Pushpendra Singh Bhati, J. - (1.) The petitioner has preferred this writ petition for the following reliefs:- "a) by an appropriate writ, order or direction, the respondents may kindly be directed to immediately provide appointment to the petitioner on the post of Class-IV in the respondent department under the Rules of 1996. b) by an appropriate writ, order or direction, the Hon'ble Court may further be pleased to quash and set aside the impugned order Annex.P/4 dated 01.09.2014 alongwith Law Department's opinion annexed with this order. c) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. d) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The petitioner's father namely Shri Satya Narayan Dadhich was working on the post of LDC in the respondent Department and did not have any child. Father of petitioner adopted the petitioner during his life time and accordingly an adoption-deed was appropriately registered with the Deputy Registrar, Sujangarh, District Churu. Copy of registered adoptiondeed is Annex.P/2 to the writ petition. Father of the petitioner filed a declaration of nominee with the respondents on 01.3.2007 showing name of petitioner as his adopted son. The declaration of nomination in the records of respondents is Annex.P/3. Father of the petitioner expired on 27.12.2012 while in service.
(3.) The petitioner has been denied compassionate appointment on the count that the adoption-deed was not in accordance with Section 10 of Hindu Adoption and Maintenance Act, 1956, which reads 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 :- (i) He or she is 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." Counsel for the petitioner has relied upon precedent law of this Court in Pankaj Vs. State of Rajasthan, 2013 1 RajLW 181, relevant portion of the judgment is reproduced as under :- "6 . After hearing learned counsel for the parties, I am of the firm opinion that no executive or administrative authority like the District Education Officer can exercise the jurisdiction to adjudicate or to give opinion with regard to legality of the document. The authority can assess the genuineness of the document if it appears to be forged; but, in this case, the District Education Officer (Secondary), Bikaner exceeded his jurisdiction to assess the validity of adoptiondeed which is not permissible in law. For this reason alone, the communication dated 12.7.2007 deserves to be quashed. 7 . In addition to the above reason, the other reason is also there with regard to assertion made by the said authority to deny appointment. In the impugned communication, it is observed by the District Education Officer (Secondary), Bikaner that the petitioner is only son of his natural parents but this fact is not correct. As per the reply filed by the respondents itself, in which, they accepted that the natural parents of the petitioner are having two issues-daughter Kavita and petitioner Pankaj. Therefore, on this ground also denial by the respondents cannot be sustained. With regard to registration of the adoption-deed, it is very strange that no such provision is there is the Act of 1956 that adoption-deed must be registered one for its being a valid adoption-deed. Adoption can be made under customs, therefore, the adoption deed filed by the petitioner cannot be treated to be unregistered document for the purpose of denial of appointment on compassionate ground. Wife of late Shiv Prakash Swami herself deposed in the affidavit that during the life-time of her husband late Shiv Prakash Swami they adopted the petitioner as their son. 8. On the basis of above discussion, this Court is of the opinion that denial of appointment on compassionate ground to the petitioner vide communication dated 12.7.2007 is totally unfounded and against the basic principles of law. Therefore, this writ petition is allowed. Impugned communication dated 12.7.2007 is hereby quashed and set aside. The respondents are directed to provide appointment to the petitioner in accordance with Rules of 1996 as per his qualification, within a period of one month from the date of filling certified copy of this order." Counsel for the petitioner has further relied upon the judgment of this Court in State of Rajasthan & Ors. Vs. Shyam Lal Purohit,2015 DNJ 643 the relevant pars of which is reproduced as under :- "1. In brief, facts of the case are that the respondent-petitioner Mr. Shyam Lal Purohit claimed appointment as per the provisions of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 being adopted son of Mr. Heera Lal Purohit, who died while in service on 25.05.2008. The appellant-respondents denied him appointment on the count that in his mark-sheet relating to 8th Standard Examination, he has been shown as son of Mr. Mangi Lal Purohit, his original father. It is also stated that in the year 1997-98, the age of respondent-petitioner Mr. Shyam Lal Purohit was more than 15 years, therefore, subsequent thereto, he could have not been adopted as per the provisions of the Hindu Adoption and Maintenance Act, 1956 (for short, 'the Act of 1956'). Being aggrieved by the same, the respondent-petitioner preferred a petition for writ, that came to be accepted by the order dated 23.05.2013 in light of the law laid down in Keshar Singh Vs. State of Rajasthan & Ors. [S.B. Civil Writ Petition No.7356/2012] decided on 10.05.2013. The case aforesaid was decided in light of a Single Bench judgment of this court in Pankaj Vs. State of Rajasthan & Ors. [S.B. Civil Writ Petition No.6066/2007] dated 16.05.2012 holding as under :- "After hearing learned counsel for the parties, I am of the firm opinion that no executive or administrative authority like the District Education Officer can exercise the jurisdiction to adjudicate or to give opinion with regard to legality of the document. The authority can assess the genuineness of the document if it appears to be forged; but, in this case, the District Education Officer (Secondary), Bikaner exceeded his jurisdiction to assess the validity of adoption-deed which is not permissible in law. For this reason alone, the communication dated 12.07.2007 deserves to be quashed. In addition to the above reason, the other reason is also there with regard to assertion made by the said authority to deny appointment. In the impugned communication, it is observed by the District Education Officer (Secondary), Bikaner that the petitioner is only son of his natural parents but this fact is not correct. As per the reply filed by the respondents itself, in which, they accepted that the natural parents of the petitioner are having two issues daughter Kavita and petitioner Pankaj. Therefore, on this ground also denial by the respondents cannot be sustained. With regard to registration of the adoption-deed, it is very strange that no such provision is there in the Act of 1956 that adoption-deed must be registered one for its being a valid adoption-deed. Adoption can be made under customs, therefore, the adoption-deed filed by the petitioner cannot be treated to be unregistered document for the purpose of denial of appointment on compassionate ground. Wife of late Shiv Prakash Swami herself deposed in the affidavit that during the life-time of her husband late Shiv Prakash Swami they adopted the petitioner as their son." 4. In appeal, the argument advanced by learned counsel for the appellants is that the facts of the case clearly indicate that the petitioner, if at all was adopted, then was adopted by late Mr. Heera Lal Purohit after the age of 15 years and that was contrary to the provisions of the Act of 1956, as such absolutely non-consequential. 5. We are not inclined to accept the argument advanced in view of the fact that the appellant-respondents by treating the respondentpetitioner adopted son of late Mr. Heera Lal Purohit have already given all the post retiral benefits including provident fund and gratuity. It is also pointed out that even in the Revenue records, much back in the year 2000 the respondent-petitioner has been shown as son of late Mr. Heera Lal Purohit. A succession certificate as per the provisions of Section 372 of the Indian Succession Act has also been issued in favour of the respondent-petitioner." Counsel for the petitioner has further relied upon the judgment of Hon'ble Supreme Court in Laxmibai (dead) Thr. LRs & Anr. Vs. Bhagwantbuva (Dead) Thr.LRs & Ors., 2013 AIR(SC) 1204, the relevant portion of the judgment is reproduced as under :- "15. We have appreciated the evidence on record, and are of the view that in the present case, only four adoptions have taken place over a time-span of 375 years and even though each time, a male child was taken from within the same family, the same may merely have been done as a matter of convenience, and may additionally also be only to prevent the property of the family, from going to an outsider. There is nothing on record to establish that a child from outside the family could not have been adopted, or that any such attempt was ever made, but was resisted and discarded. The Respondents/Defendants could not establish that a male child from outside the family could not be adopted. Thus, in view of the fact that the Defendants/Respondents have never made any reference with respect to the existence of a custom prohibiting the adoption of a child from outside the family, either in the notice served by them on 6.5.1971 upon Vasant Bhagwant Pandav, or in their written statement, the mere fact that it may only be for the sake of convenience, that a child was taken in adoption from within the same family on each of the four occasions over a period of 375 years, would not be sufficient to establish the existence of a custom in this regard, for the reason that custom cannot be proved by way of logic or analogy. Thus we hold, that the finding recorded by the Appellate Courts on this issue, is not based on any evidence, and that the appellate courts have committed an error in holding that the defendants/Respondents have successfully proved the existence of such special family custom. The appellate courts have failed to appreciate that a negative fact cannot be proved by adducing positive evidence. This is not a case where there have been adequate judicial pronouncements on the said issue previously, of which the court could have taken judicial notice. Special customs; which prevail in a family, a particular community etc., require strict proof and the Defendants/Respondents have failed to prove the same. Section 10 of the Act 1956, provides that a child upto the age of 15 years can be taken in adoption. Section 11 thereof prescribes, that in the event that a female adopts a male child, there must be a difference of 21 years between the age of the female and that of the adoptive child. In the event that there is a registered adoption deed, there is a presumption of validity with respect to the said adoption. If these tests are applied, the following situation emerges: The adopted child was 8 years of age at the time of adoption. Laxmibai, the adoptive mother, was 70 years of age at the relevant time and there is in fact, a registered adoption deed. Therefore, there is a presumption Under Section 16 of the Act 1956, to the effect that the aforementioned adoption has been made in compliance with the provisions of the Act, 1956 until and unless such presumption is disproved. In the event that a person chooses to challenge such adoption, the burden of proof with respect to rebutting the same, by way of procedures accepted by law, is upon him. In the instant case, the Defendants/Respondents never made any attempt whatsoever, to rebut the presumption Under Section 16 of the Act 1956. The Defendants have examined two witnesses, namely Narharibuva (DWI) and Somnath (DW2). We have been taken through their depositions, in which there has been no reference whatsoever to the registered adoption deed, let alone any attempt of rebuttal. Therefore, the Defendants/Respondents have failed to discharge the burden of rebuttal placed upon them, with respect to the presumption of validity of adoption Under Section 16 of the Act 1956.";