IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 172 of 2010 Ravindra Verma ….…... Appellant Versus District Magistrate, Almora ………. Respondent Mr. Virendra Kaparwan, Advocate for the appellant. Mr. J.P. Joshi, Chief Standing Counsel (Govt. of Uttarakhand) for the respondent. Date of Judgment: 14.12.2010 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Nirmal Yadav, J. BARIN GHOSH, C.J. (ORAL) Admit. With consent of the parties, we have heard the appeal on its merit. 2. Claiming to be adopted son of late Sri Shiv Prasad, a Class – IV employee of the Government, who died in harness on 22nd March 2002, the appellant submitted an application on 15th April 2002 for consideration of his case under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 for appointment on a Class – III post. This application was not taken to its logical conclusion. Appellant, accordingly, filed Writ Petition (S/S) No. 1297 of 2005. The said writ petition was disposed of by directing District Magistrate, Almora to decide the said application of the appellant. The District Magistrate heard the appellant. Appellant produced before the District Magistrate, Almora succession certificate granted by Civil Judge (Senior Division), Almora on 18th November 2003 in Succession Case No. 15 of 2002 declaring that the appellant, being the adopted son, is entitled to succeed the deceased. Appellant also brought to the notice of the District Magistrate, Almora that on the basis of succession certificate, all terminal dues of the deceased have been released in favour of the appellant. The District Magistrate, Almora, however, in the order passed by him on 22nd May 2006 rejecting the application of the appellant for compassionate appointment, held out that the succession certificate is not binding, in as 2 much as the deceased during his life time married and the wife left the deceased during his life time and the succession certificate was obtained without notice to her. 3. In a subsequent writ petition, which has been rejected by the judgment and order under appeal, appellant contended that in view of Section 16 of the Hindu Adoptions and Maintenance Act, 1956, there is a presumption under law as regards validity of adoption, and in as much as the adoption of the appellant was recorded in a registered instrument of adoption, the District Magistrate, Almora erred in holding that the appellant is not the adopted son of the deceased. It was contended that since the Rules do not make any distinction between son and adopted son, the appellant was entitled to a compassionate appointment under the Rules. 4. The learned Judge, while dealing with the writ petition, found that the presumption under Section 16 of the said Act is rebutable, and that, of own showing of the appellant, he was more than 15 years at the time when the instrument of adoption was executed and registered and such an adoption is not permissible under Section 10 of the said Act. However, the learned Judge did not close the matter on that score. The learned Judge, in fact, did not consider the issue on that aspect and made the same explicit in the judgment and order under appeal. The learned Judge found, to which there appears to be no dispute, that the appellant is a married person. The learned Judge also found, to which also there is no dispute, that apart from the appellant, according to own showing of the appellant, the deceased did not survive any other heir. That being the situation, the learned Judge found that the deceased left no family behind to be looked after, in as much as the family of the deceased, namely, the appellant, is having his own family and the Dying in Harness Rules did not make any provision to show compassion for another family. On that score, the learned Judge refused to interfere. 3 5. In the present appeal, it is being contended that the appellant though got married, but the fact remains that he is an unemployed person. It was contended that the appellant should be deemed to be the family of the deceased and the family of appellant should also be deemed to be the family of the deceased. It was contended that since the appellant is the family of the deceased, needing compassion to be shown, the matter should have been dealt with in that manner. When a person marries, he takes upon himself the obligation to maintain his wife. When the appellant got married, he should be deemed to be competent to take financial care of his wife. Appellant would only be in a position to discharge the financial needs of his wife, when he is capable of taking care of the financial need of himself. In that background, we also do not find that there was any need to show any compassion to the appellant. 6. The appeal fails and the same is dismissed. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 14.12.2010 14.12.2010 Amit