Heard Counsel for the petitioner and the learned Standing Counsel.
In the instant writ petition, the petitioner has questioned the validity of the impugned order dated 21.4.2007 whereby the compassionate appointment to the petitioner has been refused, who is adopted son of deceased Lalta Prasad.
Counsel for the petitioner submits that deceased Lalta Prasad Singh was a Clerk in the Irrigation Department, District Sultanpur and while working on the said post, he died on 3.12.2005. The deceased in his life time and his wife had adopted Ankit Kumar on 1.2.1998, but the adoption deed was registered on 31.12.2005. After due formalities the proposal for appointment on compassionate ground was sent to the opposite parties, who did not accept the proposal and consequentially the opposite party no. 2 passed the impugned order dated 21.4.2007 on the ground that adopted son is not covered within the definition of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 1974 Rules for the sake of brevity).
Counsel for the petitioner submits that distinction cannot be drawn between the natural son and adopted son by taking shelter of definition of 'family' under 1974 Rules and as such the petitioner cannot be denied compassionate appointment. He further submits that the 1974 Rules have been amended several times on different occasion and even the scope of family has been expanded by including unmarried brother and sisters.
Learned Standing Counsel refuting the allegations of the petitioner's counsel, urged that under the provisions of 1974 Rules, the adopted son does not fall within the ambit of the dependent of Government Servant and as such, the claim of the petitioner for compassionate appointment has been rightly rejected and there is no illegality or infirmity in the impugned order dated 21.4.2007.
The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 has been framed in exercise of the powers conferred by Article 309 of the Constitution of India. The Uttar Pradesh Recruitment of Dependents of Government Servants under 1974 Rules are 2 special set of rules, which have been made for providing a source of livelihood, and to give some respite to the members of the deceased Government servant's family at a time when the family is suddenly struck with a calamity where the sole bread earner dies. The overall idea and concept of these rules is to keep the family in main streamline of the society for which economic security and social status is to be provided by the State Government.
Initially these Rules were applicable to the Government servant only. Lateron, the same were made applicable to the teachers and staff of the Colleges and Primary School.
Rule 2 is the definition clauses and defines the Government Servant, deceased government servant and the family. Rule 2(C) where the word 'family' has been defined reads as under:-
"family" shall include the following relations of the deceased Government servant:
(i) wife or husband:
(ii) sons:
(iii) unmarried and widowed daughters:
Rule 3 of the said rules makes these rules applicable to the recruitment of dependents of the deceased government servants to public services and posts in connection with the affairs of the State of Uttar Pradesh, except services and post which are within the purview of the Uttar Pradesh Public Service Commission.
Rule 4 gives an overriding effect to those rules by providing that they shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of those rules.
Rule 5 of the 1974 Rules deals with the recruitment of the member of the family of the deceased on a suitable post.
Rule 6 provides that an application for appointment under these Rules shall be addressed to the appointing authority in respect of the post for which appointment is sought.
It is pertinent to mention that Dying in Harness Rules, 1974 were amended from time to time and by Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness (Sixth Amendment) Rules, 2001, the relations included in the family of the deceased government servant have been described, which reads as under;-
1. Wife or Husband
2. son
3. Unmarried daughters and widowed daughters.
4. Dependant unmarried brother, unmarried sister and widowed mother of the deceased government servant, if he was unmarried.
On June 28, 2006 the State Government brought Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness (Seventh Amendment) Rules, 2006 whereby in Rule 5 it has been inserted in clause (3) and (4) as under:-
(3) Every appointment made under sub rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.
(4) Where the person appointed under sub-rule(1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his service may be terminated in accordance with the Uttar Pradesh Government Servant ( Discipline and Appeal) Rules, 1999, as amended from time to time."
The question whether an adopted son is entitled for compassionate appointment or not came up for consideration in Sinhasan Gupta vs. State of U.P. and another [(1998) 1 UPLBEC 4 and this Court while answering in affirmative relied upon an earlier decision rendered in Sunil Saxena vs. State of U.P. reported in 1994 FLR 283, which reads as under:-
" another, objection raised by the respondents about the petitioner being adopt son and not the real son of the deceased is not tenable. After adoption, the petitioner is engrafted in the family of the deceased, who was his adopted father. Under Hindu Law he gets all the rights, privileges and obligations of a son. Therefore, there is no difference between a real son and adopted son. Son would include adopted son if the adoption is valid."
The decision rendered in Sinhasan Gupta vs. State of U.P. and another [supra] has been followed by this Court in a subsequent decision rendered in Rakhi Singh vs. State of U.P. and others; [2006(24) LCD 182].
At this juncture it would be useful to refer some of the provisions of The Hindu Adoptions and Maintenance Act, 1956 which was enacted with a view to amend and codify the law relating to adoptions and maintenance among Hindus. Chapter II deals with the adoption and Section 5 of the Act says that no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void. Section 6 deals with the requisites of a valid adoption and enjoins as under:-
"No adoption shall be valid unless:-
(I) the person adopting has the capacity, and also the right, to take in adoption; (II) the person giving in adoption has the capacity to do so;
(III) the person adopted is capable of being taken in adoption; and (IV) the adoption is made in compliance with the other conditions mentioned in this Chapter."
It may be clarified that under Section 6, the law does not recognize an adoption by a Hindu of any person other than Hindu.
Section 10 deals with persons who may be adopted and reads as under:-
"No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:--
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(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."
Section 12 deals with the effects of adoption and reads as under:-
"An adopted child shall be deemed to be the child 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:
Provided that -
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption."
In Basvarajappa Vs Gurubasamma and others [(2005) 12 Supreme Court Cases 290], the Supreme Court had an occasion to consider the provisions of Section 12 of the Act and held in paragraph 11 of the report as under:-
"... On adoption, the adoptee gets transplanted in the family in which he is adopted with the same 5 rights as that of a natural-born son. The legal effect of giving a child in adoption is to transfer the child from the family of his birth to the family of his adoption. He severs all his ties with the family from which he is taken in adoption. ..."
From the perusal of the aforesaid provisions and the proposition of law, laid down in Basvarajappa's case (supra), it is abundantly clear that on adoption, adopttee gets transplanted in adopting family with the same right as that of natural born son. Adopted child becomes coparcener in joint Hindu family property after severing all his ties with the natural family. Thus, there remains no distinction between the natural son and the adopted son. Had there been any intention of the legislature to exclude the adopted son, from the definition of family, as defined in 1974 Rules, there would have expressly excluded the adopted son.
In the present case, the factum of adoption has not been disputed in the impugned order. The adoption of the petitioner has been made by a registered deed, which cannot be said to be bad or against the provisions of Hindu Law and as such, the petitioner is entitled for all the benefits which are available tot the natural born son.
For the reasons stated above, the writ petition is allowed and the impugned order dated 21.4.2007 passed by the opposite party No.2 is hereby quashed. The respondents are directed to consider afresh the application for appointment of the petitioner commensurate to his qualification, in their department, within three months, in light of the observations made here-in-above from the date of presentation of a certified copy of the judgment before the respondents.
Dt.7.1.2010 Lakshman/