Anand Bharati vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

“i to call for and peruse the entire records related to the impugned order dated 27.09.2018 and to set aside and quash the same (impugned order dated 27.09.2018), allow the present original application with cost.

ii. to issue suitable orders and directions to the concerned respondent authority to consider the claim of applicant for suitable employment in railway under the compassionate scheme pursuant to his legibility and qualification within reasonable time to secure the ends of justice.

iii. issue any suitable order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case.

iv. Award the cost of the petition”.

The brief facts of the case are that the deceased employee adopted the applicant on 31.07.2012 as per Hindu Law. Deceased employee died on 29.08.2013 leaving behind the applicant as sole dependent. The adoptive father of the applicant also executed his registered will dated 1.8.2012 in respect of his movable and immovable property admitting the applicant as his adopted son. Applicant submitted several representations for compassionate appointment but it was not decided as yet. Aggrieved against the non-action of the respondents, applicant filed original application No. 330/01168/2017 before this Tribunal, which was disposed of by the Tribunal on 22.09.2017 with a direction to the respondents to pass reasoned and speaking order on the representation of the applicant within two months. When no order was passed on the representation of the applicant, applicant filed contempt petition No. 330/91/2018. On the direction of the Tribunal, respondents passed speaking order on 27.09.2018, which was assailed in this O.A.

On notice, respondents have filed counter affidavit, in which respondents have stated that deceased employee Shri Chandra Mohan died while in service on 29.08.2013 and after his death, the applicant has approached the department for giving him appointment on compassionate ground. Applicant has filed OA No. 1168/2017 which was disposed of by this Tribunal vide order dated 22.09.2017. On the direction of the Tribunal, respondents passed reasoned and speaking order dated 27.09.2018.

Heard Shri Gulab Chandra, learned counsel for the applicant and Shri Subhash Chandra Mishra, learned counsel for the respondents and perused the record.

Learned counsel for the applicant would contend that the applicant is legally adopted son of late Shri Chandra Mohan in view of registered adoption deed dated 31/01.8.2012 but case of the applicant for compassionate appointment has not been considered by the respondents on the basis of adoption deed. He also submitted that respondents have also not considered his case as per registered will executed by late employee. It has been argued that Railways should not ignore the registered adoption deed for consideration of his claim for compassionate appointment. He relied upon the following judgments-

“(i) Akash Goel Vs. State of U.P and others passed in Civil Misc. Writ Petition NO. 15389/2008 on 08.01.2014.

(ii) Vikas Jauhari Vs. State of UP and Ors. Passed in Civil Misc. Writ Petition No. 52048 of 2011 on 8.9.2011.

(iii) Krishna Kumar Vs. State of UP and others passed in Writ-A No. 33892 of 2012 on 22.4.2016.

(iv) Ravindra Kumar Vs. State of UP and three others in Writ A No. 40700/2014 passed on 4.10.2016.

Learned counsel for the respondents argued that during consideration of claim of applicant, it is found that even after registration of the adoption deed in 2012, applicant has mentioned the name of his natural father Shri Munna Bharti in High School certificate and not the name of deceased employee. He further argued that none of the official documents had been produced by the applicant which reflects that applicant is an adopted son of deceased employee and hence claim of the applicant has rightly been rejected by the respondents through the impugned order.

In rebuttal, learned counsel for the applicant submitted that the natural father got the applicant admitted in local school Adarsh Navjyoti Junior High School, Varanasi in his childhood mentioning the name of his natural father Anand Bharti and therefore, the name of his father continued in the High School certificate. Also, in reply to the submission of the respondents that none of the official documents had been produced by the applicant which reflects that applicant is an adopted son of deceased employee, it is submitted that applicant has already submitted adoption deed and registered will executed by the deceased employee which shows that applicant has been adopted by the deceased employee and hence the submission of the learned counsel for the respondents is not acceptable.

I have gone through rival submission including the judgment referred by the learned counsel for the applicant.

In the case of Akash Goel (supra), the Hon’ble High Court has held that Section 12 of the Hindu Adoption and Maintenance Act, 1956 provides 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 and Hon’ble High Court further held that Section 16 of the Act, 1956 provides that whenever any documents 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. The respondent is not able to dispute that the said adoption deed has been disproved by any of the competent authority. Therefore, it is not open to the respondents to dispute the recital in the adoption deed and validity of registered adoption deed and that the petitioner is not legally adopted son. For proper adjudication, Section 12 and 16 of the Act is reproduced below:-

"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 his 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 5 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."

Section 16 read with Section 11 (4) of the Hindu Adoption and Maintenance Act 1956 clearly envisages a statutory presumption that in the event of there being a registered document pertaining to adoption, there would be a presumption that adoption has been made in accordance with law.

It is clear from the above that adoption deed was executed in favour of the applicant by the deceased employee which was registered on 01.08.2012, which is a valid document. The factum of adoption and its validity has not been disputed in the counter affidavit and once the registered adoption deed is valid and the same has not been cancelled by any Competent Court then the Railways has no jurisdiction to reject the claim of applicant on the ground that in the educational certificates of the applicant, the name of his natural father was mentioned. It is also clarified that applicant started his school education from the childhood when he had not been adopted. Merely on this basis the name of natural father continued in educational certificate till 2016. It shall not be presumed that applicant has not been adopted by deceased employee. Mere non-mentioning the details of the applicant as dependent in the service record after adopting will not also be sufficient to decline the compassionate appointment to the applicant on death of deceased employee. Applicant is adopted child and it is established from the adoption deed, which is a registered documents. Thus, court is of the opinion that authority concerned arbitrarily has passed the impugned order rejecting the claim of the applicant.

For the foregoing reasons, the O.A. is allowed and the impugned order dated 27.09.2018 passed by respondents is set aside and matter is remanded to the respondents to re-consider the claim of applicant for compassionate appointment and pass a reasoned and speaking order in the light of observations made hereinabove within a period of 3 months from the date of receipt of certificate copy of this order. No costs.