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2003 DIGILAW 1917 (ALL)

Jai Prakash v. State of U. P. , Lucknow

2003-08-26

TARUN CHATTERJEE, VINEET SARAN

body2003
VINEET SARAN, J. ( 1 ) ONE Chhotey Singh, who was a Runner in the Irrigation Department, died in harness on december 30, 1999. Claiming himself to be the adopted son of Chhotey Singh, the writ petitioner-appellant Jai Prakash got an appointment on compassionate ground under the U. P. Recruitment of Dependents of government Servants Dying in Harness Rules,. 1974 (hereinafter referred to as the Dying in harness Rules ). The competent authority (respondent No. 2) cancelled the said appointment of the writ petitioner-appellant on march 31, 2003. Challenging the same, the appellant filed Writ Petition No. 26974 of 2003 which has been dismissed by the learned single judge vide order dated July 14, 2003. Hence this appeal has been preferred against the orders dated March 31, 2003 of the competent authority as well as of the learned single Judge dated July 14, 2003. ( 2 ) THE facts in brief giving rise to this appeal are that after the death of Chhotey Singh on December 30, 1999, his widow adopted the writ petitioner-appellant by a registered deed of adoption dated February 21, 2000. Thereafter, the Writ petitioner-appellant applied for appointment under the Dying in Harness Rules and was given appointment by the respondents on July 22, 2000 under the said Rules. Subsequently realizing that the writ petitioner was not entitled to such appointment, the respondents issued a show cause notice and also required the writ petitioner-appellant to produce the original documents. After considering the entire case of the writ petitioner-appellant as well as the opinion of the District Government counsel, the respondent No. 2 Executive Engineer, Central Ganga Canal Construction Division 5, Bijnor cancelled the appointment of the writ petitioner-appellant vide order dated March 31, 2003. The main ground for cancellation was that the writ petitioner-appellant was not adopted by the deceased employee Chhotey singh during his life time and thus he could not be conferred the benefit under the Dying in harness Rules, 1974, besides the fact that the writ petitioner failed to produce the original documents within the time granted. The main ground for cancellation was that the writ petitioner-appellant was not adopted by the deceased employee Chhotey singh during his life time and thus he could not be conferred the benefit under the Dying in harness Rules, 1974, besides the fact that the writ petitioner failed to produce the original documents within the time granted. ( 3 ) THE learned single Judge dismissed the writ petition challenging the aforesaid order of cancellation of the appointment after holding that the adoption itself was invalid as violative of Section 6 (iii) of the Hindu Adoption and maintenance Act, 1956, and as such there was no question of his being given appointment under the Dying in Harness Rules. ( 4 ) WE have heard Sri R. B. Singhal, learned counsel for the petitioner assisted by sri Mukhtar Alam, as well as learned Standing counsel appearing for the respondents and also perused the record including the impugned orders. In the facts and circumstances of the case, we do not find any error in the order cancelling the appointment of the writ petitioner-appellant and we are also in agreement that he is not entitled to any relief. However, in our opinion, the finding of the learned single Judge that the adoption itself was invalid, was uncalled for, as the same could not be an issue before the Writ Court. ( 5 ) ON the admitted facts of the case, the petitioner was not an adopted son or a dependent member of the family, of the deceased employee Chhotey Singh on the date of his death i. e. December 30, 1999. At the time of the death of Chhotey Singh, the writ petitioner-appellant had no relationship or concern with him. The adoption deed having been executed on February 21, 2000 by Smt. Shiv Devi, widow of deceased Chhotey Singh, would not confer any right on the writ petitioner-appellant to claim appointment under the Dying in Harness Rules, 1974. Sri Singhal, learned counsel for the petitioner, has placed reliance on Rules 5 and 9 of the Dying in harness Rules, 1974. There is no dispute that a member of the family of the deceased, who is not already employed and is otherwise qualified, would be entitled to such appointment on compassionate ground. Sri Singhal, learned counsel for the petitioner, has placed reliance on Rules 5 and 9 of the Dying in harness Rules, 1974. There is no dispute that a member of the family of the deceased, who is not already employed and is otherwise qualified, would be entitled to such appointment on compassionate ground. The only question which requires determination is as to whether the writ petitioner-appellant could be termed as a member of the family of the deceased for the purposes of receiving the benefit under the Dying in Harness Rules, 1974. In our view, for this purpose what is required to be considered by us is whether on the date of death of the employee Chhotey singh, the writ petitioner-appellant could be termed as a dependent member of his family. ( 6 ) SRI Singhal, learned counsel for the petitioner, has submitted that the legal effect of giving a child in adoption is that the child is transferred from the family of its birth to the family of its adoption. He has relied on the decision of the Apex Court in Sitabai v. Ramchandra AIR 1970 SC 343 : 1969 (2) SCC 544 , in support of this proposition. He further, relies on another decision rendered in Srinivas krishnarao Kango v. Narayan Devji Kongo air 1954 SC 379 on the principle of "relation back" which applies only when the claim made by the adopted son relates to the estate of his adoptive father. There is no dispute about the said proposition in so far as it relates to the inheritance and allied matters. But, in the facts of the present case, we are unable to accept the contention of the learned counsel for the petitioner, that the same would also apply for the appointment of an adoptive son on compassionate ground, so much so that it may relate back from a date prior to the date of his adoption. Such theory of "relation back" cannot be granted for the purposes of seeking appointment on compassionate grounds under the Dying in Harness Rules. Such theory of "relation back" cannot be granted for the purposes of seeking appointment on compassionate grounds under the Dying in Harness Rules. ( 7 ) ON the admitted facts, the writ petitioner having been taken in adoption by the widow of the deceased a couple of months after the death of Chhotey Singh, could not be said to be a dependent member of the family of the deceased employee entitled for appointment on compassionate grounds under the Dying in Harness Rules, 1974. The purpose of the said Rules is to provide employment to a dependent member of the family of the deceased employee to tide over the sudden financial crisis which the family of the deceased undergoes because of the sudden death of the sole breadearner of the family. The writ petitioner can in no case be said to be a member of the family of Chhotey singh at the time of his death. He had subsequently acquired the status of being a member of the family by way of an adoption made by the widow of the deceased employee. If the benefit of the Dying in Harness Rules, 1974 is permitted even to those who are subsequently adopted after the death of the employee, it would open a new channel of employment. This would encourage employment through backdoor even to those who were not actually dependants of the deceased employee and had subsequently acquired such status by managing to get adopted in the family of the deceased employee, for the purposes of getting a job. The present day unemployment situation prevailing in the country, where qualified unemployed youth are queuing up in large numbers desperate to get Government jobs, is a fact well known to all and the Courts also cannot shut their eyes to this reality. Such back door entry of employment, if permitted, would defeat the very purpose of appointment on compassionate ground. Even those who are not actually members of the family of the deceased would in this manner, by subsequently getting adopted, put forward their claim and get appointment under the Dying in Harness Rules. ( 8 ) FOR the foregoing reasons, we have no hesitation in holding that a person who has been adopted after the death of the employee would not be entitled to the benefit of the appointment on compassionate grounds under the Dying in harness Rules, 1974. ( 8 ) FOR the foregoing reasons, we have no hesitation in holding that a person who has been adopted after the death of the employee would not be entitled to the benefit of the appointment on compassionate grounds under the Dying in harness Rules, 1974. ( 9 ) WE may make it clear that we are not going into the question as to whether the adoption of the writ petitioner-appellant, who was nearly 18 years of age, could have been legally permissible under the Hindu Adoption and Maintenance Act, 1976 which provides for adoption of only those who have not completed the age of 15 years, unless there is custom or usage applicable to parties. We do not decide this question as the same is neither an issue nor was it before the Writ Court. The said question can only be decided by a competent Civil Court and not in the extraordinary writ jurisdiction. As such, the finding of the learned single Judge whereby he has declared that the adoption of the petitioner itself is invalid was uncalled for, as the said issue was not involved in the case and the same shall not be binding on the parties. ( 10 ) SUBJECT to the aforesaid observations, this appeal is dismissed and the impugned order of the learned single Judge passed in the writ petition as well as the order dated March 31, 2003 passed by respondent No. 2 are hereby confirmed. There shall be no order as to costs. ( 11 ) HOWEVER, before parting with this case, we make it clear that the observations made hereinabove or in the judgment of the writ Court would not prevent the widow of the deceased from seeking appointment under the dying in Harness Rules, 1974 in accordance with law, if she is otherwise qualified and found entitled to the same. . .