Heard Sri Ashok Khare, learned Senior Advocate, appearing on behalf of the petitioner and Ms. Suman Sirohi, learned Standing Counsel.
With the consent of the parties the writ petition is disposed of finally.
The petitioner, being adopted son of the deceased employee, claimed compassionate appointment. His claim for compassionate appointment has been rejected by the order dated 13.6.2011 on the ground that there is no provision for compassionate appointment for adopted son, which is being challenged in the present writ petition.
Learned counsel for the petitioner submitted that under the Uttar Pradesh Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 in the category of dependant's son is mentioned. "Son" is defined under the General Clauses Act, 1897 (hereinafter referred to as the ("Act").
I find substance in the argument of learned counsel for the petitioner.
Section 2 (c) of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 defines the family as follows:
"(i) Wife or husband;
(ii) Sons;
(iii) Unmarried and widowed daughters.
(iv) If the deceased was unmarried Government servant, brother unmarried sister and widowed mother dependent on the deceased Government servant."
Son is not defined under the Rules, 1974.
Section 4 (42) of the Act defines son, which says that "son" in the case of anyone the law applicable to whom permits adoption, shall include an adopted son. Therefore, adopted son is also entitled for compassionate appointment.
Sections 12 and 16 of the Hindu Adoptions and maintenance Act, 1956 which provides the effect of adoption are extract as under:
"12. Effects of adoption---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 h is or her birth;
(c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption."
16.Presumption as to registered documents relating to adoption--- Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved."
From the perusal of above section, it is clear that 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."
In this view of the matter, the adopted son is as good the real son.
Reliance is placed on the decisions of this Court in the case of Sunil Saxena Vs. State of U.P. And others, reported in 1994 (68) FLR, 283, Singhasan Gupta Vs. State of U.P. and another, reported in (1996) 1 UPLBEC, 4, Ravindra Kumar Dubey Vs. State of U.P. and others, reported in 2005 (4) ESC, 2706 (All), in the case of Shiv Prasad Vs. State of U.P. and others, reported in 2009(3) ESC, 1869 (All) and in the case of Jagat Pal Vs. State of U.P. and others, reported in 2011 (2) ADJ, 511, learned Single Judge has held that adopted son will be treated as son for the purpose of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
In view of the above, I am of the considered view that the adopted son also falls within the definition of family defined under section 2 (c) of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 and entitled for the claim of compassionate appointment.
In the result, the writ petition is allowed. The impugned order dated 6/13.6.2011 is set aside and the respondent is directed to consider the claim of the petitioner for compassionate appointment. However, before giving the appointment of the adopted son, the authority concerned should examine the validity of the adopted son with reference to the provisions of Hindu Adoptions and Maintenance Act, 1956.
8.9.2011 OP