JUDGMENT A.P. Sahi, J.
1. The petitioner has questioned the validity and the correctness of the impugned order dated 30.3.2005, annexure XIII to the writ petition, whereby the respondent No. 3 has passed an order for cancelling the appointment of the petitioner as junior clerk on the ground that the petitioner was not entitled to claim compassionate appointment as a dependant (adopted son) of Late Rajendra Pandey. Pursuant to the said order dated 30,3.2005, the Superintending Engineer has passed an order cancelling the appointment of the petitioner on 31.3.2005, which order is also impugned and appended as annexure XII to the writ petition.
2. The grounds of challenge to the impugned orders are that it has been passed on the alleged recommendation of one Sri Kamla Prasad Yadav a member of the legislative Assembly, who has forwarded the compalint of Sri Ram Nain Yadav. The complaint found passage to the Chief Minister's office, whereupon the Chief Engineer was directed to take action and accordingly the order dated 30.3.2005 was passed, which stands established with the note appended at the top of the letter itself. It is further claimed that the order was passed without giving any notice or opportunity of hearing to the petitioner and the orders are in violation of the principles of natural justice. The ground for non suiting the petitioner is absolutely erroneous as the view taken by the respondents on merits is unsustainable, inasmuch as, the factum of adoption of the petitioner could not be successfully dislodged by the inference and conclusion drawn in the impugned order. The submission is that the impugned orders amount to a total surrender of jurisdiction on the basis of a complaint, which found passage to the Chief Minister's office and, therefore, the impugned orders being malafide are liable to be set aside.
3. The parties have exchanged their affidavits and with the consent of the parties, the matter is being finally disposed of.
4. Learned standing counsel has placed reliance on the averment contained in para 4 of the counter affidavit on behalf of the respondents to urge that the petitioner has appeared in the High School examination and the application form indicates the parentage of the petitioner's Upendra Pandey. Later on the parentage has been changed by the petitioner by having got the name of Rajendra Pandey entered in the High School certificate and in such circumstances, the claim of adoption of the petitioner stands negatived and hence the impugned orders deserve to be upheld.
5. A Rejoinder affidavit to the said counter affidavit has been filed by the petitioner denying the said allegation and reiterating the facts stated in the writ petition.
6. The petitioner is the natural son of Upendra Pandey. Rajendra Pandey is the real brother of Upendra Pandey. The petitioner claims to have been adopted by his uncle and aunt on 4.3.1996. Rajendra Pandey was an employee in the Irrigation Department and he was murdered on 15.12.1996. The complainant Ram Nain Yadav is stated to be implicated in that murder. The petitioner was only 13 years of age at the time of his adoption by his adoptive parents in 1996 and therefore, the petitioner's mother had moved an application claiming the appointment on compassionate basis in the year 1998. The factum of adoption in 1996 was sought to be substantiated by the adoption deed, which was registered on 3.1.2003 acknowledging the adoption of 1996, The said registered deed of adoption is annexure XIV to the writ petition.
7. The claim of compassionate appointment was processed by the respondents and a query was made by the Executive Engineer. The query of the Executive Engineer was replied by the petitioner's mother on 27.9.2002, copy whereof is annexure V to the writ petition. A complaint was entertained against the claim of the said compassionate appointment followed by the Superintending Engineer directing the Executive Engineer to make the queries in this regard. The Executive Engineer called for a report from the Tahsildar ( Asstt. Collector ) Deoria to submit a report after making an enquiry with regard to the dependancy of the petitioner and the registration of the adoption deed. The Tahsildar submitted a report , which is annexure VI to the writ petition, stating therein that on the basis of the adoption in 1996 a succession certificate had been issued in 1997 in favour of the petitioner treating him to be the adopted son of Late Rajendra Pandey. This was followed by another succession certificate issued on 11.10.2002 wherein it was certified that the petitioner had succeeded as the adopted son of Late Rajendra Pandey. The said report was forwarded by the Executive Engineer to the Superintending Engineer, who submitted the enquiry report to the Chief Engineer vide letter dated 24.6.2003, which is annexure VIII to the writ petition. The Chief Engineer directed the Superintending Engineer to do the needful and accordingly report the matter to the Chief Engineer. The Superintending Engineer issued a notice to the petitioner calling upon him to obtain a succession certificate from the civil court to demonstrate that the petitioner has succeeded as the adopted son of Late Rajendra Pandey. The petitioner accordingly applied and was issued a succession certificate under the Indian Succession Act from the Civil court, Deoria. After submission of the entire documents, the Superintending Engineer on 14.7.2004 issued a letter of appointment to the petitioner appointing him on compassionate basis.
8. A perusal of all the aforesaid documents leave no room for doubt that a thorough enquiry was made with regard to the claim of the petitioner, whereafter the petitioner was found entitled to be extended the benefit of compassionate appointment. The petitioner joined duty and has been continuously working as a junior clerk.
9. The impugned order has emanated thereafter and it is established from the pleadings that the same was passed and the directions were issued without giving any notice or opportunity to the petitioner. The fact that no notice or opportunity was given to the petitioner is also accepted in para 19 of the counter affidavit. In view of this the impugned orders are liable to be set aside on the sole ground that they are in clear violation of the principles of natural justice.
10. The other ground taken in the writ petition is that the order has emanated at the behest of the Chief Minister's office and which fact is evident from a perusal of the impugned order itself. This in the opinion of the court amounts to surrender of jurisdiction, which is impermissible in law.
11. The Superintending Engineer had already issued a letter of appointment after enquiring into the factum of the adoption and the same could not have been dislodged on the ground that a report has been made with regard to a discrepancy in recording of the parentage of the petitioner as referred to in the impugned order. The discrepancy which has been referred to, is that the petitioner had appeared in 1998 in the High School Examinations, wherein he had referred to his natural father namely Upendra Pandey in the parentage column, whereas after having failed in the said examination, when he again appeared in 1999, then the parentage was changed and in the father's column the name that was entered was Rajendra Pandey. The impugned order of the Chief Engineer infers that the aforesaid discrepancy remained unexplained and , therefore, the same amounted to a violation of the provisions of Dying in Harness Rules, 1974 and as such the appointment of the petitioner is liable to be cancelled.
12. The error in the parentage in the application of the first High School examination in the opinion of the court was at the best a circumstance for the respondent. Chief Engineer to have doubted the parentage of the petitioner. The same was. however, not a conclusive proof reflecting upon the factum of adoption. The adoption of the petitioner has not been disbelieved on any of the grounds that could have been the basis as provided for under the Hindu Adoption and Maintenance Act, 1950. A perusal of the adoption deed which was registered for acknowledging the adoption of 1996 indicates that all the ingredients of Sections 6, 11 and 16 of the Hindu Adoption and Maintenance Act were present to support the factum of adoption. On the other hand, no such infirmity has been pointed out in the impugned order, which may otherwise indicate that an invalid adoption has been accomplished. In such circumstances, the inference drawn by the Chief Engineer is unfounded in law.
13. The sole circumstance of the incorrect name of the petitioner's father in the High School examination in 1998 does not in any way dilute or dissolve the factum of adoption. A succession certificate was issued from the civil court and the registered adoption deed has been found to be genuine by the Superintending Engineer and which was made the basis for extending the benefit of appointment on compassionate basis to the petitioner after making a detailed enquiry.
14. The impugned order no where discusses am of the material circumstances and the evidence of probative value, which was the basis of accepting the claim of compassionate appointment . In the absence of any such consideration, which was referred to in detail in the report dated 24.6.2003, the impugned order appears to be perverse, apart from being illegal. In the opinion of the court, there is no violation of the 1974 Rules so as to describe the appointment of the petitioner as invalid and warrant cancellation thereof.
15. The circumstance that a complaint had emanated at the instance of those, who were involved in the murder of Late Rajednra Pandey also militates against the respondents. There existed is no reason to entertain another complaint and thereafter cancel the appointment of the petitioner without giving him any notice or opportunity and without correctly appreciating the position of law.
16. The impugned orders, in the opinion of the court, are in violation of principles of natural justice and without jurisdiction, perverse and founded on erroneous inferences of facts and law.
17. Consequently the order dated 30.3.2005 annexure XIII and the consequential order dated 31.3.2005 annexure XII to the writ petition are quashed . The petitioner's appointment as junior clerk vide order dated 14.7.2004 is up held with a direction to the respondents to allow the petitioner to continue in service and further to ensure the payment of his entire benefits to which he is entitled in law treating him to be in continuous service. The arrears of salary shall be paid to the petitioner within three months with effect from the date of cancellation of his appointment till today and the petitioner shall be entitled to receive current salary as well.
18. The petition is allowed with no order as to costs.