Petitioner challenged dismissal of salary claim based on appointment on compassionate ground. Court held adoption invalid under Hindu Adoption Act and salary claim unsupported due to misrepresentation regarding relationship.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18896 of 2012
====================================================== Sanjay Kumar, S/O Late Raj Kumari Devi, Resident of village - Ahiyari, P.S. - Kamtant, District - Darbhanga at present Assistant Teacher, Middle School, Kewati Balak Maghigama, Kewati, Darbhanga .... .... Petitioner/s Versus 1. The State of Bihar 2. The Director, Primary and Secondary Education, Bihar, Patna 3. The District Superintendent of Education Officer, Darbhanga 4. The District Programme Officer (Estt.), Darbhanga
.... .... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. Amit Kumar Anand, Advocate. For the Respondent/s : Mr. Anis Akhtar, A.C. to GA 3 For the Intervenor : Mr. Prashant Kumar, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER
4 28-10-2013 Heard learned counsel for the parties.
“-------- 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 about the same and further for issuance of a consequential writ in 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.”
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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 the original records relating to recommendation/appointment of the petitioner on compassionate ground.”
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adopted her own step grand son as the adopted son.
Section 10: Persons who may be adopted.- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-
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(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.
Section 11: Other conditions for a valid adoption.- In every adoption, the following conditions must be complied with:(i) 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’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [ or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:
Provided that the performance of data homam shall not be essential to the validity of an adoption.
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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.
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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.
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Mr. Sanjay Kumar Thakur, stating that this person has filed a criminal case against the petitioner for obtaining the appointment by committing forgery.
(Mihir Kumar Jha, J)
Sujit/-
3 issues framed by the court
Whether a step grandmother can validly adopt her own step grandson under Section 11(i) of the Hindu Adoption and Maintenance Act.
Whether a petitioner contemplating filing a suit for declaration of adoption can claim salary arrears before the result is known.
Whether a grand son qualifies for compassionate appointment under Government circular dated 05.10.1991.
Colour shows how this judgement treated each authority
Diyyala Gopala Krishna Murthy v. Pullagura Dhanalakshamma & Ors.Distinguished¶8
Diyyala Gopala Krishna Murthy v. Pullagura Dhanalakshamma & Ors.; {(2010) 15 SCC 125} · Who else cites this
Sanjay Kumar
The State of Bihar
The Director, Primary and Secondary Education, Bihar
The District Superintendent of Education Officer
The District Programme Officer
Mihir Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
