Sharawan Kumar @ Shrawan Kumar Singh v. The State Of Bihar

Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 adoption, the court shall have to presume the adoption has been made compliance with the provisions of the Act.”

Learned counsel for the petitioner while assailing the impugned order dated 23.3.2012 has submitted that the District Compassionate Appointment Committee has committed an error in rejecting the case of the petitioner for appointment on compassionate ground. In regard, he has basically concentrated on the aspect that once there was a registered Deed of Adoption, the authorities had no jurisdiction to doubt the correctness of the same and reject the case of the petitioner for appointment on compassionate ground by holding that the petitioner was not entitled to be appointed as an adopted son of late Mahendra Singh.

Learned counsel for the State, on the other hand, has submitted that the petitioner was not entitled for appointment on compassionate ground both on account of the detection of an apparent illegality in the claim of his being adopted son of the deceased employee, namely Late Mahendra Singh as also variance of his date of birth as disclosed in the School Leaving Certificate vis-à-vis the one which was shown in the registered Deed of Adoption. He has, accordingly, supported the findings recorded by the District Compassionate Appointment Committee Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 while rejecting the case of the petitioner.

The fact giving rise to the present writ application in fact lies in a very narrow compass. The petitioner claims that he was adopted by late Mahendra Singh in the year 2002 and a registered Deed of Adoption was executed for this purpose on

1.7.2002 before Sub-Registrar, Nalanda at Biharshariff. According to the petitioner, late Mahendra Singh after adopting him on

1.7.2002 had died in harness on 18.1.2007 while working on Class-4 post (Janjir Wahak) the office of the Block Development Officer, Ekangarsarai. The petitioner, thereafter, had filed his application on 25.4.2008 seeking appointment on compassionate ground on the ground of his being adopted son of Late Mahendra Singh. The said application, thereafter, was not processed for a long time and therefore the petitioner had moved this Court for an appropriate direction to the Respondents in CWJC No. 20014 of 2011 and this Court by its order dated

12.12.2011 had directed the respondents to consider the case of the petitioner within a period of six months. It was only thereafter that the impugned order was passed by the District Compassionate Appointment Committee in the light of the recommendation made by the Establishment Deputy Collector, Nalanda, wherein, the case of the petitioner was rejected by holding that the alleged story of Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 adoption of the petitioner was both factually incorrect and legally impermissible inasmuch as the Committee had given the following reasons for rejecting the case of the petitioner:- ^^lh0 MCyw0ts0lh0 ua0 20014@2011 esa ekuuh; mPp U;k;ky; iVuk }kjk fnukad 12-12-11 dks ikfjr vkns” k ds vuqikyu esa vkosnd Jo.k dqekj mQZ Jo.k dqekj flag ds nrd iq= gksus dh oS/kkfud dh tkap fnukad 05-03-12 dks LFkkiuk mi lekgrkZ ukyank }kjk dh xbZA LFkkiuk mi lekgrkZ ukyank }kjk tkp izfrosnu i=kad 06@eq0@LFkk0 fnukad 12-3-12 ds }kjk lefiZr dh xbZA izfrosnu esa mYys[k fd;k x;k gS fd Jh

kadj mPp fo|ky; fifyp ukyank }kjk fuxZr fo|ky; ifjR;kx izek.k i= esa vkosnd Jo.k dqekj dh tUe frfFk 06-12-1982 vafdr gSA bl izdkj Jo.k dqekj ds xksnukek nLrkost dh frfFk 01-07-2002 dks Jp.k dqekj dk mez 19 o’kZ 06 ekg 26 FkhA tks The Hindu Adoption and Maintenance Act, 1956 dh /kkjk 10(iv) esa fo.kZr 15 o’kZ ls vf/kd gSA ,slk izfrr gksrk gS fd vkosnd Jo.k dqekj }kjk vuqdEik ds vk/kkj ij fu; qfDr dk ykHk ysus ds mns

; ls viuh okLrfod mez fNik dj fuca/khr nLrkost rS;kj djk x;k gS vr,o mijksDr of.kZr ifjis{; esa vuqdEik lfefr }kjk vkosnd ds vkosnu xgu :i ls fopkj fd;k x;k ,oa loZ lEefr ls fu.kZ; fy;k x;k fd vkosnd Jo.k dqekj dks lo0 egsUnz dqekj flag ds vkfJr nrd iq= ds vk/kkj ij vuqdei fu; qfDr dk ykHk nsuk fof/k lEer ugha gSA vr,o vkosnd Jo.k dqekj mQZ Jo.k dqekj flag ds vuqdEik ds vk/kkj ij fu; qfDr laca/kh vkosnu dks [kkfjt fd;k tkrk gSA**

This Court has firstly gone into the application filed by the petitioner seeking his appointment on compassionate ground wherein he had disclosed his date of birth Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 as 6.12.1982. Thus if his date of birth of 6.12.1982 is believed to be correct inasmuch as, the petitioner is a non-matric, it would be found that on the date of his adoption i.e. 1.7.2002, he was aged about 19 years 6 months and 26 days. This date of birth was however duly supported by the petitioner himself by a School Leaving Certificate of Sankar High School, Pilich, Nalanda wherein also, his date of birth was shown to be 6.12.1982. Thus on the basis of the facts placed by the petitioner himself in his supporting documents for his appointment on compassionate appointment first one being his own school leaving certificate and other the registered deed of adoption if is beyond doubt that on

1.7.2002, when the petitioner was allegedly adopted by Mr. Singh, he was aged about 19 years 6 months and 26 days.

It is here that his story of adoption the main basis for his appointment on compassionate ground becomes shaky inasmuch as Section 10 of the Hindu Adoption and Maintenance Act, 1956 lays down the persons who may be adopted which reads as follows:-

Section-10. Persons who may be adopted – No person shall be capable of being taken in adoption unless the He or she is a Hindu; following conditions are fulfilled, namely- (i) (ii) He or She has not already been adopted; (iii) He or She has not been married, unless there is a Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 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 in adoption.

Thus, the petitioner cannot claim that his adoption as on 1.7.2002 to be valid in the eye of law since he was aged about 19 years 6 months and 26 days and thus impermissible under Hindu Adoption and Maintenance Act. That alone infact will not be the end of the matter inasmuch as the registered Deed of Adoption dated 1.7.2002 also goes to show that the petitioner was minor and his age was shown to be 12 years. Therefore, it becomes clear that whatever was stated in the Deed of Adoption was contrary to the official records and the date of birth of the petitioner as recorded in the School Leaving Certificate and in the Admission Register. If the Deed of Adoption showing the age of the petitioner of 12 years is correct, the date of birth disclosed by the petitioner himself in his application becomes questionable. Since, the petitioner has filed his application for appointment on compassionate ground on 25.4.2008 by projecting that he was a major in view of his date of birth recorded in the School Leaving Certificate as 6.12.1982 and was aged about 26 years on the date Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 of application, he cannot be allowed to question his own date of birth on the basis of 12 years of age shown in the Deed of Adoption.

It has to be noted that this aspect of the matter was also gone into by this Court when the petitioner had earlier filed his writ application, CWJC No. 20014 of 2011, inasmuch as, when the counsel for the petitioner had relied on the registered Deed of Adoption without producing the copy thereof, this Court in its order dated 12.12.2011 had observed as follows:- “adoption is basically a question of fact. It is for the respondent to satisfy themselves of the validity and legality of the adoption and then consider any claim for compassionate appointment in accordance with law.”

In view of the above, the respondents have committed no error in holding an enquiry and by examining various documents including School Leaving Certificate of the petitioner as also the Deed of Adoption for coming to a finding that the claim of the petitioner based on his deed of adoption was invalid in terms of Section 10 of the Hindu Adoption and Maintenance Act on account of his actually being aged about 19 years and 6 months as per his school leaving certificate.

It is true that Section 16 of the Act lays down with regard to the presumption as to registered documents relating Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 to adoption being valid and very clearly says that the same is only subject to its being disproved. In this regard it would be also useful to quote Section 16 of the Hindu Adoption and Maintenance Act reads as follows:-

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 is disproved.

In the present case however when the authorities have gone into the aspect that the petitioner was aged about 19 years and 6 months on the date of adoption, they have also examined the averment made in the Deed of Adoption where the age of the petitioner has been shown to be only 12 years and thus, no error can be said to have committed by them in disbelieving the story of adoption on the basis of the age declared by the petitioner himself in the application seeking appointment on compassionate ground where he had given the date of birth as 6.12.1982 and had also supported the same by producing his School Leaving Certificate.

In that view of the matter, when the story of Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 adoption of the petitioner was itself based on an incorrect statement regarding age of the petitioner wherein as on 1.7.2002, he was declared to be only a minor of 12 years of age, the authorities had all the reason to doubt the genuineness of such registered deed of adoption. The presumption of the registered Deed of Adoption to be valid is always a rebuttable presumption and when this Court in the order dated 12.12.2011 had itself directed the authorities to look and examine in the claim of adoption of the petitioner, the impugned order cannot be faulted on the ground that the authorities had exceeded its power in questioning the registered Deed of Adoption.

Learned counsel for the petitioner had then tried to project that even in terms of Section 10, an adoption of a child above 15 years was permissible, inasmuch as, the same was subject to the prevalent usage and customs of the parties. First of all, if the petitioner wanted to rely on the Deed of Adoption by accepting his age of 19 years 6 months on the date of adoption, he had to obtain a decree from the Civil Court with regard to validity of his age of adoption.

Secondly, it has to be also kept in mind that the petitioner as per the Deed of Adoption is non-else but own nephew of the adoptive father, the deceased employee. The natural father Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 of the petitioner was one Yogendra Singh, own brother of the adoptive father Late Mahendra Singh, the deceased employee. In the Deed of Adoption dated 1.7.2002, it was clearly mentioned that the petitioner was aged about 12 years as on 1.7.2002 and he was being given in adoption by their natural parents to Mahendra Singh. Thus, if the petitioner or for that purpose any one else ever would seek a declaration in the court of law for adoption to be valid and legal, the age of the petitioner will have to be essentially proved because in the Deed of Adoption dated 1.7.2002, his age is 12 years only and, therefore, there would be no question of adducing any evidence of any existence of usage and customs of adoption being made even after the age of fifteen years.

Thus, it is the own two conflicting documents of the petitioner, one relating to his age in the School Leaving Certificate produced by him and the other, the Deed of Adoption giving the age of 12 years only as on 1.7.2002 which are by themselves sufficient to demolish the case of the petitioner of his being adopted son of Mahendra Singh.

In this regard, this Court cannot shut its eye that even before this Court, the petitioner in support of facts stated in the writ petition has sworn an affidavit that as on 13.2.2013, he was aged about 30 years which would mean that his date of birth Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013 was somewhere in the year 1983 which would be closer to his date of birth of 6.12.1982 as recorded in the School Leaving Certificate. Had the petitioner disclosed his date of birth as given in the Deed of Adoption which was only 12 years as on 1.7.2002, his age in the affidavit portion of this writ application had to be only 22 to 23 years and not 30 years.

Thus, this Court will have no difficulty in holding that the petitioner’s date of birth being 6.12.1982 as given by him in the application seeking appointment on compassionate ground which is also supported from the School Leaving Certificate as duly verified in course of enquiry by the Deputy Collector (Establishment) would automatically to an unassailable situation that the petitioner was aged 19 years and 6 months on the date of adoption which is impermissible in view of Section 10 of the Hindu Adoption and Maintenance Act and thus demolishing the claim of the petitioner being and adopted son of the deceased employee.

Based on all these considerations, this Court does not find any error in the impugned order rejecting the case of the petitioner for appointment on compassionate ground.

That being so, this application is devoid of any merit and is, accordingly, dismissed. Patna High Court CWJC No.4721 of 2013 (2) dt.19-03-2013

Before parting with it is however made clear that nothing said in this order will come in the way of the petitioner in seeking a declaration from the Civil Court that his Deed of Adoption dated 1.7.1982 is valid and legal and on the basis of the same he is entitled for being appointed on compassionate ground as an adopted son of Late Mahendra Singh but then while doing so, he will have to necessarily implead the respondents of this writ application as defendants for justifying their stand of disbelieving the Deed of Adoption on account of the obvious discrepancy in the age mentioned in the Deed of Adoption vis-à-vis in his application seeking compassionate appointment based on his own School Leaving Certificate. (Mihir Kumar Jha, J) Patna High Court Dated the 19th March 2013 A.F.R./Rishi/-