# Akash Goel v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 493
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-08
- **Case number:** Civil Misc. Writ Petition No. 15389 of 2008
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-goel-v-state-of-u-p-and-ors-42904
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Service Lawcompassionate
appointment-petitioner
being adopted son-claim rejected as on the
494 INDIAN LAW REPORTS ALLAHABAD SERIES

date deed registered-petitioner was more
than 19 years-as such as per section 10(4) of
the Act-adoption-illegal-held such approach
of
authority
beyond
jurisdiction-when
petitioner was 2 years old adoption took
place in accordance with law-having no
requirement
of
registration-date
of
subsequent registration immaterial-order
quashed-with follow up direction.

Held: Para-10 & 11
Thus, it is clear that the petitioner was
adopted when he was two years old. To
legalise the said adoption, adoption deed
has been executed on 11.09.2000 and was
registered. The said registered adoption
deed has not been challenged and it has
neither been declared void, improper,
ineffective nor inoperation by any of the
competent court. The recital made in the
adoption deed is not disputed. Therefore,
the adoption is deemed to have been made
when the petitioner was two years old and
thus, it was in accordance to provisions of
Hindu Adoption and Maintenance Act,

## Text

1 All] Akash Goel Vs. State of U.P. and Ors.

493
Dhaniram Luhar AIR 2004 SC 1794; State of
Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC
573; Vishnu Dev Sharma v. State of Uttar
Pradesh & Ors. (2008) 3 SCC 172; Steel
Authority of India Ltd. v. Sales Tax Officer,
Rourkela I Circle & Ors. (2008) 9 SCC 407;
State of Uttaranchal & Anr. v. Sunil Kumar
Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C.
v. Jagdish Prasad Gupta AIR 2009 SC 2328;
Ram Phal v. State of Haryana & Ors. (2009)
3 SCC 258; State of Himachal Pradesh v.
Sada Ram & Anr. (2009) 4 SCC 422; and The
Secretary & Curator, Victoria Memorial Hall
v. Howrah Ganatantrik Nagrik Samity &
Ors., AIR 2010 SC 1285).

16. In view of the aforesaid legal
position, if the order dated 15.7.2013 is
interfered with and quashed, another illegal
order dated 30.4.2010 would revive. It is
settled that if by quashing of an illegal order,
another illegality revives in that eventuality,
the Court should not interfere with such
orders under the writ jurisdiction.

17. The view taken by me finds support
from the judgments of the Apex Court in
Gadde Venkateswara Rao Vs Government of
Andhra Pradesh & Ors. AIR 1966 SC 828,
Champalal Binani Vs. CIT, West Bengal AIR
1970 SC 645, Maharaja Chintamani Saran
Nath Shahdeo Vs. State of Bihar & Ors. AIR
1999 SC 3609, Mallikarjuna Mudhagal
Nagappa & Ors. Vs. State of Karnataka &
Ors. AIR 2000 SC 2976, Chandra Singh Vs
State of Rajasthan, AIR 2003 SC 2889, S.D.S.
Shipping Pvt. Ltd. Vs. Jay Container Services
Co. Pvt. Ltd. & Ors. 2003 (4) Supreme 44,
State of Uttaranchal & Anr. Vs. Ajit Singh
Bhola & Anr. (2004) 6 SCC 800 and State of
Orissa & Anr. Vs Mamata Mohanty, (2011) 3
SCC 436.

18. This Court has reiterated the
same view in Smt. Shanti And Another
Vs. Board of Revenue Lko. And 3 Others,
2013 (8) ADJ 424.

19. In view of foregoing discussions, I
am not inclined to interfere with the impugned
orders. The writ petition is dismissed.

20. However, in the last, learned
counsel for the petitioner contended that a
direction may be issued to the SubDivisional Officer to pass appropriate
order in proceeding on merit after hearing
both the sides expeditiously.

21. I find substance in the submission
of learned counsel for th petitioners.
Therefore,
the
Sub-Divisional
Officer,
Mohammadabad,
District
Ghazipur,
is
directed to conclude the proceedings in
accordance with law after hearing all
concerned, expeditiously but not later than ten
months from the date of receipt of certified
copy of the order of this Court.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 15389 of 2008

Akash Goel..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri L.C. Srivastava

Counsel for the Respondents:
C.S.C., Sri B.P. Singh, Sri Sandeep Singh, Sri
Ajay Kumar Sharma, Sri Bhola Nath Yadav.

Constitution of India, Art.-226-Service Lawcompassionate
appointment-petitioner
being adopted son-claim rejected as on the
494 INDIAN LAW REPORTS ALLAHABAD SERIES

date deed registered-petitioner was more
than 19 years-as such as per section 10(4) of
the Act-adoption-illegal-held such approach
of
authority
beyond
jurisdiction-when
petitioner was 2 years old adoption took
place in accordance with law-having no
requirement
of
registration-date
of
subsequent registration immaterial-order
quashed-with follow up direction.

Held: Para-10 & 11
Thus, it is clear that the petitioner was
adopted when he was two years old. To
legalise the said adoption, adoption deed
has been executed on 11.09.2000 and was
registered. The said registered adoption
deed has not been challenged and it has
neither been declared void, improper,
ineffective nor inoperation by any of the
competent court. The recital made in the
adoption deed is not disputed. Therefore,
the adoption is deemed to have been made
when the petitioner was two years old and
thus, it was in accordance to provisions of
Hindu Adoption and Maintenance Act,
1956. Sections 12 and 16 of the Act, 1956

11. Section 16 of the Act, 1956 provides
that whenever any documents 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 it is disproved. The
respondent is not able to dispute that the
said adoption deed has been disproved by
any of the competent authority. Therefore,
it is not open to the respondents to dispute
the recital in the adoption deed and validity
of registered adoption deed and that the
petitioner is not legally adopted son.

Case Law discussed:
2009(3)UPLBEC 2482.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri L.C.Srivastava, learned
counsel for the petitioner and Sri Sandeep
Singh, Advocate holding brief of Sri
B.P.Singh, learned counsel appearing on
behalf of the respondents.

2. The petitioner claims himself to
be the adopted son of Sushila Kumari,
who was working as Assistant Teacher in
Primary
Pathsala,
village
Bhalaswa
Isapur,
Block
Balaikheri,
district
Saharanpur, which was under the Basic
Shiksha Adhikari, Saharanpur, is claiming
compassionate appointment on her death,
in-harness on 11.03.2004. When the claim
of the petitioner for the compassionate
appointment has not been considered, the
petitioner filed Writ Petition No.11620 of
2006, which has been disposed of vide
order
dated
12.11.2007
asking
the
Secretary, Basic Shiksha Parishad U.P. at
Allahabad to decide the application of the
petitioner. In pursuance thereof, the
application of the petitioner has been
decided by the impugned order dated
23.01.2008 and the same has been
rejected.
The
application
has
been
rejected on the ground that the petitioner's
date of birth is 12.03.1981 while the
registered adoption deed is executed on
11.09.2000 when the petitioner was
nineteen years, five month and twenty
days old, while in accordance to Section
10
(4)
of
Hindu
Adoption
and
Maintenance
Act,
1956
(hereinafter
referred to as the "Act, 1956") the
adoption of a person below the age of
fifteen years can be made and thus, in
accordance to Section 10 (4) of the Act,
1956, the petitioner was not eligible for
the adoption and accordingly, the claim of
compassionate appointment has been
rejected.

3. Learned counsel for the petitioner
submitted that the petitioner has been
adopted at the age of two years by Sushila
1 All] Akash Goel Vs. State of U.P. and Ors.

495
Kumari, which is apparent from the adoption
deed and such recital is in the adoption deed
itself. To regularise such adoption in
accordance to law and to give legal shape,
the registered adoption deed has been
executed on 11.09.2000 and has been got
registered. Therefore, the adoption was made
in accordance to provisions of Act, 1956.
The said adoption deed has not been held
void, illegal, ineffective and inoperation by
any of the competent court and, therefore,
can not be disputed. Further Section 16 of the
Act, 1956 raises presumption that whenever
any document is 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 it is disproved. In
the present case, the said documents has not
been disproved by any of the competent
authority and, therefore, it stand valid.

4. He further submitted that Section
12 of the Act, 1956 provides that an
adopted child shall be deemed to be the
child of his or her adoptive father or
mother for all purposes with effect from
the date of the adoption and from such
date all the ties of the child in the family
of his or her birth shall be deemed to be
severed and replaced by those created by
the adoption in the adoptive family.

5. In the present case adoption took
place when the petitioner was two years
old, thus, the date of adoption should be
deemed on the said date. Merely because
the documents is registered in the year
2000, the actual date of adoption at the
age of two years old, can not be disputed.
He further submitted that the definition of
Family as provided in section 2(c) of the
U.P. Recruitment of Dependants of
Government Servant (Dying-in-Harness)
Rules, 1974 includes son, which also
includes the adopted son. Reliance is
placed on the decision of this Court in the
case of Shiv Prasad Vs. State of U.P. and
others, reported in 2009 (3) UPLBEC,
2482.

6.

Learned
counsel
for
the
respondents has relied upon the impugned
order and submitted that the petitioner
may be deemed to have been adopted on
the date when the adoption deed has been
executed and has been registered, i.e. on
11.09.2000 and on the said date petitioner
was 19 years old and, therefore, in view
of Section 10 (4) of the Act, 1956 such
adoption deed was not valid and,
therefore, the petitioner can not be treated
as adopted son and is not entitled for the
compassionate appointment.

7. I have considered the rival
submission and perused the record.

8. The facts are not in dispute,
namely, that the petitioners' date of birth
is 12.03.1981. The execution of adoption
deed is 11.09.2000 and Sushila Kumari,
Assistant Teacher died on 11.03.2004 in
harness. There is no dispute that in view
of definition of family Section 2 (c) of the
Rules, 1976 the family includes the son.
The son includes the adopted son. This
view has been consistently taken by this
Court. In the case of Shiv Prasad Vs. State
of U.P. and others (Supra) held that
adopted son is included in the definition
of son and has been held to fall within the
definition of "family" under Rule 2 (c) of
the Rules, 1974.

9.

Now
the
question
for
consideration is whether the petitioner can
496 INDIAN LAW REPORTS ALLAHABAD SERIES

be treated as adopted son, pursuant to
adoption deed which is annexed as
annexure-2 to the writ petition.

10. In the adoption deed there is a
clear recital that date of birth of the
petitioner is 12.03.1981 and when the
petitioner was two years old he has been
adopted by Sushila Kumari. In paragraph
no.4 of the writ petition, it is stated the
petitioner was adopted on 12.06.1983
after performance of "Duttak Hawan" in
accordance to Hindu rites. In paragraph
no.6 of the writ petition, it is stated that
just after the date of adoption, the
petitioner was nursed and look after by
the adoptive mother to avoid any
complications and thereafter, the adoption
deed was got registered. Such averments
have not been specifically controverted.
Thus, it is clear that the petitioner was
adopted when he was two years old. To
legalise the said adoption, adoption deed
has been executed on 11.09.2000 and was
registered. The said registered adoption
deed has not been challenged and it has
neither been declared void, improper,
ineffective nor inoperation by any of the
competent court. The recital made in the
adoption deed is not disputed. Therefore,
the adoption is deemed to have been made
when the petitioner was two years old and
thus, it was in accordance to provisions of
Hindu Adoption and Maintenance Act,
1956. Sections 12 and 16 of the Act, 1956
reads as follows:

"12. Effects of adoption.-- An adopted
child shall be deemed to be the child of his or
her adoptive father or mother for all purposes
with effect from the date of the adoption and
from such date all the ties of the child in the
family of his or her birth shall be deemed to
be severed and replaced by those created by
the adoption in the adoptive family:

Provided that-

(a) the child cannot marry any person
whom he or she could not have married if
he or she had continued in the family of
his or her birth;

(b) any property which vested in the
adopted child before the adoption shall
continue to vest in such person subject to
the obligations, if any, attaching to the
ownership of such property, including the
obligation to maintain relatives in the
family of his or her birth;

(c) the adopted child shall not divest
any person of any estate which vested in
him or her before the adoption.

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 it is disproved."

11. Section 16 of the Act, 1956 provides
that whenever any documents 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 it is
disproved. The respondent is not able to
dispute that the said adoption deed has been
disproved by any of the competent authority.
Therefore, it is not open to the respondents to
dispute the recital in the adoption deed and
1 All] Smt. Lata Rani Vs. The State of U.P. and Ors.

497
validity of registered adoption deed and that
the petitioner is not legally adopted son.

12. In the case of Shiv Prasad Vs. State
of U.P. and others (Supra) the petitioner
therein was adopted when he was two years
old and started living with his adoptive parents
and adoption deed was also got registered. On
consideration
of
provisions
of
U.P.
Recruitment of Dependants of Government
Servant (Dying-in-Harness) Rules, 1974, it
has been held that the petitioner therein was
entitled for the claim of compassionate
appointment.

13. In view of the above, the
impugned order is not sustainable and is
liable to be set aside and is accordingly,
set aside. The petitioner is entitled to be
appointed on compassionate ground being
adopted son. The respondents are directed
to consider compassionate appointment
treating the petitioner as adopted son of
Sushila Kumari within a period of two
months from the date of presentation of
the certified copy of this order.

14. The writ petition is, accordingly,
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 16117 of 2004

Smt. Lata Rani....... ...........Petitioner
Versus
The State of U.P. & Ors. .....Respondents

Counsel for the Petitioner:
Sri Atul Tej Kulshreshtha

Counsel for the Respondents:
C.S.C.

U.P. Police(Extra ordinary Pension)Rules
1961 read with first Amendment Rule
1975-Rule
3-claim
of
extra-ordinary
Pension-denied
on
ground-while
returning from
duty place on way
suffered
pain
in
chest-admitted
in
hospital and dead-can not be treated
death during course of discharge of dutycan not be interfered by Writ Court.

Held:Para-28
There may be some occasions to engulf such
a situation, but it is not in the present case.
In fact, Rule 3 of Rules, 1961 is more
restricted than what the provision has been
in
Act,
1923,
which
came
up
for
consideration in so many cases above. I have
no hesitation in saying that some of the
judgments of High Court though help
petitioner but in the light of binding decision
of Supreme Court, I am left with no option
but to hold that in the case in hand,
petitioner cannot be held entitled for extra
ordinary pension under Rules 1961.

Case Law Discussed:
W.P. No. 47802 of 2010; W.P. No. 55471 of
2009; 1981 TAC 359; 1987 Lab.I.C. 1795;
1984 (2) TAC 56; 1991(1) T.A.C. 140; AIR
1964 SC 193; AIR 1970 SC 1906; 1991 (2)
T.A.C. 62; 2003(1) T.A.C. 561; 1996(6) SCC 1;
(1977) 2 All ER 420; AIR 1958 SC 881.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Atul Tej Kulshreshtha,
learned counsel for the petitioner and learned
Standing Counsel for the respondents.

2. A short question up for
consideration in this case, "whether
petitioner is entitled for extra ordinary
pension
under
U.P.
Police
(Extra
Ordinary
Pension)
Rules,
1961
(hereinafter referred to as "Rules, 1961")
as amended by U.P. Police (Extra
Ordinary Pension) (First Amendment)
Rules, 1975".