Heard Mr. Shekhar Chaudhary, learned counsel for the appellant, Sri Som Narayan Mishra as well as Sri Vivek Shandilya, the learned Additional Chief Standing Counsel for the respondents.
This appeal has been preferred by the original petitioner aggrieved by the dismissal of his writ by the learned Single Judge in terms of the order dated 8 November 2016. The writ petition preferred by the appellant questioned the orders dated 11 October 2010 and 15 October 2010 in terms of which the claim of the appellant for being considered for appointment on compassionate grounds, had come to be turned down. The basic premise of the orders impugned in the writ petition was that the appellant being the adopted son would not stand covered under the definition of "family" as contained in the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 19741. The learned Single judge has noted that although the claim of the appellant had been turned down by an order passed by the respondents on 15 October 2010, the writ petition itself was preferred in 2012. The learned Single Judge then proceeds to observe that the delay and laches had not been explained. However, the learned Single Judge has then proceeded to refer to various judgments rendered by the Supreme Court on the scope of the powers liable to be exercised in matters of compassionate appointment and has ultimately dismissed the writ petition with the following observations:
"In the present case the petitioner had expired on 5.4.2007 and petitioner had made a representation which too was rejected on 5.10.2010, The family survived for the last 9 years and thus it could be safely presumed that the period of immediate crisis has already over and accordingly no indulgence can be granted to the petitioner. Even otherwise, as per the relevant rule applicable to the Corporation, the term family defined therein does not inlcude the adopted son, meaning thereby the adopted son does not fall within the meaning of family as defined under the Rules applicable to the Corporation. Nothing to the contrary has been shown by the learned counsel for the petitioner. In this view of the matter also, the petitioner is not entitled for grant of any indulgence.
Moreover, looking to the fact that compassionate appointment is being sought but nevertheless the fact remains that nothing has been brought on record to show that the rules which are applicable to the Corporation are applicable to the petitioner or that the petitioner falls within the definition of the family in the rules which have been adopted by the Corporation. Even otherwise, it is an established law that the grant of compassionate appointment after a long period is not permissible and if the family can survive for the last so many years i.e. 2007 to 2016 i.e. 9 years, the Court see no reason to grant any indulgence at this belated stage to the petitioner who claims himself to be adopted son. A perusal of affidavit, which was filed in the year 2012, the age of petitioner has been disclosed as 31 years and in this view of the matter also, the petitioner is not entitled for grant of any indulgence at this belated stage."
It becomes relevant to note that the claim of the appellant for being accorded appointment had not been turned down by the respondents on the ground that there is no continued financial crisis faced by the family of the deceased. The learned Single Judge however appears to have assumed that the period of immediate crisis was over and no indulgence was liable to be granted to the appellant. It has been further noted that as per the rules applicable to the Corporation, an adopted son would not fall within the meaning of "family" and in this view of the matter also the appellant has been denied relief.
As noted above, the claim of the appellant came to be rejected by the respondents solely on the ground that he was the adopted son of the deceased employee and therefore not entitled to be considered for the grant of appointment on compassionate basis. The financial condition of the family of the deceased or the dependancy of the appellant upon the deceased were issues which was neither examined nor adjudicated upon by the respondents. In view of the above, we are of the considered view that in the absence of any evidence or material relevant for a decision on the issue, the findings on the point of financial crisis should not have been entered by the learned Single Judge.
This then takes us to the issue of whether an adopted son is liable to be treated as a member of the "family" for the purposes of consideration of a claim of compassionate appointment under the 1974 Rules. Learned counsel for the appellant has drawn our attention to the U.P. State Electricity Council Recruitment of Dependents of Council of State's Servants Dying in Harness Rules, 19752. These rules appear to have been framed by the erstwhile by the U.P. State Electricity Board by exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, 19783. Placing reliance on the said rules and the definition of family as contained therein, learned counsel for the appellant contends that adopted sons stood included in the definition of family as provided for under the 1975 Rules. He therefore submitted that the claim of the appellant could not have been rejected on this score.
Learned counsel for the respondents, on the other hand submitted that by virtue of the provisions of U.P. Electricity Reforms Act, 19994, the erstwhile Board was transposed into the respondent-Corporation and by virtue of the provisions of the 1999 Act, the rules which have been relied upon by the learned counsel for the appellant would have no application. Reference in this connection is also made to a Circular of the Corporation dated 24 October 2002 to submit that it is the 1974 Rules which stood adopted by the Corporation for consideration of claims for appointment on compassionate basis. Additionally the learned counsel for the Corporation has submitted that the 1974 Rules as they stood at the time when the appellant's claim came to be decided and negatived did not include an adopted son as part of the expression "family". It was contended that an adopted son came to be included in the definition of "family" under the 1974 Rules only by way of the IXth Amendment to the Rules which was enforced with effect from 22 December 2011. It is therefore submitted that the claim of the appellant who was admittedly an adopted son was correctly turned down by the Corporation.
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:
1. Subs. by Noti. No. 6/XII-1973-personnel-2-2011-T.C.- IV 22.12.2011 Published in the U.P. Gazette Extra., Part 4 section (Ka) dt. 22.12.2011. Prior to substitution it stood as under:
(c) "family" shall include the following relations of the deceased Government servant:
i. Wife or husband;
ii. Sons;
iii. Unmarried and widowed daughters;
[(c) "family" shall include the following relations of the deceased Government servant:
i. Wife or husband;
ii. Sons/adopted sons;
iii. Unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughter-in law;
iv. unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;
v. aforementioned relations of such missing Government servant who has been declared as "dead" by the competent Court;
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, 19565. 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.
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.
We accordingly allow the instant special appeal and set aside the judgment and order of the learned Single Judge dated 8 November 2016. Writ -A No. -34297 of 2012 (Prem Kishor Vs. State of U.P. & Others) shall consequently stand allowed. The orders dated 11 October 2010 and 15 October 2010 are hereby set aside. In consequence, we direct the fourth respondent to review the claim of the appellant in light of the observations made herein above.
Order Date :- 16.12.2016 Arun K. Singh (Dilip B Bhosale, CJ) (Yashwant Varma, J)