MADAN, J. - (1.) THIS petition has been filed before this court under Art. 226 of the Constitution of India in the matter of alleged violation of Arts. 14 & 16 of the Constitution of India read with Rajasthan (Recruitment of Dependents of Government Servants Dying While in Service) Rules, 1975 and in the matter of Rajasthan Service Rules, 1951 (hereinafter referred to as 'the Rules' ).
(2.) THE facts giving rise to the filing of this writ petition briefly stated are that the petitioner is an adopted son of (Late) Shri Ram Niwas Sharma who expired on 13. 12. 1972 during his service tenure after remaining ill for a long period. THE said Shri Ram Niwas Sharma was posted at Tehsil Sikrai as Class IV employee before his demise. He was appointed on the said post on 14. 6. 1943 and his date of birth was 12. 06. 1918. It has been further contended in the writ petition that the natural father of the petitioner was Shri Hajari Lal Sharma S/o (Late) Shri Ram Dhan Sharma who expired on 9. 5. 1962. Late Shri Ram Dhan Sharma was the elder brother of (Late) Shri Ram Niwas Sharma who was unmarried. It was further contended in the petition that the petitioner was living with him and was wholly dependent on him for his day today expenses, residence and education after the demise of his natural father and that the petitioner looked after the welfare of Shri Ram Niwas and that he had executed a will in favour of the petitioner on 13. 10. 1970 which was registered in the office of Sub-Registrar Sikrai vide Annexure-1. From the recitals of the will, it is explicitly clear that the petitioner shall be entitled to receive the amount of pension, gratuity and insurance etc. being the legal heir of the deceased. It is further contended on behalf of the petitioner that the petitioner has already received the amount due on account of insurance on the policy having matured after the demise of Shri Ram Niwas being the nominee of the deceased. It has been further contended that (Late) Shri Ram Niwas had no issue being unmarried and after executing the will during his life time he had lawfully adopted the petitioner after performing the necessary ceremonies required for adoption with the consent of the widowed natural mother of the petitioner in the presence of the relatives and several other persons of the caste according to the Hindu rites and customs and in accordance with the entire procedure of "data Homam" etc. After giving the petitioner in adoption to Shri Ram Niwas Sharma the petitioner's mother expired on 27. 4. 1973. It has been further contended that the petitioner's mother did not have any source of income to support her till her demise since her husband had pre deceased her. In support of the contentions advanced by the petitioner in the petition, the petitioner has also placed on the record of this court an affidavit of Shri Mool Chand, a neighbour and Shri Heera Lal nephew of Late Shri Ram Niwas Sharma who were present at the time of adoption ceremonies and they have deposed to the effect in their affidavits that a valid and proper adoption of the petitioner by Shri Ram Niwas had taken place in their presence vide Annexure 2 & 3 respectively. By way of abundant caution, the petitioner has placed on the record a copy of the application which was moved by the deceased Ram Niwas Sharma for transferring the amount due to the deceased on account of insurance policy to his Provident Fund Account on 24. 07. 1972. There is a note appended to the said application wherein it is specifically mentioned that the nomination of the petitioner as adopted son of (Late) Shri Ram Niwas be accepted from which it becomes explicitly clear that the deceased had no objection in nominating the petitioner as his legal heir or nominee for receiving the amount due to the deceased from the Government Securities, i. e. Pension, Provident Fund, Gratuity, Insurance etc. It has been further contended by the learned counsel for the petitioner that after the demise of (Late) Shri Ram Niwas Sharma, request was made to the Collector, Jaipur through Tehsildar, Sikrai to finalise the pension case of (Late) Shri Ram Niwas Sharma, but no pension has been given to the petitioner nor he has received any intimation. It has been further contended that the petitioner being the lawful nominee and adopted son of deceased Shri Ram Niwas has also not received any amount due to the deceased on account of gratuity. In support of his contention, the learned counsel for the petitioner has further stated at the bar that the petitioner had submitted an application on 5. 01. 1988 for appointment on the post of Class IV employee as the legal heir of (Late) Shri Ram Niwas Sharma as clearly permitted under the rules, but no attention was given to the said application nor the petitioner has received any intimation from the respondents in this regard till date. On the contrary, the petitioner received a reply from the respondents vide letter dated 4. 05. 1989 vide Annexure-5, wherein it has been mentioned that since (Late) Shri Ram Niwas was unmarried it cannot be presumed that that petitioner had validly been adopted by him. In this connection, it has been contended by the learned Government Advocate for the State that the petitioner, if at all, was aggrieved by the impugned letter dated 4. 05. 1989, it was open to the petitioner to have moved the civil court by filing a Declaratory suit in this regard which he had not done. It is also contended by the counsel for the State that since the adoption has not been proved by any documents i. e. adoption deed etc. , on the basis of a registered will which has been placed on the record it cannot be inferred that a valid adoption had taken place in the matter.
(3.) IN support of his contentions, the learned counsel for the petitioner has placed reliance upon a judgment passed by the Division Bench of this Court in the matter of Herald Hamilton vs. State of Raj. & Anr. (1) wherein this court while dealing with the identical situation had allowed the writ petition by recording the finding to the effect that the petitioner in terms of rule 3 read with rule 5 of the Rules 1975 was entitled to make an application for the purpose of giving him a suitable employment in Government Service against any existing vacancies which is not within the purview of State Public Service Commission. The court held as under: - "in view of the proposition of law laid down in the above referred cases and the context in which the word 'family' appears in the definition and the intention of the Rules makers, we are of the opinion that it is a word of loose and flexible description and not a technical term. It is also obvious that its ambit has to be determined, having regard to the habits, ideas and socio- economic milieu of the parties. It is also clear that it is not to be understood in a narrow sense of being a group of persons who are recognised in law having a right of succession or having a claim or right to a share in the property or meaning only a member of Hindu joint family. We, therefore, hold that a brother living with the unmarried sister for the purposes of the Rules of 1975 in the facts and circumstances of the case, would constitute a member of the family of the unmarried sister. " It will be relevant to mention another judgment of this court in the matter of Jaswant Singh vs. State of Raj. & Ors. (2), wherein while interpreting the meaning of word "family" under the rules in question reiterated the earlier view of this court case (supra) as under : - "the context in which the word "family" appears in the definition and the intention of the Rule makers, we are of the opinion that it is a word of loose and flexible description and not a technical term. It is also obvious that its ambit has to be determined, having regard to the habits, ideas and socio- economic miliue of the parties. It is also clear that it is not to be understood in a narrow sense of being a group of persons who are recognised in law having a right of succession or having a claim or right to a share in the property or meaning only a member of Hindu Joint Family. We, therefore, held that a brother living with the unmarried sister for the purpose of the Rules of 1975 in the facts and circumstances of the case, would constitute a member of the family of the unmarried sister. " The aforesaid decision of this court was followed by this court earlier in the matter of Madhu Sudhan Chauhan's case (S. B. C. W. Petition No. 3665/90) decided on 20lh November, 1990 (3) Reliance was also placed by the learned counsel for the petitioner on a decision of this court in the matter of Madhav Prasad vs. R. S. R. T. C. & Ors. In the said decision, this court after examining all the facts and circumstances of the case, arrived at the conclusion that since no return was filed by the respondents in answer to the writ petition and in the absence of the return to the writ petition the averments contained in the writ petition must be accepted as true. ;