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2014 DIGILAW 1462 (ALL)

Sanjay Kumar v. State of U. P.

2014-05-05

ASHWANI KUMAR MISHRA, DEVI PRASAD SINGH

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JUDGMENT Heard learned counsel for the appellant-petitioner and learned Additional Chief Standing Counsel and perused the materials available on record. With the consent of the parties' counsel, we decide the instant appeal at admission stage, since question raised by appellant-petitioner's counsel substantially based on law. 2. This is an appeal under rules of the court against the impugned judgment and order dated 31.3.2014 passed by learned Single Judge in Writ Petition No.3238 (S/S) of 2004, by which the writ petition has been dismissed. 3. The appellant-petitioner, being adopted son of deceased government employee late Naumilal, was appointed on compassionate ground on 16.2.2014. His appointment was cancelled by the impugned order dated 1.6.2004 on the ground that his adoption-deed was not registered one. At the face of the record, the impugned order dated 1.6.2004 has been passed solely on one ground that the adoption-deed was not registered under the statutory mandate. Section 16 of the Hindu Adoption and Maintenance Act, 1956 provides that there shall be presumption with regard to registered documents relating to adoption. However, the U.P. Amendment given effect 1.1.1977 provides that secondary evidence of such document shall be admissible under certain circumstances in the manner laid down in the Indian Evidence Act, 1872. For convenience, Section 16 followed by U.P. Amendment given effect 1.1.1977 is reproduced as under: - "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 this Act unless and until it is disproved. STATE AMENDMENT UTTAR PRADESH: In its application to State of Uttar Pradesh S.16 is renumbered as sub-section (1) thereof and after sub-section (1) as to renumbered, sub-section (2), inserted namely: "(2) In case of an adoption made on or after first day of January, 1977 no Court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force: Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872." See Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 (57 of 1976), S. 35 (w.e.f. 1.1.1977)" 4. Learned counsel for the appellant-petitioner has further invited our attention to a judgment and decree of Civil Court, by which succession certificate has been granted for the purpose to take post retiral dues of deceased government employee late Naumilal. In pursuance to the judgment and decree dated 15.11.2003 issued by Civil Judge (Senior Division), Lucknow, the appellant-petitioner has been granted the post retiral dues of the deceased government employee late Naumilal. The judgment and decree dated 15.11.2003 has been filed as Annexure-5 to the present appeal and was also on record before learned Single Judge. 5. In view of above, it appears that the statutory ground relying upon by the appellant has not been considered and order has been passed without considering the U.P. Amendment. Learned Single Judge has also not considered the effect of U.P. Amendment as well as the judgment and decree of the Civil Court, by which the post retiral dues of the deceased government employee late Naumilal has been provided to the appellant-petitioner. 6. It is well settled proposition of law that a government order or decision taken by the government affecting civil rights must stand on its own leg and it cannot be supplemented by filing affidavit or relying upon certain materials, which are not a part of the record vide AIR 1978 SC 851 : Mohinder Singh Gill and another vs. The Chief Election Commissioner New Delhi and others. 7. Accordingly, the sole ground, on which the appellant-petitioner's appointment has been cancelled, seem to require consideration on merit. 7. Accordingly, the sole ground, on which the appellant-petitioner's appointment has been cancelled, seem to require consideration on merit. Learned Single Judge, while dismissing the writ petition by impugned judgment and order dated 31.3.2014, has not considered the proposition of law raised by the appellant-petitioner, which seems to be on record. It shall be appropriate that this court should record finding with regard to the effect of the U.P. Amendment as well as the affect of judgment and decree of the Civil Court by which succession certificate has been issued and appellant-petitioner has been provided post retiral dues of the deceased government employee late Naumilal. Once the government has accepted the succession certificate and does not disputed it and provided retiral dues to appellant-petitioner, then prima-facie the government has no right to deny the appointment on compassionate ground under dying in harness rules, merely on the ground that the adoption deed was not registered one. U.P. Amendment provides that additional evidence under the Indian Evidence Act shall be admissible to defend any unregistered adoption deed. 8. In view of above, we allow the present appeal and set aside the impugned judgment and order dated 31.3.2014 passed by learned Single Judge and restore the Writ Petition 3228 (S/S) of 2004 to its original number and remit back to learned Single Judge to take afresh decision keeping in view the pleadings on record as well as the observations made hereinabove. Since affidavits between the parties have already been exchanged, it shall be appropriate that the writ petition, which is pending in this court last 10 years, be listed before appropriate regular bench and decided afresh expeditiously in accordance to law. Registry shall list the writ petition regularly till its final hearing by learned Single Judge on merit. Let the writ petition be listed in the 3rd week of May, 2014 before appropriate regular bench.