Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 189 (JK)

Daleep Singh v. State

2013-04-05

TASHI RABSTAN

body2013
1. The petitioner being adopted son of the deceased employee, claimed compassionate appointment. His claim for compassionate appointment has been rejected vide letter No.Est/Estab/SRO-43/2005/Dilip/20 dated 30.07.2007 on the ground that adoption of the petitioner had taken place after the death of Sh. Lal Singh, which is being challenged in the present writ petition. 2. It is contended that mother of the petitioner was married with one Sher Singh Mandyal. Out of the said wedlock, the petitioner was born. In the year 1976, when petitioner was 3-4 years of age, his natural father died. Thereafter, mother of the petitioner, namely, Smt. Aishnoo Devi married to Sh. Lal Singh, who was real younger brother of natural father of the petitioner. Immediately after second marriage of mother of the petitioner with Lal Singh, the petitioner was adopted in accordance with Hindu rites and ceremonies. 3. It is also contended that Lal Sing (adoptive father of the petitioner) was working as Chowkidar in the Jammu and Kashmir Estate Department and was posted with Director General of Police. Said Lal Singh has no issue of his own and the petitioner was the only son, who was adopted in the year 1976. Unfortunately, Sh. Lal Singh died on 09.04.2003 in harness due to prolong illness and left behind his widow and the petitioner as his adopted son. 4. Petitioner submitted application on 23.04.2003 to respondent No.1 for appointment on compassionate grounds. He was directed to submit the proof of his adoption which he submitted. The petitioner was also declared as legal heir of late Sh. Lal Singh entitling him to lay claim among others under SRO 43 of 1994 by virtue of judgment and decree dated 27.10.2003 passed by the learned 2nd Additional Munsiff, Jammu. Respondent No.3 vide his letter dated 27.05.2005 recommended the case of the petitioner to respondent No.2. The petitioner had submitted all the requisite documents, which were required for his appointment on compassionate ground. 5. To the utter surprise, respondent No.2 vide his communication No. Est/Estab/SRO-43/2005/ Dilip/20 dated 30.07.2007 rejected the case of the petitioner on the ground that his case does not fall within the purview of SRO 43 of 1994. 6. Respondents in their reply stated that so called adoption-deed is not a validly construed document, therefore, cannot be termed as adoption deed in the eyes of law as it lacks essential features required under law. 6. Respondents in their reply stated that so called adoption-deed is not a validly construed document, therefore, cannot be termed as adoption deed in the eyes of law as it lacks essential features required under law. It is apt to reproduce paras 6 to 14 of the reply as under:- "6-14. That the averments are self-contradictory. It is submitted on the one hand the petitioners started claiming compassionate appointment on the basis of so-called adoption-deed alleged to have been executed in the year 1984 by late Shri Lal Singh and on the other hand after the death of Shri Lal Singh in 2003 filed a suit before learned 2nd Additional Munsiff, Jammu seeking declaration that petitioner herein is the adopted son of Shri Lal Singh filed a suit before learned 2nd Additional Munsiff, Jammu and is entitled to benefit of SRO 43 of 1994. It is submitted that the conduct of petitioner seeking declaration from the learned Munsiff, Jammu after the death of Sh. Lal Singh and claiming himself to be the adopted son on the basis of document of 1984 is totally contradictory and needs to be rejected. It is stated, the compassionate appointment rules cannot be converted into alternate source of appointment in to alternate source of appointment in the Government service, the petitioner has survived for six long years after the death of Shri Lal Singh and the very purpose of SRO 43 gets defeated. It is submitted that SRO 43 is an exception to general rule and has been carved out in order to help an government employee to tide over the sudden crisis resulting due to the death of bread earner who had left the family without any means of livelihood. It is submitted that the petitioner has not pleaded anything in the writ petition regarding the essential features required for claiming compassionate appointment, the writ petition needs to be dismissed. The order impugned rejecting the claim of the petitioner is within the framework of rules and requires to be upheld by this court." 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioner urged that respondents have rejected the case of the petitioner on non-existent ground. It is contended that in the year 1976 when petitioner was of 3-4 years of age, he was adopted by deceased Lal Singh. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioner urged that respondents have rejected the case of the petitioner on non-existent ground. It is contended that in the year 1976 when petitioner was of 3-4 years of age, he was adopted by deceased Lal Singh. The document which was executed in the year 1984 clearly shows that he was adopted in the year 1976. On the other hand respondents have stated that the petitioner was adopted after the death of Sh. Lal Singh (adoptive father of the petitioner), therefore, his case does not fall within the purview of SRO-43. 9. Learned counsel for the petitioner further submitted that in terms of SRO 43 of 1994, adopted son is also entitled to the compassionate appointment. Explanation (d) to Rule 2 of the said SRO is relevant which is reproduced herein :- "(d) Family means spouse, son, daughter, adopted son, adopted daughter, sister or brother wholly depended on the deceased." 10. In terms of the aforesaid Rule, it is crystal clear that the petitioner falls within the definition of "Family" and, accordingly, he submitted all the documents to the respondents to substantiate his adoption and dependency. 11. In the judgment and decree, by virtue of which the petitioner has been declared legal heir of deceased Lal Singh, there is a mention of the fact that petitioner was of 3-4 years old at the time when he was adopted by deceased Lal Singh as his son and continued to reside with him in such capacity. Petitioner further submitted that he is also enjoying the usufruct of the property left behind by deceased Lal Singh including his service benefits. In this regard, Annexure-C attached with the petition also substantiates that petitioner is the adopted son of deceased Lal Singh. Even documents annexed with petition also reveal that petitioner is enjoying the status of adopted son of late Shri Lal Singh. 12. Since the competent Civil Court has already passed a decree of declaration to the effect that petitioner is a legal heir of deceased Lal Singh, entitling him to lay claim over his entire property including service benefits, pension, G.P.Fund, gratuity, Insurance and other monetary service benefits etc. 12. Since the competent Civil Court has already passed a decree of declaration to the effect that petitioner is a legal heir of deceased Lal Singh, entitling him to lay claim over his entire property including service benefits, pension, G.P.Fund, gratuity, Insurance and other monetary service benefits etc. read with the fact that he placed reliance on the documents annexed with the petition, the decree itself clinches the issue that the petitioner was adopted son of deceased Lal Singh, thus, declared him as legal heir after his death. Status of the petitioner being adopted son of deceased Lal Singh is well established and cannot, therefore, be disputed by the respondents. Reason for rejecting his claim vide communication dated 30.07.2007 is unsustainable in the eyes of law. 13. In the given circumstances, this petition is allowed. Communication No. Est/Estab-SRO-43/2005/Dilip/20 dated 30.07.2007 is hereby quashed. Respondents are directed to consider the claim of the petitioner for compassionate appointment in terms of the rules occupying the field within a period of two months from the date copy of the order is made available to them. 14. Disposed of as above along with connected CMA(s).