BRIJESH KUMAR Vs. STATE OF UTTARANCHAL
LAWS(UTN)-2013-5-54
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on May 08,2013

BRIJESH KUMAR Appellant
VERSUS
STATE OF UTTARANCHAL Respondents

JUDGEMENT

- (1.) The petitioner claims to be the adopted son of late Smt. Sukh Devi (who was an Assistant Teacher in a primary school and died while in harness). The petitioner before this Court was appointed as Assistant Teacher on compassionate ground in a government primary school by the District Basic Education Officer, Haridwar vide order dated 18.9.1991 (annexed as Annexure No.1 to the writ petition) on the pay-scale of Rs. 850/-. In the said appointment letter, the educational qualification of the petitioner has been mentioned as intermediate (i.e. Class XII). Subsequently, vide order dated 24.3.1992 the petitioner was first suspended and thereafter his services were terminated by the District Basic Education Officer, Haridwar on the ground that the petitioner is not a dependant of late Smt. Sukh Devi, as evidently the appointment of the petitioner was made on compassionate ground under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as "Dying in Harness Rules"). This order dated 24.3.1992 was challenged by the petitioner before the Hon'ble Allahabad High Court in writ petition no. 15324 of 1993. Subsequently, after creation of new State of Uttarakhand, the matter stood transferred to this Court under Section 35 of the Uttar Pradesh Reorganisation Act, 2000 and renumbered as Writ Petition (S/S) No. 5411 of 2001, which was disposed of by a learned Single Judge of this Court on 2.3.2006. From the order dated 2.3.2006, it appears that the sole grievance raised by the petitioner before this Court was that since he was appointed on compassionate ground under the Dying in Harness Rules and such appointment is permanent in nature, the petitioner being appointed on a substantive post in a permanent capacity his services were not liable to be terminated in the manner they were ultimately terminated vide order dated 24.3.1992. The order does not indicate whether the petitioner himself was claiming to be the adopted son of late Smt. Sukh Devi and it is for this reason he was not found under the definition of "family" and his claim was rejected.
(2.) Be that as it may, the petitioner armed with the order of learned Single Judge of this Court dated 2.3.2006 again agitated his claim before the concerned authority. This time, the matter was heard by the Additional District Education Officer (Basic), Haridwar, who gave the entire background of the case and came to the conclusion that in the adoption deed, there is an overwriting as to the date 11.10.1976 and on a query of this Court as to what the date 11.10.1976 indicates, learned counsel for the petitioner Mr. Lok Pal Singh asserted that this is the date of birth of the petitioner.
(3.) There is also a succession certificate given by the Civil Judge, Roorkee on 23.5.1991 in favour of the petitioner. The said succession certificate was subsequently filed by the petitioner by means of a supplementary affidavit on 28.8.2012, to which a reply has also been given by the respondent which is also on record. In the succession certificate procured by the petitioner after the death of Smt. Sukh Devi the name of the petitioner is mentioned as nephew of late Smt. Sukh Devi wife of late Sri Chandrabhan, but the petitioner's father name is mentioned as Sri Mahavir Singh, who is the biological father of the petitioner. Even in succession certificate there was no claim, however, on the basis of the son or adopted son, as is presently being claimed by the petitioner. Moreover, after the amendment in Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the "Act") in order to become a valid adoption deed, it must be a registered adoption deed. The amendment made in the State of Uttar Pradesh, which is presently applicable in the State of Uttarakhand, reads as under: "16. Presumption as to registered documents relating to adoption.- (1) (2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force: Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872.";


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