Motilal Jingar @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:

“(a) that the respondents be directed to consider the case of the petitioner for compassionate appointment by treating his as legally adopted son of

Late Smt.Laxmi Jingar and further, be provided compassionate appointment suitable to his qualifications.

(b) Any other appropriate writ, order or direction towhich the petitioner may be entitled to in the facts and circumstances of the case may kindly be

passed in favour of the petitioner.

(c) Cost of this writ petition may kindly be awarded tothe petitioner.â€​

Brief facts of this case, as noticed by this Court, are that the petitioner was adopted by Late Smt.Laxmi Jingar on 06.05.2015, and the adoption

deed was registered on 25.05.2015 before the Sub Registrar, Sirohi. Smt.Laxmi Jingar, while discharging her duties as Upper Division Clerk with the

respondent-Department, expired on 31.01.2016. The petitioner applied for compassionate appointment, being legally adopted son of deceased

Smt.Laxmi Jingar, by way of submitting application dated 24.02.2016, alongwith the complete required documents. The Superintending Engineer,

PHED, Sirohi forwarded the matter to the Chief Engineer vide letter dated 25.04.2016.

The aforementioned application of the petitioner seeking compassionate appointment has been rejected by the Chief Engineer vide letter dated

01.05.2017, on account of the matter having been sent to the Personnel Department and information having been received therefrom to the effect that

as per Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956 (in short, ‘the Act of 1956’), only a person, who has not completed

fifteen years of age, can be taken in adoption, while the petitioner’s age at the time of adoption was seventeen years, and Late Smt.Laxmi Jingar

had also not informed the Department regarding the said adoption of the petitioner, as required by the circular dated 26.08.2006.

The aforesaid order of the Chief Engineer rejecting the application of the petitioner for compassionate appointment was communicated to him by

the Assistant Engineer vide its letter dated 23.05.2017.

Learned counsel for the respondents states that on a bare perusal of the aforementioned adoption deed, the age of the petitioner was found to be

seventeen years, on the date of its registration, and as per the Act of 1956, only a person less than fifteen years of age can be taken in adoption.

Learned counsel for the respondents further submitted that the petitioner has failed to give any reason as to why the said adoption had not happened

before his attaining the age of fifteen years.

Learned counsel for the respondents, while referring to Section 10(iv) of the Act of 1956, has submitted that as per the said provision, only a child

less than fifteen years of age, can be taken in adoption.

For ready reference, Section 10(iv) of the Act of 1956 is quoted hereinbelow:

“10. Persons who may be adopted.â€"No person shall be capable of being taken in adoption unless the following conditions are fulfilled,

namely:â€" (i) . . . . . . . . . . . .

(ii) . . .  . . . .    . . . . .

(iii) . . . . . . . . .  . . . .

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have

completed the age of fifteen years being taken in adoption.â€​

In refutation to the aforesaid submissions made on behalf of the respondents, learned counsel for the petitioner has submitted that the petitioner was

customarily taken as a legally adopted son of Late Smt.Laxmi Jingar, but the registration of such adoption had happened only on 25.05.2015.

Learned counsel for the petitioner further submitted that Section 10(iv) of the Act of 1956, as quoted above, would not be a bar, if the respective

custom permits customary adoption, and thus, denial of the compassionate appointment to the petitioner on the strength of the said provision of the Act

of 1956, is not permissible in the eye of law.

Learned counsel for the petitioner, in regard to the customary adoption, has referred to para 1 of the adoption deed dated 25.05.2015. The said

para 1 of the adoption deed reads as under:-

“1- ;g fd izFke i{kdkj y{eh dqekjh us vius oa'k dks vkxs pykus ds fy, viuk uke vkckn j[kus ds fy, r`rh; i{k tks fd f}rh; i{dkj dk izkd`frd iq= gS tks

vius tkfr fjrh fjokt vuqlkj o vius dqVqEc i{k dks bdVBk dj xkns fy;k gS rFkk xksn dh j'e esa izFke i{kdkj us r`rh; i{k dks vius xkns esa fcBkdj dqVqEc

o ifjokj lekt okyksa esa xqM+ o feBkbZ vkfn ckVadj leLr tkr fcjknjh ds le{k r`rh; i{k ekrshyky dks xkns fy;k gS] rFkk f}rh; i{kdkj us vius iq=

eksrhyky dks jkth [kq'kh ls izFke i{kdkj dks xksn fn;k gSAâ€​

Learned counsel for the petitioner, thus submitted thatthe customary adoption was in existence in the respective custom of the concerned parties,

which is evident from the aforequoted para 1 of the adoption deed.

Learned counsel for the petitioner has referred to Rule 2(c) of the Rajasthan Compassionate Appointment of Dependants of Deceased

Government Servants Rules, 1996 (in short, ‘the Rules of 1996’) and submitted that the adopted son comes within the definition of the term

‘Dependent’, as contained in the said Rule 2(c), and thus, the petitioner, being the legally adopted son of Late Smt.Laxmi Jingar, cannot be

deprived of the benefit of compassionate appointment.

Rule 2(c) of the Rules of 1996 reads as under:-

“2. Definitions.- In these rules unless the context otherwise requires:-

(a) . . .      . . . .

(b) . . .     . . . . .

(c) “Dependent†means a spouse, son, unmarried orwidowed daughter, [adopted son/adopted unmarried daughter] legally adopted by the

deceased Government servant during his/her life-time and who were wholly dependent on the deceased Government servant at the time of his/her

death.â€​

Learned counsel for the petitioner further harped upon the fact of the petitioner being the undisputed legally adopted son of Late Smt.Laxmi Jingar,

as she had not married and had validly taken the petitioner in adoption.

After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that Section 10(iv) of the Act of 1956

would not bar the adoption, as has been made in the present case, completely, as the said provision itself contained a proviso in relation thereto, which

is reflected from the aforequoted portion of the said provision, and thus, the customary adoption is also permissible under the law, even after the

person taken in adoption has completed the age of fifteen years, if the respective custom so permits.

This Court further finds that Section 10(iv) of the Act of 1956 is not a bar or an absolute law of adoption, and once the adoption deed has been

registered on 25.05.2015, which was well before the death of Smt.Laxmi Jingar, the mother of the petitioner, who expired on 31.01.2016, then it was

not open for the respondents to have denied compassionate appointment to the petitioner.

The petitioner has moved the application seeking compassionate appointment in accordance with law, as he falls within the definition of the term

‘Dependent’ as contained in Rule 2(c) of the Rules of 1996, as quoted above, and hence, merely because the official records in relation to Late

Smt.Laxmi Jingar do not carry mention of the adoption of the petitioner by her, the same cannot be a ground for denial of a validly registered

document i.e. the registered adoption deed, and thus, the petitioner ought to be granted compassionate appointment being legally adopted son of Late

Smt.Laxmi Jingar.

In light of the aforesaid observations, the present writ petition is allowed, and the respondents are directed to provide compassionate appointment

to the petitioner on any suitable post as per his educational qualifications, while treating him to be the legally adopted son of Late Smt.Laxmi Jingar,

within a period of 90 days from today, strictly in accordance with law.