Lok Pal Singh, J
1. By means of present writ petition, petitioner has sought the following reliefs:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 23.03.2010 (annexure no.1 to this writ petition) passed by
respondent no.1.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to appoint the petitioner under dying in harness for decease.
(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to change the Dying in Harness Rules, 1974 in family
members list.
(iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to compliance the order passed by this Hon’ble Court vide
order dated 07.11.2018.
(v) Issue any suitable order or direction as this Hon’ble Court may deem fit and proper in the circumstance of the case.
(vi) Award the cost of the writ petition to the petitioner.
2. Factual matrix of the case is that the petitioner is the adopted son of Late Shri Shyam Singh, who was working as regular Baildwar in the
establishment of the Public Works Department, Narendranagar and died while in service on 29.01.2007. After his father’s death, the petitioner,
being the only son, moved an application before the authority concerned on 23.04.2007 seeking appointment on compassionate grounds. Said
application was rejected by the Secretary, Government of Uttarakhand, vide letter dated 23.10.2010, stating that under the provisions of Uttarakhand
U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 and Uttaranchal (the Uttar Pradesh Recruitment of
Dependents of Government Servant Dying in Harness Rules, 1974) Adaptation and Amendment Order 2002 and First Amendment 2004 adopted by
State of Uttarakhand, the adopted son does not fall within the ambit of the dependent of Government Servant and as such the petitioner being the
adopted son cannot be provided compassionate appointment.
3. It is stated that for providing financial help to the family member of the deceased government employee under the Uttar Pradesh Grants Fund,
husband/wife, legal son, step son or daughter, father, mother are defined as family. Further, for the purpose of getting family pension, family is defined
as: (1) husband/wife (2) minor son (3) unmarried minor daughters and (4) legally adopted child before the retirement of deceased employee, whereas
for providing appointment on compassionate grounds in view of Dying in Harness Rules, wife/husband, son, unmarried daughter or widow daughter,
unmarried son, unmarried sister or widow mother (in the case of deceased employee being unmarried), has been defined as family/dependent. The
grievance of the petitioner is that being the adopted son he cannot be discriminated by the respondent for the purpose of providing appointment on
compassionate ground.
4. Counter affidavit has been filed by respondent no.3 stating that in compliance of this Court’s order dated 07.11.2008 the case of the petitioner
was considered for compassionate appointment and the same was rejected by the Secretary, Government of Uttarakhand vide order dated 23.3.2010
as the adopted son is not defined in the Uttaranchal (the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules,
1974) Adaptation and Amendment Order 2002 and First Amendment 2004 (hereinafter to be referred as the Dying in Harness Rules).
5. Rejoinder affidavit has been filed to the counter affidavit of respondent no.3 wherein it is stated that on 30.06.2004 an adoption deed was executed
by father of the petitioner. In that adoption deed it is categorically stated that Shri Shyam Singh and his wife i.e. Guddu Devi have adopted one son
before 20 years ago with their own will and with the whole Hindu customs and ceremonies of adoption. It is also stated that the order dated
23.03.2010 mentioned for the purpose of refusing the claim of the petitioner does not hold ground for the simple reason that the word “son†used
in the G.O./prevailing rules does not distinguish between “adopted son†or a “biological sonâ€.
6. I have heard learned counsel for the parties and perused the entire material brought on record.
7. Learned counsel for the petitioner submits that the petitioner cannot be denied compassionate appointment merely because of the fact that he is the
adopted son of the deceased employee. She would submit that the petitioner was legally adopted child of deceased employee Late Shri Shyam Singh
and Smt. Guddu Devi and in this regard a registered adoption deed was executed on 30.06.2004. She would submit that as per Section 12 of the Hindu
Adoptions and Maintenance Act, 1956 an adopted child severs all his/her connections with the natural family as soon as a valid adoption is made, and,
he/she must be treated as a Class I heir of a deceased male Hindu and, therefore, must be treated at par with the natural heir and legal representative
of a deceased who had adopted him. To buttress her submissions, learned counsel would placed reliance on the following judgments:-
(i) Basavarajappa vs. Gurbasamma (2005) 12 SCC 290
... On adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural-born son. The legal effect
of giving a child in adoption is to transfer the child from the family of his birth to the family of his adoption. He severs all his ties with the family from
which he is taken in adoption. ...
(ii) Sarat Chandra Das v. Revenue Officer (1994) 1 Cal LT 395
“6. From the discussions made hereinabove and considering the relevant provisions of the Adoption Act there cannot be any doubt that an adopted
child shall inherit the properties of his/her adoptive father or mother as an heir and legal representative of his/her deceased adoptive father or mother.
It is also clear that when a valid adoption is made such adoption cannot be cancelled by the adoptive father or mother and at the same time the
adopted child cannot renounce his/her status after adoption and return to his natural family.
17. Such being the position, it must be held than an 'adopted child' must be considered to be a member of a raiyat who has adopted him as, the
'adopted child' soon after valid adoption, severs all his/her ties with his/her natural family and he/she cannot inherit any property on the death of his/her
natural father or mother. In view of Section 12 of the Adoption Act that an adopted child severs all his/her connections with the natural family as soon
as a valid adoption is made, he/she must be treated as a Class I heir of a deseased male Hindu and, therefore, must be treated at par with the natural
heir and legal representative of a deceased who had adopted him. It cannot be the intention of the legislature that when an adopted child losses all
his/her right of inheritance in respect of the property of his/her natural family, if a valid adoption is made, and becomes a member of the family of the
raiyat who had adopted him/her, the adopted child, at the same time, losses his right to inherit the properties of his/her adoptive father or mother as
well.
18. For the foregoing reasons, it must be hold that an 'adopted son' of a raiyat is also a 'son' as mentioned in Section 14K(c) of the Act for the purpose
of determining the ceiling area of such raiyat.
(iii) Sunil Saxena vs. State of U.P. and others (1993) SCC Online All 535
“8. Another objection raised by the respondents about the petitioner being adopted son and not the real son of the deceased is not tenable. After
adoption the petitioner is engrafted in the family of the deceased, who was his adoptive father. Under Hindu Law he gets all the rights, privileges and
obligations of a son. Therefore, there is no difference between a real son and adopted son. Son would include adopted son if the adoption is valid. In
the present case the adoption is not challenged as being invalid or suffering from any lacunae. Therefore, the adoption of the petitioner, which is
evidenced by registered deed, cannot be said to be bad or against the provisions of Hindu Law. That being so, the petitioner is entitled to claim all the
benefits like a real son.â€
8. Per contra, learned Brief Holder would submit that the case of the petitioner for compassionate appointment has rightly been rejected by the
respondents as he is the adopted son and the adopted son does not fall within the ambit of the dependent of Government Servant.
9. Dying in Harness Rules are special set of rules, aimed to provide financial assistance by providing a suitable job to a dependent of a deceased
employee, who has given his flesh and blood while serving the department. The purpose behind these rules is to mitigate the hardship which has fallen
on the family of the deceased employee due to the death of the bread winner of the family. Rule 5 of the Dying in Harness Rules provides
compassionate appointment to a member of a family of the deceased employee. Rule 2 (c) is an inclusive definition, and defines a “family†to
include the following relations of the deceased Government servant (i) wife or husband; (ii) sons; (iii) unmarried and widowed daughters; (iv) if the
deceased was an unmarried Government servant, the brother, unmarried sister and widowed mother dependant on the deceased Government servant.
In the instant case, immediately after the death of the father, the petitioner being the only legal heir, besides his mother, applied for compassionate
appointment but his case was not considered for the reason that he is the adopted son of the deceased employee. Under the dying in harness rules,
son has been included in the definition of family. No distinction has been drawn between ‘real son’ and ‘adopted son’. Had there been
any intention of the legislature to exclude the adopted son, from the definition of family, as defined in the Dying in Harness Rules, it would have been
expressly excluded. As regards the rights of the adopted son, it is settled position in law that on adoption, the adoptee gets transplanted in the family in
which he is adopted with the same rights as that of a natural-born son. Under Hindu Law he gets all the rights, privileges and obligations of a son. Son
would include adopted son if the adoption is valid.
10. Indisputably, the petitioner is adopted son of the deceased employee. Copy of adoption deed dated 30.06.2004 is on record. From the perusal of
the same, it would transpire that the adoption deed was signed by the parties and was got registered in accordance with law. Furthermore, the
adoption deed has not been challenged by any one, as being invalid or suffering from any lacunae, therefore, the adoption deed which is a registered
deed, cannot be said to be bad or against the provisions of the Hindu Law. Insofar as the date of adoption of the petitioner is concerned, the contents
of the adoption deed would reveal that the petitioner was adopted by the deceased employee and his wife 20 years back, i.e. before the death of the
deceased employee. Thus, it is evidently clear that on the date of death of the deceased employee, the petitioner was legally adopted son of the
deceased employee. That being the position, this Court is of the considered view that the respondent has wrongly denied the claim of the petitioner for
compassionate appointment on the ground that he is the adopted son.
11. In view of the foregoing discussion, the writ petition is allowed. Impugned order dated 23.03.2010 is hereby quashed. The respondents are directed
to re-consider the case of the petitioner for appointment on compassionate grounds, in light of the observations made hereinabove, commensurate to
his qualification, in their department, within three months from the date of production of a certified copy of this judgment.
