Sanjay Kumar v. The Director, Primary and Secondary Education, Bihar, Patna & Ors

Heard learned counsel for the parties.

The prayer of the petitioner in this writ application reads as follows:

-------- for quashing of letter no. 560 dated 18.02.2012, whereby and whereunder the salary of the petitioner has been ordered to be stopped in view of a complaint and an inquiry though petitioner has not been communicated further issuance of a consequential writ the nature of mandamus commanding and directing the respondent authorities to pay the salary of the petitioner, both current as well as arrears of salary.

the same and

Before this Court would delve into the relevance of the aforementioned relief, it would be necessary to record here that when the matter was heard last on 11.09.2013, this Court, considering the zone of dispute regarding the claim of the petitioner of being adopted son of Raj Kumari Devi, had directed 2 Patna High Court CWJC No.18896 of 2012 (4) dt.28-10-2013 the petitioner to file a supplementary affidavit by passing the following order:

Learned counsel for the petitioner prays for and is allowed four weeks’ time to bring on record any other document to show that he was validly adopted by Raj Kumari Devi, his own grand-mother. The petitioner must give the entire genealogy of his original family and the family of Rajeshwar Thakur as also must indicate as to whether if there be only on unregistered deed of his adoption, whether he is prepared to get his adoption declared legal and valid in terms of Section 16 of the Hindu Adoption and Maintenance Act. It is, however, made clear that the petitioner may file any further affidavit to justify his appointment on compassionate ground on the basis of his being adopted by his own step grand-mother which primafacie appears to be prohibited under Section 11 of the Hindu Adoption and Maintenance Act. The petitioner, therefore, must clearly state on affidavit as to whether he would like to await the result of the suit that he will file for declaration of his adoption valid and legal or would be prepared to refund the entire amount of salary drawn by him in case his adoption is found to be invalid in law. In the meantime, the Collector and the District Programme Officer, Darbhanga are hereby directed to produce relating recommendation/appointment of the petitioner on compassionate ground.

original records

Today, a supplementary affidavit has been filed on behalf of the petitioner in which by giving genealogical table, it has been explained that one Rajeshwar Thakur had three wives, out of whom Jiwachhi Devi and Raj Kumari Devi were surviving till the death of Rajeshwar Thakur. Jiwachhi Devi, from her marriage with Rajeshwar Thakur, had two issues namely Tejendra Thakur and Shail Kumari whereas Raj Kumari Devi had no issue from Rajeshwar Thakur. The petitioner in fact is the step son of Raj Kumari Devi inasmuch as he is the grand son of Jiwachhi Devi. The claim of the petitioner is that it is her own step grand mother Raj Kumari Devi, who after the death of her husband, had 3 Patna High Court CWJC No.18896 of 2012 (4) dt.28-10-2013 adopted her own step grand son as the adopted son.

First of all, even if the requirement of consent of father under Section 8 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘the Act’) is waived on account of death of Rajeshwar Thakur, there is still no registered deed of document of adoption so as to create presumption of such adoption as required in Section 17 of the Act. Adoption being a matter of fact could have only established by the petitioner either by a decree of Civil Court or at least by a registered deed of adoption. From the records, which has been produced today by the learned counsel for the State, it would absolutely clear that the petitioner had produced neither of them while claiming appointment on compassionate ground. Thus, the petitioner’s claim of being adopted son had remained unsupported and thus invalid. Even today, in the supplementary affidavit filed, no documentary evidence has been brought on record which can establish the fact that Raj Kumari Devi, the deceased employee, had adopted the petitioner has her son.

Normally, this Court could have, therefore, allowed the petitioner to seek a declaration from the Civil Court, but then when he himself by filing a supplementary affidavit, has admitted the fact that he is the step grand son of Raj Kumari Devi, there would be no difficulty in holding that such claim of adoption however otherwise would not stand scrutiny of Section 11 of the Act which clearly prohibits adoption of a son who actually is the grand son. The law in fact does not make any distinction between the natural son or step son as would be apparent from Section 10 read with Section 11 which read as follows: Section 10: Persons who may be adopted.- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- 4 Patna High Court CWJC No.18896 of 2012 (4) dt.28-10-2013 (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (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.

From a bare reading of Section 11(i) it would become clear that if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption. There are other 5 Patna High Court CWJC No.18896 of 2012 (4) dt.28-10-2013 requirements under section 11, all of which if cumulatively taken into account, would go to show that it was not possible for Raj Kumari Devi, the employee concerned to adopt her own step grand son as her own son. In that view of the matter, the claim of the petitioner of being adopted son of the employee concerned can not make any headway and therefore is also not capable of decreed by the Civil Court.

The reliance placed by the learned counsel for the petitioner on the judgment of the Hon’ble Supreme Court in the case of Diyyala Gopala Krishna Murthy v. Pullagura Dhanalakshamma & Ors.; {(2010) 15 SCC 125} is also wholly misplaced inasmuch as there is no parallel in law that an adopted son is at par with natural son. In fact, in the aforementioned judgment, the Hon’ble Apex Court has only clarified that where a natural son may have a restriction of prohibited degrees of relationship for the purposes of marriage only on one side, the adopted son will have such restriction on both sides namely, his natural family as well as his adopted family. This Court fails to understand as to how this proposition of law could be made applicable in the present case where the issue in fact is as to whether a step grand mother can adopt her own step grand son as her own son and the only answer to the same has to be in negative.

This Court has viewed the matter from yet another angle inasmuch as in the category of dependants as laid down under the Government circular dated 05.10.1991, it does not include the grand son eligible for appointment on compassionate ground. Thus the alternative case of the petitioner of being the grand son of the employee concerned will also be of no avail because under the Government policy only four categories of 6 Patna High Court CWJC No.18896 of 2012 (4) dt.28-10-2013 dependants are entitled for being appointed on compassionate ground, namely, the wife or the husband, son, daughter and wife of the pre-deceased son. The petitioner claiming to be the step grand son, thus, is also not covered under the Government Policy of compassionate appointment.

The records which have been produced by the learned counsel for the State would only go to show that the petitioner had himself projected to be the son without disclosing anywhere to be an adopted son of Raj Kumari Devi. Additionally, the certificate given by the two colleagues of Raj Kumari Devi, as required under the Government policy, also did not go to show that the petitioner was actually an adopted son of Raj Kumari Devi inasmuch as both of them have also disagreed the petitioner to be adopted son of Raj Kumari Devi. The plea of the petitioner that there was an adoption on 11.03.1985 as per unregistered document executed on 21.01.1986, therefore, it would be required to be established by the petitioner, but till it is shown that he is either the natural son or the adopted son of Raj Kumari Devi, he cannot claim at least the benefit of payment of salary on the basis of appointment obtained by him.

In that view of the matter, this Court does not find any error in the impugned order rejecting the prayer of the petitioner for payment of salary inasmuch as from the same, it would transpire that the departmental proceeding for the same charge against the petitioner alleging misconduct for obtaining appointment by misrepresenting himself as the son of the deceased employee, Raj Kumari Devi, is pending final consideration.

At this stage, Mr. Prashant Kumar, an advocate of this Court, seeks leave to file intervention application on behalf of 7 Patna High Court CWJC No.18896 of 2012 (4) dt.28-10-2013 Mr. Sanjay Kumar Thakur, stating that this person has filed a criminal case against the petitioner for obtaining the appointment by committing forgery.

Having regard to the limited scope of this writ application wherein the petitioner has prayed for his payment of his salary on the basis of his appointment on compassionate ground by an order dated 31.12.1996 and is continuing in service, this Court would not like to say anything in this regard and would leave the petitioner to his own fate for either facing the departmental proceeding or the criminal proceeding and/or for also taking any recourse which may be available to him in law.

With the aforesaid observation, this application is