Jai Prakash Sharma vs State of Rajasthan and Others

Arun Madan, J.—This petition has been filed before this Court under Article 226 of the Constitution of India in the matter of alleged violation of Articles 14 and 16 of the Constitution of India read with Rajasthan (Recruitment of Dependents of Government Servants Dying while in Service) Rules 1975 and in the matter of Rajasthan Service Rules 1951 (hereinafter referred to as the ''Rules'')

The facts giving rise to the filing of this writ petition briefly stated are that the petitioner is an adopted son of (Late) Shri Ram Niwas Sharma who expired on December 13, 1972 during his service tenure after remaining ill for a long period. The said Shri Ram Niwas Sharma was posted at Tahsil Sikrai as Class IV employee before his demise. He was appointed on the said post on June 14, 1943 and his date of birth was June 12, 1918. It has been further contended in the writ petition that the natural father of the petitioner was Shri Hijari Lal Sharma S/o. (Late) Shri Ram Dhan Sharma who expired on May 9, 1962. Late Shri Ram Dhan Shrma was the elder brother of (Late) Shri Ram Niwas Sharma who was unmarried. It was further contended in the petition that the petitioner was living with him and was wholly dependent on him for his day to day expenses, residence and education after the demise of his natural father and that the petitioner looked after the welfare of Shri Ram Niwas and that he had executed a will in favour of the petitioner on October 13, 1970 which was registered in the Office of Sub-Registrar Sikrai vide Annexure-1. From the recitals of the will, it is explicitly clear that the petitioner shall be entitled to receive the amount of pension, gratuity and insurance etc. being the legal heir of the deceased. It is further contended on behalf of the petitioner that the petitioner had already received the amount due on account of insurance on the policy having matured after the demise of Shri Ram Niwas being the nominee of the deceased.

It has been further contended that (Late) Shri Ram Niwas had no issue being unmarried and after executing the will during his life time he had lawfully adopted the petitioner after performing the necessary ceremonies required for adoption with the consent of the widowed natural mother of the petitioner in the presence of the relatives and several other persons of the caste according to the Hindu rites and customs and in accordance with the entire procedure of "Data Homam" etc. After the giving the petitioner in adoption to Shri Ram Niwas Sharma the petitioner''s mother expired on April 27, 1973. It has been further contended that the petitoner''s mother did not have any source of income to support her till her demise since her husband had pre-deceased her.

In support of the contentions advanced by the petitioner in the petition, the petitioner has also placed on the record of this Court an affidavit of Shri Mool Chand, a neighbour and Shri Heera Lal, nephew of Late Shri Ram Niwas Sharma who were present at the time of adoption ceremonies and they have deposed to the effect in their affidavits that a valid and proper adoption of the petitioner by Shri Ram Niwas had taken place in their presence vide Annexure - 2 & 3 respectively. By way of abundant caution, the petitioner has placed on the record a copy of the application which was moved by the deceased Ram Niwas Sharma for transferring the amount due to the deceased on account of insurance policy to his Provident Fund Account on July 24, 1972. There is a note appended to the said application wherein it is specifically mentioned that the nomination of the petitioner as adopted son of (Late) Shri Ram Niwas be accepted from which it becomes explicitly clear that the deceased has no objection in nominating the petitioner as his legal heir or nominee for receiving the amount due to the deceased from the Government Securities, i.e. Pension, Provident Fund, Gratuity, Insurance etc.

It has been further contended by the learned counsel for the petitioner that after the demise of (Late) Shri Ram Niwas Sharma, request was made to the Collector, Jaipur through Tasildar, Sikrai to finalise the pension case of (Late) Ram Niwas Sharma, but no pension has been given to the petitioner nor he has received any intimation. It has been further contended that the petitioner being the lawful nominee and adopted son of deceased Shri Ram Niwas has also not received any amount due to the deceased on account of gratuity. In support of his contention, the learned counsel for the petitioner has further stated at the bar that the petitioner had submitted an application on January 5, 1988 for appointment on the post of Class IV employee as the legal heir of (Late) Shri Ram Niwas Sharma as clearly permitted under the Rules, but no attention was given to the said application nor the petitioner had received any intimation from the respondents in this regard till date. On the contrary, the petitioner received a reply from the respondents vide letter dated May 4, 1989 vide Annexure-5, wherein it has been mentioned that since (Late) Shri Ram Niwas was unmarried it cannot be presumed that the petitioner had validly been adopted by him.

In this connection, it has been contended by the learned Government Advocate for the State the petitioner if at all, was aggrieved by the impugned letter dated May 4, 1989 it was open to the petitioner to have moved the civil Court by filing a Declaratory suit in this regard which he had not done. It is also contended by the counsel for the State that since the adoption has not been proved by any documents i.e, adoption deed etc., on the basis of a registered will which has been placed on the record it cannot be inferred that a valid adoption had taken place in the matter.

In support of his contention, the learned counsel for the petitioner has placed reliance upon a judgment passed by the Division Bench of this Court in the matter of Herald Hamilton v. State of Rajasthan and Anr. reported in 1987(2) RLR 511 wherein this Court while dealing with the identical situation had allowed the writ petition by recording the finding to the effect that the petitioner in terms of Rule 3 read with Rule 5 of the Rules 1975 was entitled to make an application for the purpose of giving him a suitable employment in Government service against any existing vacancies which is not within the purview of State Public Service Commission. The Court held as under:

"In view of the proposition of law laid down in the above referred cases and the context in which the word ''family'' appears in the definition and the intention of the rule makers, we are of the opinion that it is a word of loose and flexible description and not a technical term. It is also obvious that its ambit has to be determined, having regard to the habits, ideas and socio- economic milieu of the parties. It is also clear that it is not to be understood in a narrow sense of being a group of persons who are recognised in law having a right of succession or having a claim or right to a share in the property or meaning only a member of Hindu Joint Family. We, therefore, hold that a brother living with the unmarried sister for the purposes of the Rules of 1975 in the facts and circumstances of the case, would constitute a member of the family of the unmarried sister."

It will be relevant to mention another judgment of this Court in the matter of Jaswant Singh v. State of Rajasthan and Ors. reported in WLR 1992 (S) Raj. 325, wherein while interpreting the meaning of word "family" under the rules in question reiterated the earlier view of this Court case (supra) as under-

"the context in which the word "family" appears in the definition and the intention of the rule makers, we are of the opinion that it is a word of loose and flexible description and not a technical term. It is also obvious that its ambit had to be determined, having regard to the habits, ideas and socio-economic milieu of the parties. It is also clear that it is not to be understood in a narrow sense of being a group of persons who are recognised in law having a right of succession or having a claim or right to a share in the property or meaning only a member of Hindu Joint Family. We, therefore, hold that a brother living with the unmarried sister for the purpose of the rules of 1975 in the facts and circumstances of the case, would constitute a member of the family of the unmarried sister."

The aforesaid decision of this Court was followed by this Court earlier in the matter of Madhu Sudhan Chauhan ''s case (S.B.C.W. Petition No. 3665 of 1990) decided on November 20, 1990 (Sic) 1988 (1) RLW 142. Reliance was also placed by the learned counsel for the petitioner on a decision of this Court in the matter of Madhav Prasad v. Rajasthan State Road Transport Corporation and Ors. reported in 1989 (1) RLR 562 (head note ''C'' para 14). In the said decision, this Court after examining all the facts and circumstances of the case, arrived at the conclusion that since no return was filed by the respondents in answer to the writ petition and in the absence of the return to the writ petition the averments contained in the writ petition must be accepted as true.

It will be pertinent to mention in this context that in the present writ petition as well no return has been filed by the respondents in reply to the writ petition till date notwithstanding several opportunities having been granted by this Court from time to time.

It has been contended by Shri Rastogi, learned counsel for the petitioner that in this case, there is no necessity of executing the separate adoption deed particularly in view of the fact that all customary ceremonies in connection with a valid, proper and lawful adoption had taken place in the presence of the relatives including neighbours of the petitioner. Moreover, the deceased had executed a registered will vide Annexure-1 in favour of the petitioner wherein it is specifically mentioned that the petitioner is the legal heir of deceased and shall be treated as such, for succeeding to all the benefits which may be due to the petitioner i.e, pension, gratuity, insurance etc., and hence there is no necessity of adoption deed. It has further been: contended by the learned counsel for the petitioner that after the execution of the will dated October 13, 1970, the petitioner was adopted by Shri Ram Niwas and this fact has not been disputed by (Late) Shri Ram Niwas in Annexure-4 ; referred to above. Alternatively it is pleaded by the learned counsel for the petitioner that the factum of adoption of the petitioner has not been disputed by the respondent which also fortifies that a valid adoption had taken place in accordance with the customary rites and ceremonies as envisaged under the Hindu Adoption and Maintenance Act, 1956. It will be pertinent to mention here Sections 6, 7, 9(3), 10 and 11 of the said Act and Rules 2(f), 3 and 5 of the Rajasthan (Recruitment of Dependants of Government Servants Dying While in Service) Rules, 1975 also support the case of the petitioner. Rule 2(f) defines the word ''family'' as under:-

"Family" means the family of the deceased Government servant and shall include wife or husband sons and unmarried or widow daughters and son/daughter adopted according to the provision of law by the deceased Government servant, who were dependant on the deceased Government servant.''

Rule 3 of the aforesaid rule defines the application of the rules which reads as under :

"Application of the rules :- These rules shall be applicable for recruitment of dependants of the deceased Government servants to public services and posts in connection with the affairs of the State except posts in major State Services, i.e, the Rajasthan Administrative Service, the Rajasthan Police Service, Rajasthan Forest Service and Rajasthan judicial service and Rajasthan Accounts Service".

Rule 5 of the aforesaid Rules defines the recruitment of a member of the family of the deceased as under:-

"In case of deceased Government servants one member of the family who is not already employed under the Central/State Government or Statutory Board/Organisations/Corporations owned or controlled by the Central/State Government shall, on making an application for the purpose, be given a suitable employment in Government service without delay only against an existing vacancy which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules. Provided such members fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Government service in the event of non-availability of a vacancy or any of the members of the family being unqualified or minor is not found suitable or eligible for immediate employment then such cases should be considered immediately on the availability of the post or any one of them becomes qualified or eligible for such employment under these rules".

From a perusal of the Act and the rules referred to above, it is clearly apparent that there is no provision in the Act or the Rules to the contrary so as to deprive an adopted son to succeed to the estate of the deceased such as, Pension, Gratuity, Provident Fund, Life Insurance etc., so long as he has been validly adopted by the deceased father or any other relative of the deceased as the case may be. This fact is clearly borne out from the recitals of the will (Annexure-I) as well as the affidavits of the witnesses which have been placed on record as referred to above and there is no dispute that the petitioner had been validly adopted by the (late) Shri Ram Niwas Sharma.

After going through the relevant provision of the Act and the Rules as referred to above and after hearing the rival contentions advanced by the learned counsel for the parties, I am of the considered opinion that a valid and proper adoption of the petitioner by Ram Niwas (deceased) has taken place and there is no evidence on the record to suggest to the contrary. I am further of the opinion that the petitioner is entitled to claim payment of pension, gratuity and other retiral benefits to which deceased Ram Niwas Sharma was entitled by virtue of his service with the respondents being the legal heir and adopted son of the deceased Ram Niwas Sharma. The petitioner is further entitled for appointment to the post of Class IV on which the deceased Shri Ram Niwas Sharma was working at the time of his demise and since the petitioner was eligible for appointment on the post of Class IV when he moved the application with the respondent on January 5, 1988, he should have been considered for the same in accordance with the Rules. I am further of the opinion that keeping in view the facts and circumstances of the case, it is not necessary that the petitioner should have moved the Civil Court by filing a Declaratory suit since there is no dispute regarding adoption of the petitioner which at the most was open to the relatives of the petitioner who have not disputed the same and consequently it is not open to the respondents to allege that such suit should have been filed by the petitioner as it does not vest any right with the respondents particularly when there is no dispute regarding succession of the petitioner to the estate of the deceased as his legal heir by any of the other claimant. In my opinion, therefore, the petitioner is entitled to succeed and be appointed on Class IV post which the deceased Ram Niwas was holding in accordance with rules and also to Pension, Gratuity and Provident Fund dues to which (Late) Shri Ram Niwas was entitled.

In the result, the writ petition is allowed with cost quantified at Rs. 5,000/- (Five thousand) with the direction that the costs should be recovered from the erring official concerned, who had failed to file reply to the writ petition inspite of the repeated directions given by this Court on the principles of accountability. It is further directed that the respondents are liable to make payment to the petitioner with interest @12% per annum on the amount from the date due to the petitioner till the date of actual payment on account of Gratuity, Provident Fund, Family Pension and other retiral benefits to which the deceased Ram Niwas was legitimately entitled to succeed in accordance with rules. It is further directed that the respondents shall appoint the petitioner on the post of Class IV on which (Late) Shri Ram Niwas was working within a period of 8 weeks from today.