# Shiv Prasad v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-06
- **Case number:** Civil Misc. Writ Petition No. 15252 of 2008
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-prasad-v-state-of-u-p-and-others-41639
- **Pages:** 9

## Headnote

Servant Dying in Harness Rules, 1974read with section 12 & 16 of Hindu
Adoption and Maintainace Act 1955compassionate appointment-claimed by
adopted
son-rejected
on
ground
of
pendency of civil suit by a person not
belonging
to
family
of
deceased
employee-suit for declaration of legal
heir-even
if
deceased
can
not
be
appointed
held-once
adoption
deed
executed acted upon-being registered
deed even on service record of deceased
employee-name of petitioner shown as
nominee-claim
for
compassionate
appointment can not be denied.

Held: Para 14 & 17

From a joint reading of Section 12 and
Section 16 of 1956 Act it is clear that
with effect from the date of adoption,
the adopted child shall be deemed to be
the child of his or her adoptive father or
mother for all purposes and would be
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
engrafted
in
the
family
of
his/her
adoptive mother and father and from
such date all the ties in the family of his
or her birth shall be deemed to be
severed and replaced by those created
by adoption in adoptive family. It implies
that in Hindu law on such adoption the
adopted
child
gets
all
the
rights,
privilege and obligations of child in the
adoptive family, therefore, there remains
no difference between real child and
adopted child and if the adoption is
registered under any law for time being
in force, it shall be presumed that
adoption has been done in accordance
with the provisions of law unless and
until it is disproved.

These statements of fact made in writ
petition have not been denied by the
respondents, therefore, I have no option
but to assume them as correct. In this
view of the matter, I am of the
considered opinion that the petitioner is
entitled
to
be
considered
for
compassionate appointment on account
of death of Triveni Prasad as his son
under Dying in Harness Rules 1974,
unless his adoption is disproved and
registered adoption deed is cancelled or
declared null and void and inoperative.
Case law discussed:
2005 (4) E.S.C. (All.J) 2706, {(1996) 1 UPLBEC
4, {2008 (4) ESC 2895 (All)}, AIR 1979 S.C.
734, Legislation and Interpretation (4th Edition
page 304 to 311), (1955) 2 SCR 603, AIR 1968
SC 413, AIR 1965 SC 33, 1994 (68) F.L.R. 283,
(1996) 1 U.P.L.B.E.C. 4, 2005 (4) E.S.C. (All)
2706,

## Text

2 All] Shiv Prasad V. State of U.P. and others
489
frivolous queries which were beyond their
jurisdiction. In so far as the Rules relating
to salaries, etc. was concerned, the Court
finds that no steps whatsoever was taken
by the State Government to arrive at a
consensus. The State Government was
adamant that parity should not be
disturbed and that a higher pay scale
should not be given to the Class-IV
employees of the High Court. In the light
of the aforesaid, the Court finds that a
direction to the State Government to again
constitute a Committee and resolve the
issue amicably would not lead to any
fruitful result. The matter is hanging fire
for the last five years and no result can be
seen in the near distance. Consequently,
remitting the matter again to the State
Government for reconsideration does not
appear to be a feasible option. A
mandamus is a discretionary remedy
under Article 226 of the Constitution and
can be issued to compel the performance
of public duty. The State Government was
required to perform a public duty and
place the Rules before the Governor for
its approval. By placing fetters in raising
frivolous
objections,
the
State
Government failed to perform its duty.
When the authority, which in the present
case, is the State Government, does not
perform its constitutional duty, the Court
could be compelled to intervene in the
matter not only to quash an order but also
issue a mandamus to that authority.

41. In the light of the aforesaid, the
impugned order dated 28.2.2007 cannot
be sustained and is quashed. The writ
petition is allowed and a mandamus is
issued to the State Government to place
the draft Rules framed by the Chief
Justice
under
Article
229
of
the
Constitution of India for approval before
the Governor. This exercise is required to
be carried out by the State Government as
early as possible. In the circumstances of
the case, the parties shall bear their own
cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 15252 of 2008

Shiv Prasad

...Petitioner

Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Dinesh Rai

Counsel for the Respondents:
Sri P.C. Shukla
S.C.

U.P. Recruitment of Dependent of Govt.
Servant Dying in Harness Rules, 1974read with section 12 & 16 of Hindu
Adoption and Maintainace Act 1955compassionate appointment-claimed by
adopted
son-rejected
on
ground
of
pendency of civil suit by a person not
belonging
to
family
of
deceased
employee-suit for declaration of legal
heir-even
if
deceased
can
not
be
appointed
held-once
adoption
deed
executed acted upon-being registered
deed even on service record of deceased
employee-name of petitioner shown as
nominee-claim
for
compassionate
appointment can not be denied.

Held: Para 14 & 17

From a joint reading of Section 12 and
Section 16 of 1956 Act it is clear that
with effect from the date of adoption,
the adopted child shall be deemed to be
the child of his or her adoptive father or
mother for all purposes and would be
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
engrafted
in
the
family
of
his/her
adoptive mother and father and from
such date all the ties in the family of his
or her birth shall be deemed to be
severed and replaced by those created
by adoption in adoptive family. It implies
that in Hindu law on such adoption the
adopted
child
gets
all
the
rights,
privilege and obligations of child in the
adoptive family, therefore, there remains
no difference between real child and
adopted child and if the adoption is
registered under any law for time being
in force, it shall be presumed that
adoption has been done in accordance
with the provisions of law unless and
until it is disproved.

These statements of fact made in writ
petition have not been denied by the
respondents, therefore, I have no option
but to assume them as correct. In this
view of the matter, I am of the
considered opinion that the petitioner is
entitled
to
be
considered
for
compassionate appointment on account
of death of Triveni Prasad as his son
under Dying in Harness Rules 1974,
unless his adoption is disproved and
registered adoption deed is cancelled or
declared null and void and inoperative.
Case law discussed:
2005 (4) E.S.C. (All.J) 2706, {(1996) 1 UPLBEC
4, {2008 (4) ESC 2895 (All)}, AIR 1979 S.C.
734, Legislation and Interpretation (4th Edition
page 304 to 311), (1955) 2 SCR 603, AIR 1968
SC 413, AIR 1965 SC 33, 1994 (68) F.L.R. 283,
(1996) 1 U.P.L.B.E.C. 4, 2005 (4) E.S.C. (All)
2706,

(Delivered by Hon'ble Sabhajeet Yadav, J.)

By this petition, the petitioner has
challenged the letter/communication of
Executive
Engineer,
Irrigation
Department, Obra Dam Khand, Obra,
Sonebhadra dated 23.2.2008 wherein it is
stated that the compassionate appointment
of petitioner would be considered after the
decision in Original Suit No. 631 of 2004
instituted by Sri Mohan Prasad son of
Jaipati in the court of Civil Judge (Junior
Division), Deoria. The aforesaid letter
was communicated to the petitioner in
pursuance of direction given by this Court
in Writ Petition No. 58491 of 2007
decided on 28.1.2007, earlier filed by
petitioner.

2. The brief facts of the case are that
one Sri Triveni Prasad, who was a
permanent class IV employee in the office
of
Executive
Engineer,
Irrigation
Department, Obra Dam, Obra, district
Sonebhadra/respondent no.2, died while
in service on 4.10.2003. The petitioner
claims to be adopted son and dependent
of said Triveni Prasad thus moved an
application in the office of respondent
no.2
for
his
appointment
on
compassionate ground against class IV
post on 13.1.2004. Since no action was
taken
by
the
respondent
no.2
for
appointment of petitioner in spite of
several representations and reminders, he
filed writ petition referred herein before
and while deciding said writ petition vide
order dated 28.11.2007 this Court has
directed the respondent no.2 to decide the
claim of compassionate appointment of
petitioner within a period of three months.
In pursuance thereof vide impugned order
/letter dated 23.2.2008 the respondent
no.2 while deciding the representation of
the
petitioner
has
deferred
the
consideration of claim of compassionate
appointment of petitioner and declined to
appoint him at the moment on account of
pendency of Suit No. 631 of 2004 in the
court of Civil Judge (Junior Division),
Deoria instituted by Sri Mohan Prasad son
of Jaipati @ Jairasi Prasad respondent
no.3, hence this petition.

3. It is stated in writ petition that
Late Triveni Prasad adopted the petitioner
2 All] Shiv Prasad V. State of U.P. and others
491
as his son during the life time of his wife
when the petitioner was only two years of
age. The adoption was made according to
rites and after adoption, the petitioner has
started living with his adoptive father and
mother. The adoption deed was also got
regisrered by Triveni Prasad, adoptive
father of the petitioner which is on record
as Annexure-2 of the writ petition. It is
also stated that the wife of Triveni Prasad
i.e. adoptive mother of petitioner had died
earlier, therefore, the petitioner was only
heir and legal representative of his
adoptive father Triveni Prasad. Thus in
his service book, he had also recorded the
name of petitioner for the purpose of
benefit of death-cum-retirement gratuity
as well as for family pension. A copy of
relevant extract of service book of Late
Triveni Prasad is on record as Annexure-3
of the writ petition. It is also stated that
the adoption of petitioner as son of
Triveni Prasad was entered in the school
register wherein the name of Triveni
Prasad has been shown as father of
petitioner. Even in the copy of family
register issued by Gram Panchayat Mohan
Mundera Vikas Khand, Rampur, district
Deoria, which is native place of Triveni
Prasad, the petitioner has been shown as
adopted son of Late Triveni Prasad. A
copy of family register issued by Gram
Panchayat Mohan Mundera Vikas Khand,
Rampur is on record as Annexure-5 of the
writ petition.

4. In para 11 of the writ petition, it is
stated that respondent no.3 Mohan Prasad
has no concerned with Late Triveni
Prasad as he does not come within the
purview of family of Triveni Prasad as
defined under U.P. Recruitment
of
Dependents of Government Servants
Dying in Harness Rules, 1974. Even in
suit instituted by respondent no.3 he has
shown himself as son of Jaipati and not as
son of Late Triveni Prasad. True copy of
the plaint of suit no. 631 of 2004
instituted by Mohan Prasad in Civil
Court, Deoria is on record as Annexure-8
of the writ petition. It is further stated in
para 12 of the writ petition that
respondent no.2 in his written statement
filed in Suit No. 631 of 2004 on his own
behalf as well as on behalf of State of
U.P. has specifically stated in para 17 and
18 of the said written statement that the
respondent
no.3
cannot
be
given
appointment on compassionate ground as
he is not son of Late Triveni Prasad and
does not fall within the definition of
family of deceased Government servant.
In this view of the matter he could not
decline
to
accept
the
claim
of
compassionate appointment of petitioner,
who is only son (adopted by Late Triveni
Prasad) and his name has already been
mentioned by Late Triveni Prasad in his
service book as well as in the documents
for gratuity and family pension as adopted
son of Triveni Prasad. A copy of written
statement filed by respondent no.2 in
Suite No. 631 of 2004 filed by respondent
no.3 Sri Mohan Prasad is on record as
Annexure-9 of the writ petition. In para
15 of the writ petition, it is specifically
stated that the sole case of respondent
no.3 is that he is legal representative and
heir of deceased Triveni Prasad. A legal
representative/heir of a deceased person,
if he died issueless, cannot be given
appointment under dying in harness rules
unless such legal heir and representative
comes within the definition of family
defined under said rule and further unless
he is found to be dependent upon a
deceased Government servant.

5. A detailed counter affidavit has
been filed on behalf of respondents no.1
492 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
and 2 wherein the relevant replies of
various paragraphs of the writ petition
given in paras 3,4,5,6,7, and 8 are as
under:-

"3. That in reply to the contents of
para 1 of the writ petition it is stated that
as for the same dispute and controversy,
involved in the present writ petition, the
respondent no.3 Mohan Prasad has filed
a suit in the court of Civil Judge (Junior
Division) Deoria, which is pending for
consideration, as such, due to this reason,
the claim of the petitioner being the legal
heir of late Triveni Prasad is pending.
Hence, due to pendency of the matter for
declaration of legal heir of deceased
Triveni Prasad in the court of Civil Judge
(Junior Division), Deoria, it is not
possible for the answering respondents to
dispose of the matter for declaration of
heir of deceased Triveni Prasad.
4. That the contents of paras 2,3,4,5
and 6 of the writ petition do not need any
specific reply, being matter of record.
5. That in reply to the contents of
para 7 of the writ petition it is stated that
due to pendency of suit for declaration of
legal heir of deceased Triveni Prasad, in
the court of Civil Judge (Junior Division),
Deoria,
no
consideration
on
the
petitioner's
application
for
his
appointment on compassionate ground, is
being
possible
by
the
answering
respondents.
6. That the contents of para 8 of the
writ petition, as stated, need no reply, for
want of specific knowledge.
7. That in reply to the contents of
para 9 of the writ petition, it is stated that
the copy of the order dated 28.11.2007
passed in Writ Petition No. 85491 of 2007
was made available in the office of
answering respondents on 1.1.2008. But
due to pendency of the dispute regarding
declaration of legal heir of deceased
Triveni Prasad in the court of Civil Judge
(Junior Division), Deoria, the answering
respondents are not in a position to
decide the application of the petitioner for
appointment on compassionate ground.
8. That in reply to the contents of
paras 10 to 17 of the writ petition it is
stated that suitable reply in detail have
already been given in the foregoing part
of this counter affidavit, which may kindly
be perused here and the same need not be
repeated here over again. As the claim of
the petitioner and respondent no.3 for
declaration of legal heir of deceased
Triveni Prasad, is pending consideration
in the court of Civil Judge (Junior
Division), Deoria, as such, the respondent
no.2 has rightly passed the impugned
order dated 23.3.2008. Until and unless
the claim for declaration of legal heir of
deceased Triveni Prasad is not decided by
the Civil Court, the answering respondent
no.2 is not in a position to decide the
claim of the petitioner. In view of the
aforesaid facts, the impugned order dated
23.2.2008 passed by the respondent no.2,
is wholly just, valid and legal and the
same does not suffer from any legal
infirmity. The petitioner is not entitled to
any of the relief, at present. The entire
action taken by the respondent no.2 is
wholly just and legal."

6. Heard learned counsel for the
petitioner and learned Standing counsel
for respondents no.1 and 2 but in spite of
service of notice upon the respondent no.3
no one is present on his behalf.

7. The contention of learned counsel
for the petitioner in nut shell is that it is
not disputed by the respondents no.1 and
2 in their counter affidavit filed in this
petition that the petitioner is adopted son
2 All] Shiv Prasad V. State of U.P. and others
493
of
deceased
Government
employee
namely Sri Triveni Prasad and is also
nominee in his service records as his
adopted son for post retiral benefits and
family pension. It is also not disputed that
in the school and family register the name
of the petitioner has been shown as
adopted son of Late Sri Triveni Prasad. It
is also not disputed that he was dependent
upon Triveni Prasad, therefore, merely
because of the fact that Sri Mohan Prasad
respondent no.3 has instituted a suit for
declaring him to be heir and legal
representative of deceased Triveni Prasad,
compassionate appointment cannot be
denied to the petitioner.

8. While elaborating his submission
learned counsel for the petitioner further
urged that although the suit No. 631 of
2004 instituted by Sri Mohan Prasad can
not be decreed as it stands but assuming
for the sake of argument, even if the relief
claimed in the suit that he is heir and legal
representative of Late Triveni Prasad is
granted
to
him
even
then
no
compassionate appointment can be given
to him for the simple reason that Sri
Mohan Prasad respondent no.3 has
described himself as son of Jaipati who
was brother of Triveni Prasad and has
claimed merely to be heir and legal
representative of Late Triveni Prasad on
the basis of any will alleged to be
executed by him in his favour. Therefore,
unless he would prove himself to be
member
of
family
of
deceased
Government servant as defined under the
rules concerned, and further found to be
dependent
upon
him,
relief
for
compassionate appointment can not be
given to him by decreeing said suit, as
such respondent no.2 could not defer and
decline
to
consider
the
claim
for
compassionate appointment of petitioner
merely on account of pendency of
aforesaid suit. In support of his case
learned counsel for the petitioner has
placed
reliance
upon
the
decisions
rendered by this Court in Ravindra
Kumar Dubey Vs. State of U.P. and
others, 2005 (4) E.S.C. (All.J) 2706,
Singhasan Gupta Vs. State of U.P. and
another {(1996) 1 UPLBEC 4 and
Robin Mritunjai Tewari Vs. State of
U.P. and others, {2008 (4) ESC 2895
(All)}.

9. In order to appreciate the
submission of learned counsel for the
petitioner, it is necessary to examine the
legal impact and implication of pendency
of suit for succession and compassionate
appointment filed by the respondent no.3,
referred herein before. In this connection
it would be useful to examine the
definition of "family" given under U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974 hereinafter referred to as
Dying in Harness Rules 1974 as well as
provisions of Sections-12 and 16 of the
Hindu Adoption and Maintenance Act1956 hereinafter referred to as 1956 Act,
which have material bearing with the
question in controversy involved in the
case.

10. The relevant part of Rule 2 of
Dying in Harness Rules 1974 containing
the definition of "family" is extracted as
under:-

"2. Definitions.-- In these rules,
unless the context otherwise requires:
(a) x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x
(c) "family" shall include the following
relations of the deceased Government
servant-
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(i) Wife or husband;
(ii) Sons;
(iii)
Unmarried
and
widowed
daughters;
(iv) if the deceased was unmarried
Government servant, brother, unmarried
sister and widowed mother dependant on
the deceased Government servant;"

11. Now before proceeding to deal
with the import of word or expression
"family" defined under definition clause
of Rule 2 of Dying in Harness Rules 1974
it is necessary to make reference to a
decision of Hon'ble Apex Court rendered
in S.K. Gupta and another Vs. K.P. Jain
and another, AIR 1979 S.C. 734, wherein
Hon'ble Apex Court has dealt with the
manner
in
which
the
words
and
expressions defined under the definition
clause of a statute has to be interpreted.
The pertinent observations of Hon'ble
Apex Court made in para 25 of the said
decision are extracted as under:-

"25. The noticeable feature of this
definition is that it is inclusive definition
and where in a definition clause the word
'include' is used, it is so done in order to
enlarge the meaning of the words or
phrases occurring in the body of the
statute when it is so used, these words or
phrases
must
be
construed
as
comprehending not only such things
which they signify according to their
natural import, but also those things
which the interpretation clause declares
that they shall include (see Dilworth v.
Commr. of Stamps (1899) AC 99 at p.
105)). Where in a definition section of a
statute a word is defined to mean a
certain thing, wherever that word is used
in that statute, it shall mean what is stated
in the definition unless the context
otherwise
requires.
But
where
the
definition is an inclusive definition, the
word not only bears its ordinary, popular
and natural sense whenever that would be
applicable but it also bears its extended
statutory meaning. At any rate, such
expansive
definition
should
be
so
construed as not cutting down the
enacting provisions of an Act unless the
phrase is absolutely clear in having
opposite effect (see Jobbins v. Middlesex
Country Council (1949) 1 KB 142).
Where the definition of an expression in a
definition clause is preceded by the words
'unless the context otherwise requires',
normally the definition given in the
section should be applied and given effect
to but this normal rule may, however, be
departed from if there be something in the
context to show that the definition should
not be applied (see Khanna, J. in Indira
Nehru Gandhi v. Raj Narain (1975) Supp.
SCC 1 at p. 97 : (AIR 1975 SC 2299). It
would thus appear that ordinarily one has
to adhere to the definition and if it is an
expansive definition the same should be
adhered to. The frame of any definition
more often than not is capable of being
made flexible but the precision and
certainty in law requires that it should not
be made loose and kept tight as far as
possible."

12. It appears that in Rule-2 of
Dying in Harness Rules which defines
various words or expressions mentioned
in the definition clause, these words and
expressions are preceded by the words
'unless the context otherwise requires'. It
means that the definitions given in the
definition clause should be normally
applied and given effect to but this normal
rule may however be departed from if
there be something in context to show that
definition should not be applied. In view
of legal position stated by Hon'ble Apex
2 All] Shiv Prasad V. State of U.P. and others
495
Court referred hereinbefore, the definition
of expression 'family' given in the
definition clause appears to be an
inclusive definition as the definition
clause used the word 'include' in the
definition of family. Such definition is
known as expansive definition and is used
to enlarge the meaning of the words or
phrases occurring in the body of statute
and when it is so used, the words or
phrases
should
be
construed
as
comprehending not only such thing which
they signify according to their natural
import, but also those things which the
interpretation clause declares that they
shall include. Where the definition is an
inclusive definition, the word not only
bears its ordinary, popular and natural
sense whenever that would be applicable
but it also bears its extended statutory
meaning. Contrary to it, where in a
definition clause of a statute a word is
defined to mean certain thing whenever
that word is used in that statute, it shall
mean what is stated in the definition
'unless the context otherwise requires'.
Such definition is known as restrictive
definition and used to restrict the meaning
of expression defined in the definition
clause and whenever such word or
expression is used in the body of the
statute, it shall be restricted to meaning
assigned in the definition clause and
popular or natural meaning of such word
or expression shall not be applied.

13. Now the provisions of Sections
12 and 16 of the Hindu Adoption and
Maintenance Act 1956 are extracted as
under:-

"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."

14. From a joint reading of Section
12 and Section 16 of 1956 Act it is clear
that with effect from the date of adoption,
the adopted child shall be deemed to be
the child of his or her adoptive father or
mother for all purposes and would be
engrafted in the family of his/her adoptive
mother and father and from such date all
the ties in the family of his or her birth
shall be deemed to be severed and
replaced by those created by adoption in
adoptive family. It implies that in Hindu
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
law on such adoption the adopted child
gets
all
the
rights,
privilege
and
obligations of child in the adoptive family,
therefore, there remains no difference
between real child and adopted child and
if the adoption is registered under any
law for time being in force, it shall be
presumed that adoption has been done in
accordance with the provisions of law
unless and until it is disproved.

15. Late Jagdish Swarup, eminent
jurist and author, in his Book- Legislation
and Interpretation (4th Edition page
304 to 311) has observed that a legal
fiction is one which is not an actual reality
but which the law requires the court to
accept it as reality, therefore, in case of
legal fiction the court believes something
to exist which in reality does not exist. In
other
words
it
is
nothing
but
a
presumption of existence of a state of
affairs which in actual reality is nonexistent. When viewed from this context
there is not much difference between a
legal fiction and presumption. However, it
cannot be said that legal fiction and
presumption are wholly identical in all
respects.
A
presumption
may
be
conclusive or it may be rebuttable. A
presumption gives rise to a legal fiction it
is conclusive, if no evidence can be
permitted to be led to deny it. In case of
presumption which is rebuttable unless
the contrary is established, fictitious state
of affairs is presumed to exist as if it is an
actual reality. As held by Hon'ble Apex
Court in Bengal Immunity Co. Vs. State
of Bihar (1955) 2 SCR 603, Braithwaite
and
Company
(India)
Ltd.
Vs.
Employees State Insurance Corporation
AIR 1968 SC 413 and Income Tax
Commissioner Vs. Express Newspaper
Ltd. AIR 1965 SC 33, that the legal
fictions are created only for some definite
purpose for which they are created and
they should not be extended beyond the
legitimate field. In this view of the matter,
there can be no scope for doubt to hold
that by Section 12 of 1956 Act the
legislature has created a legal fiction
requiring the court to accept adopted child
as real child of adoptive father and
mother. In my opinion, such legal fiction
was created for this legitimate and limited
purpose.

16. It is stated in the writ petition
that the petitioner is adopted son of
deceased
Government
Servant
Late
Triveni
Prasad
through
registered
adoption deed, therefore, in my opinion,
unless aforesaid adoption is disproved and
the registered document relating to his
adoption is cancelled, he shall be deemed
to be the real son of Late Triveni Prasad
for all the purposes including for
compassionate appointment under Dying
in Harness Rules 1974. The inclusive
definition of said Rules further fortified
the aforesaid view and in my opinion the
adopted son shall be included within the
meaning of son, defined as member of
family of deceased Government servant
under Dying in Harness Rules, 1974 and
the petitioner can claim all the benefits
like real son of Late Triveni Prasad
including
compassionate
appointment
under aforesaid Rules.

17. Further the petitioner has stated
in the writ petition that he is also nominee
of Late Triveni Prasad in his service book
for the purposes of post retiral dues
including death-cum-retirement dues as
well as family pension and in the family
register and school register the name of
petitioner has been shown as adopted son
of Triveni Prasad and he claims to be
dependent of Late Triveni Prasad. These
2 All] Har Dayal and others V. State of U.P. and another
497
statements of fact made in writ petition
have not been denied by the respondents,
therefore, I have no option but to assume
them as correct. In this view of the matter,
I am of the considered opinion that the
petitioner is entitled to be considered for
compassionate appointment on account of
death of Triveni Prasad as his son under
Dying in Harness Rules 1974, unless his
adoption is disproved and registered
adoption deed is cancelled or declared
null and void and inoperative. The
aforesaid view taken by me also finds
support from several decisions of this
Court rendered in Sunil Saxena Vs. State
of U.P. and others 1994 (68) F.L.R. 283,
Singhasan Gupta Vs. State of U.P. and
another (1996) 1 U.P.L.B.E.C. 4 and
Ravindra Kumar Dubey Vs. State of
U.P. and others 2005 (4) E.S.C. (All)
2706.

18. Now coming to the case of Sri
Mohan Prasad son of Jaipati, it is clear
that he is brother's son of deceased
Government servant and does not come
within the definition of family under the
said rule even if inclusive definition of
family is applied, therefore, he can not
claim compassionate appointment on
account of death of Late Triveni Prasad
irrespective of the fact that he has
instituted a suit for declaration that he
may
be
declared
heir
and
legal
representative of deceased employee. In
my opinion, even on such declaration also
he
can
not
claim
compassionate
appointment on account of death of
Triveni Prasad. Therefore, on account of
pendency of aforesaid suit instituted by
the respondent no.3 the action of
respondent
no.2
deferring
the
consideration of claim of compassionate
appointment of the petitioner can not be
held to be justified. Accordingly the
impugned order/letter dated 23.2.2008
passed by respondent no.2 cannot be
sustained and the same is hereby quashed,
in the result writ petition succeeds and is
allowed.

19. The respondent no.2 is directed
to consider the claim of compassionate
appointment of the petitioner within two
months from the date of production of
certified copy of this order before him by
ignoring the pendency of suit referred
hereinbefore filed by the respondent no.3
and offer him appointment if he is found
otherwise eligible for any Class-III or
Class-IV post under Dying in Harness
Rules 1974.

20. With the aforesaid observation
and
direction,
writ
petition
stands
allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2009

BEFORE
THE HON'BLE R.N. MISRA, J.

Criminal. Misc. Application No. 10811 of
2009

Har Dayal and others
....Applicants

Versus
State of U.P. & another ...Opposite Party

Counsel for the Applicants:
Sri Pramod Dwivedi

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 460with permission of magistrate under
section 155(2)-Police submitted charge
sheet
in
non
cognizable
offencescognizance taken by magistrate-under