Vijay Kumar Sah vs State of Bihar & Ors

Heard Learned Counsel for the Petitioner, Learned Counsel appearing for the State-Respondent No.1 and Learned Counsel appearing on behalf of the Respondent North Bihar Power Distribution Company Limited.

The present writ application has been filed by the petitioner for the following reliefs: -

Brief facts of the case, as emerging from the pleadings, are that the maternal grandfather of the petitioner was an employee of the North Bihar Power Distribution Company Limited.

After his death, the maternal grandmother of the petitioner, namely Late Reshma Devi, was appointed on compassionate ground on the post of Messenger in the Electric Supply Sub-Division, Begusarai. The petitioner was the fourth child of his biological parents but was residing with his maternal grandparents since his childhood.

After the death his maternal grandfather, the maternal grandmother of the petitioner, with the consent of the biological parents of the petitioner, took steps to adopt the petitioner as her son.

For facilitating the aforesaid, an affidavit duly attested by the Notary Public on 18.02.1999, was sworn by her (Annexure-1), wherein she undertook to adopt the petitioner.

An affidavit was also sworn by the petitioner himself vide Affidavit No.4585 of 1999 dated 22.07.1999 (Annexure-2), before the Notary Public, Begusarai, expressing his desire to live with his maternal grandmother till her lifetime and to serve, nourish, help and assist her, particularly during her old age and illness.

Subsequently, on 12.01.2001, a Registered Deed of Adoption (Annexure-3), was executed by the biological parents of the petitioner in favour of the maternal grandmother/adoptive mother of the petitioner.

The adoptive mother of the petitioner, while still in service, died in harness on 25.11.2007 (Annexure-4).

Thereafter, in January 2010, the petitioner approached the respondent-authorities for his appointment on compassionate ground as well as for payment of the death-cum-retirement benefits payable to his adoptive mother.

As per the instructions of the respondent-authorities, the petitioner filed Succession Case No.33/2010 before the court of competent jurisdiction, and a succession certificate was issued in his favour by the learned Sub-Judge-I, Begusarai, on 15.05.2013 (Annexure-5), which was duly submitted before the respondent-authorities.

On the basis of the application and the succession certificate so filed by the petitioner, an order dated 09.01.2016, was issued by the Executive Engineer (Electrical), Electric Supply Sub-Division, Begusarai (respondent no.6) vide letter No.52 (Annexure-6), whereby, while accepting the application for payment of the death-cum-retirement benefits of the adoptive mother to the petitioner, the respondent no.6 sought guidelines from the Superintending Engineer (Electrical), Electric Supply Circle, Samastipur (respondent no.7), regarding the applicable rule of compassionate appointment in the respondent company.

The petitioner was, thereafter, orally directed to produce a family members certificate of the deceased employee issued by competent authority.

The petitioner applied for the same and after due verification, a family members certificate of the deceased employee was issued by the Circle Officer, Barauni, vide Certificate No.19 dated 07.02.2017 (Annexure-7).

It was only at this stage that the petitioner was, for the first time, directed by the respondent-authorities to submit his application for compassionate appointment in a prescribed format.

Having no option left, the Petitioner submitted the application requesting for appointment on compassionate ground, in the said format on 18.03.2017 (Annexure-8), which was duly recommended and forwarded by the office head to the competent authority.

However, by letter No.624 dated 22.12.2017 (Annexure-9), issued by the respondent no.5, the application of the petitioner for compassionate appointment came to be rejected on the following three grounds: -

Being aggrieved by the aforesaid rejection order, the petitioner filed a representation dated 02.02.2018 (Annexure-11/11A), for reconsideration of his claim for compassionate appointment, which too came to be rejected vide letter dated 27.03.2018 (Annexure-12), on the ground that there was no fresh ground made out in the representation warranting reconsideration.

Learned counsel for the petitioner submits that the process of adoption of the petitioner by his maternal grandmother had, in fact, commenced much prior to the date of registration of the Deed of Adoption.

It was submitted that the affidavit sworn by the adoptive mother on 18.02.1999 (Annexure-1) and the affidavit sworn by the petitioner himself on 22.07.1999 (Annexure-2), both substantiate that the factum of adoption and the assumption of the character of mother and son had taken place between the parties well before the petitioner completed 15 years of age (the petitioner having been born on 01.03.1985), and that the Registered Deed of Adoption dated 12.01.2001, was only a subsequent formalisation/documentation of a relationship that already existed in fact.

It was further submitted that rejection of the succession certificate and the underlying adoption documents for the purpose of compassionate appointment, while the very same documents had earlier been accepted by the respondents for release of death-cum-retirement benefits of the deceased employee to the petitioner as her adopted son, amounts to two inconsistent stands being taken by the same authority qua the same set of documents, which is impermissible in law.

Learned counsel for the petitioner further submits that the delay, if any, in submission of the formal application in the prescribed format, was occasioned entirely by the respondents' own conduct, inasmuch as the petitioner had approached the department as early as January 2010, i.e., well within five years of the death of the deceased-employee on 25.11.2007, and was thereafter subjected to a series of successive and shifting demands by the respondents, first for a succession certificate, and thereafter, for the first time in 2017, for a family member certificate and a fresh application in a prescribed format that had never earlier been communicated to him.

Reliance in this regard was placed upon letter No.52 dated 09.01.2016 (Annexure-6) itself, issued by respondent no.6, which records the pendency of the petitioner's claim/application for compassionate appointment from a date much anterior to the rejection order dated 22.12.2017.

In support of the submission that a hyper-technical or rigid interpretation of the rules of compassionate appointment ought not to be permitted to defeat a bona fide claim of adoption, learned counsel for the petitioner placed reliance upon the decisions of this Court rendered in the case of Most. Shitali Devi and Anr. v. Union of India, C.W.J.C. No.7300 of 2001. The relevant extract from paragraph 4 is quoted hereunder:

The said decision assumes considerable significance in the facts of the present case, as the claim therein also arose in the context of compassionate appointment founded upon a relationship of adoption and foster parentage.

In paragraph 4 of the said judgment, the Division Bench took note of the social realities prevailing in the country and observed that, particularly amongst economically weaker sections of society, children are often adopted and brought up by foster parents without the rigours of a formal or registered document.

The Court cautioned against adopting a hard and fast or rigid interpretation of the applicable regulation where such an approach would defeat the very object of appointment on compassionate ground.

The Court observed that a rigid interpretation may provide a technical escape to the administration but may defeat the purpose of the scheme meant to provide relief to the family of an employee dying in harness.

At the same time, the Division Bench did not exclude scrutiny into the genuineness of such a claim. The Court made it clear that fraud, mischief or misrepresentation may certainly be inquired into; however, where the relationship of adoption and foster parentage is bona fide and is not manufactured merely for the purpose of defeating the applicable regulation or securing an undue benefit, such relationship ought to receive due consideration.

The aforesaid principle, in the considered opinion of this Court, is directly relevant to the given case at hand. The respondents have rejected the claim of the petitioner primarily by referring to the date of the registered deed of adoption, namely, 12.01.2001, and by holding that on the said date the petitioner had crossed the prescribed age under Section 10 of the Hindu Adoptions and Maintenance Act, 1956.

However, while doing so, the respondents have failed to consider the entire factual background and the materials relied upon by the petitioner, particularly the affidavit dated 18.02.1999 and the subsequent affidavit dated 22.07.1999, which, according to the petitioner, demonstrate that his relationship with Late Reshma Devi was not a relationship brought into existence for the first time by the registered document dated 12.01.2001.

Thus, the issue requiring consideration is not merely, whether the registered adoption deed was executed on 12.01.2001, but whether the materials available on record, when considered in its entirety, establishes a bona fide and pre-existing relationship of adoption and foster parentage between the petitioner and Late Reshma Devi.

In the light of the principle laid down by the Division Bench in Most. Shitali Devi case (supra), such an enquiry was necessary, particularly when the petitioner had relied upon documents preceding the registered adoption deed and other subsequent materials in support of his claim.

This Court is conscious that the judgment in Most. Shitali Devi (supra), does not lay down that every claim based upon adoption must automatically be accepted, nor does it dispense with the requirement of examining the genuineness of the relationship or the applicability of the relevant statutory provisions.

Nevertheless, the said judgment clearly holds that the humanitarian object underlying compassionate appointment cannot be defeated by adopting an unduly rigid or technical approach where the material on record discloses a genuine and bona fide relationship of adoption and foster parentage.

In the present case, the impugned order does not disclose any meaningful consideration as to whether the relationship claimed by the petitioner was genuine and bona fide or whether it had been manufactured merely for the purpose of obtaining compassionate appointment.

There is no finding that the affidavits relied upon by the petitioner or the other materials produced by him were fraudulent or fabricated. The respondents have, instead, proceeded substantially by treating the date of the registered adoption deed as the sole determinative factor.

In the considered opinion of this Court, such an approach is not in consonance with the principle enunciated by the Division Bench in Most. Shitali Devi (supra). Once the petitioner had placed materials on record suggesting a pre-existing relationship with Late Reshma Devi, the respondent authorities were required to examine the entire factual matrix and determine the genuineness and bona fides of the relationship, rather than rejecting the claim solely on the basis of a technical interpretation found upon the date of the registered document.

Consequently, the impugned decision suffers from non-consideration of relevant materials and from failure to examine the claim of the petitioner in its proper factual perspective. The rejection of the claim of the petitioner by adopting a rigid and isolated interpretation of the date of the registered adoption deed, without examining the bona fide pre-existing relationship of adoption and foster parentage, therefore, is untenable and, cannot be sustained.

Per Contra, Learned Counsel appearing on behalf of the respondent nos. 2 to 7, submits that the maternal grandfather of the petitioner was an employee of the erstwhile Bihar State Electricity Board, and after his death, the maternal grandmother of the petitioner, namely Reshma Devi, was appointed on compassionate ground on the post of Messenger, Electric Supply Sub-Division, Begusarai, and she died during her service period on 25.11.2007.

The petitioner, thereafter, approached the office of the Executive Engineer (Electrical), Electric Supply Division, Begusarai, representing himself as the maternal grandson of the deceased, for payment of dues after her death. Consequently, the Petitioner was advised on his application dated 24.06.2010, to obtain a succession certificate, and the requisite information was furnished to him vide letter No.950 dated 28.07.2010.

It is further submitted by the counsel for the respondents that, the succession certificate was issued to the Petitioner, in Succession Case No.33/2010, by the court of the learned Sub-Judge-I, Begusarai, and it only empowered the petitioner to collect the amount of GSS, Leave Encashment, GPF and Gratuity relating to Late Reshma Devi, on the basis of which the same was disbursed in favour of the petitioner.

It is contended that the said certificate did not, and could not, confer entitlement for compassionate appointment. After considering the application of the petitioner for appointment on compassionate ground, the same was rightly rejected with a reasoned order containing reasons of rejection, and communication of the same was made to the petitioner vide letter No.624 dated 22.12.2017.

It is further contended on behalf of the respondents that as per the Standing Order No.756 dated 18.02.1994, of the erstwhile Bihar State Electricity Board, applications for compassionate appointment were to be considered only where the application had been received from the dependant within 5 years of the death of the deceased employee; whereas, in the present case, the application for compassionate appointment was submitted almost after 9 years of the death of Late Reshma Devi.

It is also submitted that the claim of the petitioner having already been considered and rejected vide letter No.624 dated 22.12.2017, and there being no fresh ground being made out in the representation dated 09.01.2018/02.02.2018, there lies no scope for reconsideration.

As a result, the petitioner was accordingly intimated vide letter No.43 dated 17.01.2018, that his representation did not disclose any ground for reconsideration, resulting into the claim being rejected again vide letter No.179 dated 27.03.2018.

By way of a subsequent supplementary affidavit filed on behalf of the petitioner, it has been stated that the petitioner continues to be in need of a regular source of livelihood and that he has no permanent source of income.

The petitioner continues to earn his livelihood by doing daily-wage work, which is not available to him on a regular basis. Furthermore, a certificate to this effect issued by the Mukhiya of the concerned Gram Panchayat and has been annexed as Annexure-13 to the supplementary affidavit.

Having heard learned counsel for the parties and having perused the materials on record, the principal issue that falls for consideration before this Court is “Whether the rejection of the petitioner's claim for compassionate appointment, as the legally adopted son of Late Reshma Devi, an employee who died in harness, on the grounds of

At this juncture, it is relevant to quote Section 10 of the Hindu Adoption and Maintenance Act, 1956, and the same is enunciated hereunder:

It is well settled that under the Hindu law, the factum of adoption is completed by the actual giving and taking of the child in adoption, ordinarily accompanied by the customary ceremony, and a registered instrument of adoption executed subsequently is not, by itself, the moment of adoption but is only a mode of recording/evidencing an adoption that has already taken place, raising, a presumption under section 16 of the Act, that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved.

In the present case, the record discloses that the maternal grandmother of the petitioner had, as early as 18.02.1999, sworn an affidavit before the Notary Public, undertaking to have adopted the petitioner as her son (Annexure-1 to the writ petition), and the petitioner himself, on 22.07.1999, swore a corresponding affidavit accepting the said relationship and undertaking to serve and maintain his adoptive mother (Annexure-2 to the writ petition).

The petitioner having been born on 01.03.1985, and, as on 18.02.1999 and 22.07.1999, he was aged about 13 years 11 months and 14 years 4 months respectively, which is, admittedly below the age of 15 years, as prescribed under Section 10(iv) of the Act.

The Registered Deed of Adoption dated 12.01.2001 (Annexure-3 to the writ petition), upon which alone the respondents have proceeded to compute the petitioner's age for the purpose of Section 10(iv), was thus only a subsequent registration of a relationship of adoption, which upon perusing the material on record, had already come into being between the parties nearly two years earlier. Thus being, well within the age prescribed by law.

This Court is, therefore, of the considered view that the respondent-authorities have committed error in mechanically computing the petitioner's age solely with reference to the date of the Registered Deed of Adoption dated 12.01.2001, without adverting to the affidavits of 1999, which forms the part of the very same set of adoption-documents, relied upon by the petitioner and which were annexed to, and formed the basis of, the application considered by the respondents themselves.

Applying the principle enunciated by this Court in Most. Shitali Devi and Anr. vs. Union of India (C.W.J.C. No.7300 of 2001), it is settled that a bona fide relationship of adoption, not shown to be manufactured or engineered to defeat the regulation, ought ordinarily to be accepted, and that a rigid or hyper-technical construction of the regulation should not be permitted to defeat the very purpose of the beneficial rule of compassionate appointment.

This Court finds that the rejection of the petitioner's claim on the sole ground of violation of Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956, is not sustainable in the facts of the present case. In light of the same, this quote finds it expedient to quote the findings as formulated in case of Most. Shitali Devi (supra), which is expressed in the following terms:

So far as the ground of delay is concerned, it is significant to notice that the petitioner had approached the respondent-authorities as early as in January 2010, i.e., well within the period of five years from the date of death of the deceased-employee on 25.11.2007, both for compassionate appointment and for payment of death-cum-retirement benefits.

It was the respondents themselves who directed the petitioner, from time to time, first to obtain a succession certificate, then to produce a family member certificate, and it was only in March 2017, that for the first time the Petitioner was directed to file a fresh application for compassionate appointment in a prescribed format, before the respondent authorities. The very letter No.52 dated 09.01.2016 (Annexure-6 to the writ petition), issued by respondent no.6, itself proceeds on the premise that an application/request for compassionate appointment of the petitioner was already under consideration well prior to 2016.

In these circumstances, this Court is of the view that the delay in submission of the application in the prescribed format cannot be attributed to any delay or laches on the part of the petitioner, rather, it was occasioned entirely by the shifting and successive demands made by the respondent-authorities themselves.

It is a settled principle that a claimant cannot be made to suffer for the delay caused by the very authority before whom the claim is pending. The rejection of the petitioner's claim on the ground of delay under Standing Order No.756 dated 18.02.1994 is, therefore, equally unsustainable.

Insofar as, the third ground of rejection, is concerned, which is that the succession certificate issued in Succession Case No.33/2010 empowered the petitioner only to receive the GSS, GPF, Gratuity and Leave Encashment of the deceased-employee and did not authorise him for compassionate appointment, this Court finds considerable substance in the submission of learned counsel for the petitioner that the respondents cannot be permitted to approbate and reprobate on the very same set of documents.

The self-same succession certificate, together with the adoption documents of the petitioner, was accepted by the respondents for the purpose of releasing the death-cum-retirement benefits of Late Reshma Devi in favour of the petitioner as her adopted son/dependent (Annexure-6 to the writ petition). Having accepted the relationship of adoption for one purpose flowing from the death of the employee in harness, it is not open to the very same authority to disown the self-same relationship while considering the claim for compassionate appointment, which is equally a benefit flowing from the death of the employee in harness.

Two inconsistent stands cannot be taken by the respondents while considering the very same set of documents to determine the very same relationship.

The whole idea behind the object of compassionate appointment is to grant appointment on compassionate grounds to a dependent family member of a government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.

In view of the aforesaid backdrop, this Court is of the considered opinion that the order dated 22.12.2017 (Annexure-9 to the writ petition), passed by the respondent no.5 vide letter No.624, and the consequential order dated 27.03.2018 (Annexure-12 to the writ petition), rejecting the representation of the petitioner, are unsustainable in law and are accordingly quashed.

The respondents are directed to reconsider the claim of the petitioner for compassionate appointment, treating him as the legally adopted son and dependant of Late Reshma Devi, in light of the observations made hereinabove, without insisting upon the technical objections which stands negated by this court. Such exercise shall be completed by the respondents by way of a reasoned and speaking order, within a period of three months from the date of receipt/production of a copy of this judgment.

The writ application is allowed to the extent indicated hereinabove.

There shall be no order as to costs.