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2019 DIGILAW 91 (ALL)

Vishal v. State of U. P.

2019-01-10

YASHWANT VARMA

body2019
JUDGMENT : YASHWANT VARMA, J. 1. Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents. 2. This petition challenges an order dated 18 December 2015 in terms of which the claim of the petitioner for appointment on compassionate grounds has been turned down on the ground that the petitioner, an adopted son, of the deceased government servant would not fall within the definition of "family" since the same came to be amended to include an adopted son only in 2011 though the father of the petitioner had died on 14 November 1999. 3. The petitioner claims to be the adopted son of the erstwhile government servant. He claims that the adoption was effected and completed by virtue of a registered deed of adoption dated 21 September 1999. This fact is not disputed by the respondents. The only issue which, therefore, arises for consideration is whether the mere fact that an adopted son came to be included in the definition of "family" in the 1974 Rules after the death of the government servant would be a valid ground to defeat the claim of the petitioner. 4. The stand taken by the respondents cannot be countenanced for more than one reason which are spelt out hereinafter. 5. Undisputedly, under the 1974 Rules, a son of a deceased government servant always stood included in the definition of family. Adoption, as is well settled, results in the severance of all ties with the family of birth and tranposes the adoptee as a member of the adoptive family. He acquires the same status as that of a natural child of the adoptive parents. This is manifest from the provisions of Section 12 of the Hindu Adoption and Maintenance Act, 1956 which engrafts a legal fiction by providing that the adopted child "shall be deemed to be the child of his or her adoptive father or mother..". An adopted child does not stand on a footing inferior to that of a natural born child of the adoptive parents. Giving effect to the fiction engrafted in Section 12, which the law necessarily mandates and commands, it would be wholly illegal to consider an adopted child as one distinct or inferior to a naturally born offspring. 6. An adopted child does not stand on a footing inferior to that of a natural born child of the adoptive parents. Giving effect to the fiction engrafted in Section 12, which the law necessarily mandates and commands, it would be wholly illegal to consider an adopted child as one distinct or inferior to a naturally born offspring. 6. The stand taken by the respondents is clearly contrary to the mandate of Section 12 of the 1956 Act and the settled legal position in respect of the status of an adopted child. Regard may be had to the following observations as they appear in a decision of the Supreme Court in Sitabai v. Ramchandra, (1969) 2 SCC 544 : 5. It is clear on a reading of the main part of Section 12 and sub-section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. .......... The scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son-ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widow's family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-section (4) Section 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of Sections 11 and 12 of Act 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses." 7. Way back in 1993 and much before the Ninth Amendment to the 1974 Rules, a learned Judge of this Court in Sunil Saxena v. State of U.P.,1994 68 FLR 283 held: - "8. Another objection raised by the respondents about the petitioner being adopted son and not the real son of the deceased is not tenable. After adoption the petitioner is engrafted in the family of the deceased, who was his adoptive father. Under Hindu Law he gets all the rights, privileges and obligations of a son. Therefore, there is no difference between a real son and adopted son. Son would include adopted son if the adoption is valid. In the present case the adoption is not challenged as being invalid or suffering from any lacunae. Therefore, the adoption of the petitioner, which is evidenced by registered deed, cannot be said to be bad or against the provisions of Hindu Law. That being so, the petitioner is entitled to claim all the benefits like a real son." 8. This position in law has been consistently followed by this Court in numerous decisions including in Vikas Jauhari Vs. State of U.P., (2012) 132 FLR 308 From the above, it is manifest that the Ninth Amendment to the 1974 Rules can only be understood as clarificatory in character. This position in law has been consistently followed by this Court in numerous decisions including in Vikas Jauhari Vs. State of U.P., (2012) 132 FLR 308 From the above, it is manifest that the Ninth Amendment to the 1974 Rules can only be understood as clarificatory in character. It merely reiterated and clarified a position which was duly recognised ever before its introduction. 9. Lastly and is well settled, it is the statutory position as prevailing on the date of consideration of the application that governs and not that as obtaining on the date when the application was made. In the context of compassionate appointments itself, the Supreme Court in SBI Vs. Raj Kumar, (2010) 11 SCC 661 observed thus:- "13. Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts. 14. In this context we may usefully refer to the decision of this Court in Union of India v. R. Padmanabhan, (2003) 7 SCC 270 wherein this Court observed: (SCC pp. 278-79, para 8) "8. ... That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the guidelines and policy in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the scheme itself. The line of decisions in relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to State of T.N. v. Hind Stone, (1981) 2 SCC 205 . That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such a view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously." 15. We may also refer to the decision of this Court in Kuldeep Singh v. Govt. of NCT of Delhi, (2006) 5 SCC 702 which considered the question of grant of liquor vend licences. This Court held that where the applications required processing and verification the policy which should be applicable is the one which is prevalent on the date of grant and not the one which was prevalent when the application was filed." 10. In view of the above, the impugned order cannot be sustained. 11. The writ petition is consequently allowed. The impugned order dated 18 December 2015 is hereby quashed. Consequently, the matter shall stand remitted to the second respondent for taking a decision afresh bearing in mind the observations made hereinabove.