Rajes Kumar, J.@mdashHeard Sri L.C. Srivastava, learned Counsel for the petitioner and Sri Sandeep Singh, Advocate holding brief of Sri B.P. Singh, learned Counsel appearing on behalf of the respondents. The petitioner claims himself to be the adopted son of Sushila Kumari, who was working as Assistant Teacher in Primary Pathsala, village Bhalaswa Isapur, Block Balaikheri, district Saharanpur, which was under the Basic Shiksha Adhikari, Saharanpur, is claiming compassionate appointment on her death, in-harness on 11.3.2004. When the claim of the petitioner for the compassionate appointment has not been considered, the petitioner filed Writ Petition No. 11620 of 2006, which has been disposed of vide order dated 12.11.2007 asking the Secretary, Basic Shiksha Pari shad, U.P. at Allahabad to decide the application of the petitioner. In pursuance thereof, the application of the petitioner has been decided by the impugned order dated 23.1.2008 and the same has been rejected. The application has been rejected on the ground that the petitioner''s date of birth is 12.3.1981 while the registered adoption deed is executed on 11.9.2000 when the petitioner was nineteen years, five month and twenty days old, while in accordance to section 10(4) of Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the "Act, 1956") the adoption of a person below the age of fifteen years can be made and thus, in accordance to section 10(4) of the Act, 1956, the petitioner was not eligible for the adoption and accordingly, the claim of compassionate appointment has been rejected.
2. Learned Counsel for the petitioner submitted that the petitioner has been adopted at the age of two years by Sushila Kumari, which is apparent from the adoption deed and such recital is in the adoption deed itself. To regularise such adoption in accordance to law and to give legal shape, the registered adoption deed has been executed on 11.9.2000 and has been got registered. Therefore, the adoption was made in accordance to provisions of Act, 1956. The said adoption deed has not been held void, illegal, ineffective and in-operation by any of the competent Court and, therefore, cannot be disputed. Further section 16 of the Act, 1956 raises presumption that whenever any document is 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. In the present case, the said documents has not been disproved by any of the competent authority and, therefore, it stand valid.
3. He further submitted that section 12 of the 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.
4. In the present case adoption took place when the petitioner was two years old, thus, the date of adoption should be deemed on the said date. Merely because the documents is registered in the year 2000, the actual date of adoption at the age of two years old, cannot be disputed. He further submitted that the definition of Family as provided in section 2(c) of the U.P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974 includes son, which also includes the adopted son. Reliance is placed on the decision of this Court in the case of Shiv Prasad v. State of U.P. and others 2009 (3) UPLBEC 2482 : 2009 (76) ALR 14 (Sum.).
5. Learned Counsel for the respondents has relied upon the impugned order and submitted that the petitioner may be deemed to have been adopted on the date when the adoption deed has been executed and has been registered, i.e., on 11.9.2000 and on the said date petitioner was 19 years old and, therefore, in view of section 10(4) of the Act, 1956 such adoption deed was not valid and, therefore, the petitioner cannot be treated as adopted son and is not entitled for the compassionate appointment.
6. I have considered the rival submission and perused the record.
7. The facts are not in dispute, namely, that the petitioners'' date of birth is 12.3.1981. The execution of adoption deed is 11.9.2000 and Sushila Kumari, Assistant Teacher died on 11.3.2004 in harness. There is no dispute that in view of definition of family section 2(c) of the Rules, 1974 the family includes the son. The son includes the adopted son. This view has been consistently taken by this Court. In the case of Shiv Prasad v. State of U.P. and others (supra) held that adopted son is included in the definition of son and has been held to fall within the definition of "family" under Rule 2(c) of the Rules, 1974.
8. Now the question for consideration is whether the petitioner can be treated as adopted son, pursuant to adoption deed which is annexed as Annexure-2 to the writ petition.
9. In the adoption deed there is a clear recital that date of birth of the petitioner is 12.3.1981 and when the petitioner was two years old he has been adopted by Sushila Kumari. In paragraph No. 4 of the writ petition, it is stated the petitioner was adopted on 12.6.1983 after performance of "Duttak Hawan" in accordance to Hindu rites. In paragraph No. 6 of the writ petition, it is stated that just after the date of adoption, the petitioner was nursed and look after by the adoptive mother to avoid any complications and thereafter, the adoption deed was got registered. Such averments have not been specifically controverted. Thus, it is clear that the petitioner was adopted when he was two years old. To legalise the said adoption, adoption deed has been executed on 11.9.2000 and was registered. The said registered adoption deed has not been challenged and it has neither been declared void, improper, ineffective nor in-operation by any of the competent Court. The recital made in the adoption deed is not disputed. Therefore, the adoption is deemed to have been made when the petitioner was two years old and thus, it was in accordance to provisions of Hindu Adoption and Maintenance Act, 1956. Sections 12 and 16 of the Act, 1956 reads as follows:
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 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.
10. 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.
11. In the case of Shiv Prasad v. State of U.P. and others (supra) the petitioner therein was adopted when he was two years old and started living with his adoptive parents and adoption deed was also got registered. On consideration of provisions of U.P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974, it has been held that the petitioner therein was entitled for the claim of compassionate appointment.
12. In view of the above, the impugned order is not sustainable and is liable to be set aside and is accordingly, set aside. The petitioner is entitled to be appointed on compassionate ground being adopted son. The respondents are directed to consider compassionate appointment treating the petitioner as adopted son of Sushila Kumari within a period of two months from the date of presentation of the certified copy of this order. The writ petition is, accordingly, allowed.
