Court No. - 34
Case :- WRIT - A No. - 9607 of 2015 Petitioner :- Devendra Kumar Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Rupesh Srivastava,Amrendra Mishra,Mahendra Narayan Singh,Naresh Chandra Tripahti,Suchita Tripathi Counsel for Respondent :- Mahendra Narayan Singh,Satish Mandhyan
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondent. Although the second and third respondents are duly served, none has appeared on their behalf even when the matter was taken up in the revised call.
Learned Standing Counsel fairly states that the issues raised in this petition stand concluded in favour of the petitioner in light of the judgment rendered by the Division Bench of the Court in Prem Kishor v. State of U.P. And Others [2017(1) ADJ 294 (DB)].
The prayer of the petitioner for being accorded compassionate appointment has been turned down by the respondents solely on the reasoning that adopted sons would not fall within the definition of "family" as employed by the 1974 Rules prior to the introduction of the Ninth Amendment to those Rules which was enforced on 22 December 2011. The respondents in view of the above take the position that since the father of the petitioner had died in April 2008 and thus evidently prior to the introduction of that amendment, the claim of the petitioner would not merit consideration.
Dealing with the aforesaid issue the Division Bench of the Court in Prem Kishor held as follows:-
" 7. While learned counsel for the Corporation appears to be correct in his submission that the 1975 Rules would have no application, the issue which still remains for consideration is whether the claim of the appellant was liable to be considered under the provisions of the 1974 Rules. For appreciation of the controversy which stands raised, it would be apposite to extract below the definition of ''family'' as employed in the 1974 Rules as it existed prior to the IXth Amendment and as it stands subsequent thereto. This would be evident from the following table:
8. As is evident from the above, sons were always considered as part of the family of the deceased Government servant. An adopted son under the provisions of law does not stand in in a position inferior to a natural son. This is more than evident from a reading of Section 12 of the Hindu Adoption and Maintenance Act, 1956 (1956 Act). The Amendment of 2011, in our considered opinion, is merely clarificatory in character and only amplifies a position which was already implicit in the expression ''son'' as used in the 1974 Rules. We see no reason to read Rule 2 (c) of the 1974 Rules so as to exclude an adopted son from the expression ''son'' as used therein. We record this conclusion also bearing in mind that the 1974 Rules are a beneficial piece of legislation and must be interpreted accordingly.
9. In view of the above, we are of the considered opinion that the rejection of the claim of the appellant solely on the ground that he was the adopted son and therefore not covered under the 1974 Rules cannot be sustained."
In view of the above, the ends of justice would warrant the impugned order being set aside and the matter remitted to the respondents for considering the claim of the petitioner afresh. Accordingly the writ petition is allowed. The impugned order of 28 November 2014 is quashed. The matter shall stand remitted to the third respondent for considering the claim of the petitioner for appointment on compassionate basis afresh with expedition. It is only clarified that this Court has interfered with the impugned order solely on the grounds and for the reasons noted above. All other aspects germane to the consideration of grant of compassionate appointment which would include consideration of factors such as a situation of financial despondency as well as the petitioner being dependent on the deceased government servant at the relevant time are left open to be considered independently by the respondents.
Order Date :- 29.9.2021 Faraz