also drawing family pension which is sufficient to sustain the petitioner and in that view of the matter he cannot be said to be in penurious conditions which may entitle him to compassionate employment. Thereafter the petitioner filed an application seeking review of the order which has also been rejected by the Tribunal vide order dated 5th December, 1995. The two orders passed by the Tribunal are under challenge in the present petition.
3. We have heard Sri Ashok Khare, learned senior counsel appearing on behalf of the petitioner and Sri S.C. Misra, learned standing counsel appearing for the respondents.
4. Sri Ashok Khare submitted that the petitioner has been adopted by Sri Sajjan Lal Tripathi on 18th September, 1981 which is evident by a deed in writing which has been duly registered. The natural father and mother of the petitioner namely, Sri Hirdai Narain and Smt. Premwati had signed the said deed. Thus all the ingredients of adoption as required under the Hindu Adoption and Maintenance Act, 1956 have been fulfilled in the present case and the petitioner cannot be denied the rights which have accrued in his favour on account of the death of his father Sri Sajjan Lal Tripathi as after the adoption Sri Sajjan Lal Tripathi would be treated as his father for all purposes under law. He further submitted that the authority had rejected the application for grant of compassionate appointment without assigning any reason and it would not open to the Tribunal to assume reasons for justifying the orders passed by the authorities. He further submitted that the adoption deed was well before the Tribunal. The Tribunal had illegally declined to accept the factum of adoption. Moreover the pecuniary benefits which have been paid over to the petitioner through his legal guardian including the family pension on account of death of his father Sri Sajjan Lal Tripathi would not disentitle him from claiming appointment on compassionate ground, inasmuch as there was nobody to look after him. The legal guardian appointed by the court of law, namely, Smt. Premwati was looking after him out of the family pension and other funds made available but his future was bleak. He was, therefore, entitled for being given an appointment on compassionate ground.
5. Sri S.C. Misra, learned standing counsel, however, submitted that the petitioner had been able to survive for a very long times of 7 years and, therefore, he was not entitled for appointment after he became major. Moreover the funds, which were made available to the petitioner after the death of his father, late Sajjan Lal Tripathi, were sufficient to take care of his needs. According to him the Tribunal was justified in rejecting the application.
6. Having given our anxious consideration to the various pleas raised by the learned Counsel for the parties, we find that the petitioner has been adopted by late Sajjan Lal Tripathi on 10th September, 1981 during his life time through a registered adoption deed which also bears the signatures of the petitioner's natural father and mother, namely, Sri Hirdai Narain and Smt. Premwati. In the petitioner's High School Certificate the name of his father has been mentioned as Sri Sajjan Lal Tripathi, Sri Sajjan Lal Tripathi died in the year 1984. On the basis of the Succession Certificate the petitioner has been paid the amount outstanding in the G.P.F., Gratuity etc. in the name of late Sri Sajjan Lal Tripathi. He has also been paid the family pension. Thus, it is established beyond doubt that the petitioner has all along been treated by the department as adopted son of late Sri Sajjan Lal Tripathi. The view of the Tribunal to the contrary that there is nothing on record to show that the petitioner has been adopted by Sri Sajjan Lal Tripathi is not correct. Sri Ashok Khare has produced before us the original deed of adoption dated 10th September, 1981 which we have perused and find that it has been duly registered the bears the signatures of the petitioner's natural father and mother. Thus, all ingredients of Sections 6, 11 and 16 of the Hindu Adoption and Maintenance Act, 1956 are complied with. A presumption has to be drawn that the adoption has been made in compliance with the provisions of the said Act as the deed of adoption is a registered one.
7. Now coming to the question of grant of compassionate appointment to the petitioner, we find that the principle, on which a compassionate appointment is to be given, has been well settled by the Apex Court. In the case of Smt. Sushma Gosain and Ors. v. Union of India and Ors. , the Apex Court had held that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. The aforesaid view has been reiterated by the Apex Court in the case of Phoolwati (Smt.) v. Union of India and Ors. (1991) Supp (2) SCC 689.
8. In the case of Umesh Kumar Nagpal v. State of Haryana the Apex Court has held as follows:
As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure to relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the facts that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family...
(emphasis supplied)
9. In the case of State of U.P. and Ors. v. Paras Nath , the Apex Court has held that the purpose of providing employment to the dependent of a Government servant dying in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment.
10. In the case of National Hydroelectric Power Corporation and Anr. v. Nanak Chand and Anr. , the Apex Court has held that appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointment being made on open invitation of application on merit. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.
11. The aforesaid principle has been reiterated by the Apex Court in the case of Commissioner of Public Instructions and Ors. v. K.R. Vishwanath .
12. In the case of Punjab National Bank and Ors. v. Ashwani Kumar Taneja , the Apex Court while reiterating the view taken by it in case the of G.M. (D&PB) v. Kunti Tiwari , has held that the retiral benefits are to be taken into consideration while dealing with the prayer for compassionate appointment. It has further held that under the Scheme for Employment of the Dependants of the employees who die while in service in the Bank the financial condition of the family is to be taken into consideration while considering the case of compassionate appointment.
13. In the case of Govind Prakash Verma v. Life Insurance Corporation of India and Ors. (2005) 10 SCC 289, the Apex Court has held that it was wholly irrelevant for the departmental authorities and the learned single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representative of the deceased employee as benefit of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rule.
14. From the aforementioned cases decided by the Apex Court the following principles emerge which have to be kept in mind while making appointment on compassionate ground:
i). The purpose to provide appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family.
ii). The employee has died in harness leaving his family in penury and without any means of livelihood.
iii). The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis.
iv). It is not to give a member of such family a post much less a post for post held by the deceased.
v). Mere death of employee in harness does not entitle his family to such source of livelihood.
vi). The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provisions of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.
vii). Where the Scheme for Employment of the Dependants of the employees who die while in service the financial condition of the family has to be taken into consideration while considering the case of compassionate appointment, the retrial benefits are to be taken into consideration.
viii). Where, however, the scheme do not envisage taking into consideration the retiral benefits for judging the financial condition of the family, it is wholly irrelevant for the authorities to take into consideration the family pension paid to the widow of the deceased or other amounts paid on account of terminal benefits under the Rules.
15. Applying the principles which have been culled out from the various decisions of the Apex Court, referred to above, we find that the Tribunal had not addressed itself on the aforesaid issues at all. From the pleading of the parties as also from the order passed by the Tribunal we do not find that the scheme/rules under which the petitioner was claiming appointment of compassionate ground was considered by the Tribunal.
16. In this view of the matter we are unable to sustain the order passed by the Tribunal and in the interest of justice after setting aside the same we deem it appropriate to remit the matter back to the Tribunal to decide the original application afresh in accordance with law in the light of the observation made above expeditiously preferably within the period of three months.
17. In view of the foregoing discussions, the writ petition succeeds and is allowed in part. However the parties are left to bear their own costs.