Kumari Vinita Sharma vs Union of India and Others

Instant petition is directed against the order of the Central Administrative Tribunal, Jaipur (for short, ''Tribunal'') dt. 03/06/2005 dismissing the Original Application (for short, the ''OA'') No. 248/2005 filed by the petitioner seeking compassionate appointment claiming herself to be adopted daughter of the deceased employee (late Shri Brij Mohan Sharma). Brief facts, which are required for examining the dispute are that late Shri Brij Mohan Sharma was an employee of the respondent-department and while holding the post of Fitter, died on 09/02/2002. He had executed a registered adoption deed on 13/01/1998 adopting the petitioner while she was of the age of 25 years, however, in view of Sec. 10(4) of the Hindu Adoption and Maintenance Act, 1956, he was not capable to adopt the petitioner but the plea of the petitioner throughout was that her case lies in the exception clause attached to the sub sec. 4 to Sec. 10 of the Act, 1956 wherein if there is a custom or usage applicable to the parties which permits a person, who has completed the age of 15 years can be taken in adoption and if Sec. 10(4) is read with Sec. 16 of the Act, 1956, a presumption has to be drawn if there being a registered document, which was produced after death of the Government servant, claiming herself to be nominee and is adopted daughter. In this regard, the petitioner approached the authorities for release of terminal benefits and when it was not accepted by the administration, Original Application No. 40/2004 came to be filed before the Tribunal which was dismissed vide order dt. 15/05/2005 and it was observed that the petitioner has liberty to avail remedy which the law permits.

It has been informed that after the order of the Tribunal, the petitioner approached the competent court of jurisdiction for obtaining succession certificate which was granted to her pursuant thereto terminal benefits, which were due to the Government employee who died while in service, were released by the department in favour of the petitioner.

It has come on record that after obtaining the succession certificate, the petitioner approached the authorities for seeking compassionate appointment claiming adopted daughter of the deceased Government employee but her application was rejected vide order dt. 02/05/2003 only on the ground that it was not a valid adoption and compassionate appointment could not have been claimed by the petitioner under the law; and that came to be challenged by the petitioner by filing OA No. 248/2004 and the Tribunal, after taking into consideration the material on record, finally observed that the adoption, which has been made to be a basis by the petitioner seeking compassionate appointment, can not be considered to be a valid adoption in the light of Sec. 10(4) of the Act, 1956 and nothing was placed on record by which an inference could be drawn that there was custom and usage applicable to the parties applied for adoption even after completion of 15 years of age and on the said premise the Tribunal was of the view that the petitioner is not entitled to seek compassionate appointment as prayed for and dismissed the OA vide order dt. 03/06/2005 which is subject matter of challenge in the instant proceedings.

Before we may take note of the submission of counsel for the petitioner, it has been brought to our notice that the Government employee (late Brij Mohan Sharma) was unmarried and he adopted the petitioner alongwith her one brother and both are niece and nephew of the deceased Government employee and their naturally biological father is the real brother of the deceased. It has also been brought to our notice that the petitioner was graduate at the relevant point of time and she did PG Diploma and qualified to seek public employment by open competition but counsel has informed that the petitioner tried to seek public employee but to her dismay could not be able to succeed in seeking public employment.

The main thrust of submission of counsel for the petitioner is that this fact was undisputed that a registered adoption deed was executed by late Government employee on 13/01/1998 and he died on 09/02/2002. In the service book of the late Government employee, the petitioner was identified as his nominee and the Tribunal has given much emphasis on Sec. 10(4) of the Act, 1956 but at the same time has not taken care of the protection provided in regard to such of the incumbents who are taken in adoption even after the age of 15 years if there is any custom and usage prevalent in their community as provided u/s. 16 of the Act, 1956. However, there was no document which the petitioner placed on record for the satisfaction of the Tribunal to support that there was a custom and usage prevalent in their society/community but two documents have been placed before this Court and taking their assistance, counsel for the petitioner submits that sufficient documents were available on record to support that there are custom/usage prevalent in their community for taking in adoption the children who are over the age of 15 years and Sec. 10(4) does not come in the way of the petitioner, moreso, when registered adoption deed was executed way back on 13/01/1998. Counsel submits that the finding recorded by the Tribunal are apparently perverse on the face on record and that requires interference by this Court.

Counsel further submits that in a case of compassionate appointment the death of the Government employee have taken place in February, 2002 and the petitioner is pursuing her remedy which the Law permits since then and the latches may not come in her way seeking public employment to which she is otherwise entitled for under the law.

Counsel for the respondents, while supporting the order of the Tribunal, submits that the adoption could not have been taken on its face value unless documentary evidence in support thereof is available on record and the Tribunal has examined extensively the material which come on record and further submits that the compassionate appointment cannot be claimed by the incumbent as a matter of right. It is a exception to the general principles of seeking public employment which is ordinarily to be availed by open competition and that is what the mandate of Art. 14 of the Constitution and the petitioner, who was holding sufficient qualification to seek public employment, if unable to get the same in last 15 years, at least, she could not claim to seek compassionate appointment merely on the basis of adoption as claimed and she cannot be said to be under distress after 11 years of the death of the deceased Government employee, after the petitioner got all retiral dues to which the deceased employee was entitled for under law. In support of his submission, counsel placed reliance on the judgment of the Apex Court in the case of Eastern Coalfields Ltd. v. Anil Badyaker & ors., reported in (2013) 13 SCC 112 and State of Rajasthan and Another Vs. Kumari Urfeen Sabri,

We have heard counsel for the parties and with their assistance examined the material on record.

The facts, which we have taken note of, are not disputed between the parties and the principles seeking compassionate appointment is settled by the Apex Court in its consistent view expressed and in the judgment, on which counsel for the respondents has placed reliance, referred to supra, it has been observed that apart from the delay, it is not a vested or inherited right which can be exercised at a later date and apart from it, the object behind it is to enable the family to get over the financial crisis which it faced at the time of death of the sole bread winner. The compassionate appointment cannot be claimed and offered after lapse of time or after the crisis is over.

In the instant case, apart from the adoption deed, which the petitioner claimed to have been registered (much before the death of the Government employee) the petitioner, in succession got all the retiral dues of late Government employee and there was no other person dependent upon the deceased employee except the petitioner, in view of the principles laid down by the Apex Court one cannot claim compassionate appointment in due course of time or after the crisis is over, in the instant case as well, when the petitioner additionally got all retiral dues of the late Government employee, in succession and no other family member was dependent upon the deceased employee, at least, she cannot be said to be under financial crunch or distress even at the relevant point of time when she approached to the Tribunal for seeking compassionate appointment and apart from it, the petitioner for the first time approached by filing of original application in the later part of 2004 after two years of the death of the deceased employee which took place in February, 2002, and in our considered view as well, when the compassionate appointment cannot be claimed as a matter of right and sufficient means were available with the petitioner being a adopted daughter of the deceased-employee, as alleged and as regards Sec. 16 of the Act, 1956 has not been looked into by the Tribunal, suffice it to say that Sec. 10(4) of the Act, 1956 ordinarily debars an incumbent to take in adoption a child who have crossed the age of 15 years and indisputably, the petitioner was 25 years of age and from the material which has come on record even before this Court regarding the customs and usage prevalent in the society/community of the petitioner, we too are not satisfied and merely because it was a registered adoption deed, no presumption could be drawn that may be helpful for the petitioner to seek compassionate appointment.

We have examined from the different perspective as well, in detail and we do not find any apparent manifest error in the judgment passed by the ld. Tribunal so as to call for interference of this Court. Consequently, the writ petition, being devoid of merit, is hereby dismissed.