IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2343 of 2008 CHHOTE LAL UPADHYAY, son of late Baban Upadhyaya, resident of village Kohari, P.S. Bhabhua, District Kaimur … Petitioner Versus 1. THE BIHAR STATE ELECTRICITY BOARD, PATNA through its Secretary 2. The Secretary, Bihar State Electricity Board, Patna 3. The G.M. cum Chief Engineer, Magadh Electric Supply Area, Gaya 4. The Executive Engineer (Electrical), Electric Supply Division, Bhabhua (Kaimur) 5. The Joint Secretary, Bihar State Electricity Board, Patna (General Administration Department) … Respondents ----------- 4. 5.5.2011 Heard Mr. Amish Kumar, learned counsel for the petitioner and Mrs. Nivedita Nirvikar on behalf of Bihar State Electricity Board. The prayer of the petitioner in this writ application reads as follows: “(i) For quashing the letter no. 1037, dated 8.8.2005 passed by the Executive Engineer (Electrical), Electric Supply Division, Bhabhua (respondent no.4), whereby the claim of the petitioner for his appointment on compassionate ground has been rejected. (ii) For direction that circular dated 1.4.1993 issued by respondent no.5 is ultravires the provisions of section 12 of the Hindu Adoption and Maintenance Act, 1956. 2 (iii) For direction to the respondent Board to appoint the petitioner on compassionate ground due to sudden death of his adoptive father while in harness, this leaving the petitioner in penny and destitute.” Mr. Kumar in support of the aforementioned prayer would submit that the impugned order rejecting the claim of appointment of the petitioner on compassionate ground only because he was an adopted son of the deceased employee of the Board cannot be sustained either on fact or in law, inasmuch as the Board having adopted the Government circular dated 5.10.1991 as with regard to prohibiting adopted son for being appointed on compassionate ground would be bound by the judgment of this Court holding in the case of appointment in Government service that even an adopted son would be standing in the same category as a natural son for the purposes of compassionate appointment. He would eventually submit that the impugned order based on the circular dated 21.4.1993 cannot be sustained especially when a similar provision was amended by the State 3 Government by issuing a circular dated 12.5.2005 wherein this Court had held that the classification and distinction made between the natural son and adopted son was absolutely against the spirit of Hindu Adoption and Maintenance Act and Hindu Law as also in the background of scheme of compassionate appointment seeking to rehabilitate the dependent family members of the deceased employee being a beneficial provision. He would further submit that the fact regarding the petitioner being adopted son cannot be disputed nor has been disputed in the impugned order and in fact his case has been rejected only on the ground of his being adopted son and not that his adoption was invalid. Per contra, Mrs. Nirvikar appearing on behalf of the Board would submit that the circular dated 21.4.1993 is no longer in vogue and stands superseded by a fresh order dated 18.2.1994 and therefore, when this circular dated 18.2.1994 without reference to any Government policy has itself laid down the prohibition in appointment of an adopted son, the petitioner would not be 4 entitled for appointment on compassionate ground. She has further submitted that the validity of the said circular dated 18.2.1994 stands affirmed by the Division Bench of this Court which having noticed the earlier judgment with regard to adopted son in the case of Government servant under the Government policy dated 5.10.1991 as also the judgment of this Court holding adopted son to be equally entitled for appointment on compassionate ground as a natural son was noticed and distinguished in view of the statutory provisions made under section 79(c) of the Electricity Supply Act. 1948. Learned counsel for the Board has also emphasized that there is no document by which it cannot be said with sense of certainty or conviction that the petitioner in fact was the adopted son of the deceased employee and mere payment of certain amount of the deceased employee on the basis of some succession certificate would not make the Board also liable to accept the factum of adoption as alleged by the petitioner. In the considered opinion of this Court all these issues will pale into 5 insignificance, inasmuch as one has to go into the reason that was made the basis for rejecting the case of the petitioner for appointment on compassionate ground. The impugned order was passed by an Executive Engineer who thought that the circular dated 21.4.1993 was till in operation whereas it is the case of the Board as clearly projected in the counter affidavit that the circular in vogue at the time of considering the case of the petitioner for compassionate appointment was dated 18.2.1994. Since the said circular dated 18.2.1994 very clearly says that the Board is framing policy for appointment on compassionate ground by superseding all its previous order, it would automatically mean that the Board had also superseded the order dated 21.4.1993. Thus, the impugned order which was passed by the Executive Engineer on the premises of the circular dated 21.4.1993 would automatically become one which can be easily said to be based on non est and non- existent ground. The rejection of the case of the petitioner on the basis of a circular which had already been superseded, 6 therefore, was wholly illegal and the impugned order has to be quashed on that ground alone. In view of the fact that the circular dated 21.4.1993 is no longer in existence, there would be no need to go into the other question as with regard to its being discriminatory and also declaring it ultra vires section 12 of the Hindu Adoption and Maintenance Act. It is well settled that no academic exercise is to be undergone into as with regard to a relief if the same does not survive for adjudication. Since the circular dated 21.4.1993 has been accepted by the Board itself to have been superseded no useful purpose would be served by going into the other question raised by the counsel for the petitioner. True it is that the same provision was noticed by this Court in the subsequent circular dated 18.2.1994 and was also approved by the Division Bench judgment of this Court in the case of Deepak Kumar Tiwari vs. Bihar State Electricity Board, reported in 2004(2) PLJR 19, but then the contrary view has been recorded by another Division Bench in the order dated 5.1.2007 7 in L.P.A.No. 866/2005 (Jay Kumar vs. the Bihar State Electricity Board & ors.), wherein the rule framed by the Court debarring adopted son from compassionate appointment has been held to be bad. It is, however, case of the Board that the matter is pending before the Supreme Court in Civil Appeal No. 3021/2008 and therefore, when the case of the petitioner also has not been rejected on the ground of the subsequent circular dated 18.2.1994 this Court would not like to go into this issue for the present in view of the matter being pending before the Apex Court. None-the-less it becomes clear that the case of the petitioner was wrongly rejected. If the Board’s case is also accepted that the Executive Engineer had no power to reject the case of the petitioner, inasmuch as the same circular of the Board dated 18.2.1994 clearly prescribes the manner of consideration of case of appointment on compassionate ground by a Committee at the Apex Board level headed by the Secretary of the Board. Admittedly the case of the petitioner was never placed 8 before such Committee and therefore, there would be no difficulty in holding that the impugned order is also unsustainable on account of prescribed procedure laid down by the Board itself to have been not followed. Consequently having quashed the impugned order this Court would direct the Secretary to the Board to now consider the case of the petitioner for appointment on compassionate ground within a period of six months from the date of receipt/ production of a copy of this order by taking into account the documents which had led the Board to make payment of death cum retirement benefit of the deceased employee to the petitioner in capacity of his being adopted son. It will be also open for the petitioner to produce any other evidence as with regard to his adoption and in the event he would satisfy the authorities of the Board that he was an adopted son, the appointment of the petitioner if otherwise permissible would be made subject to result of the judgment of the Apex Court because there is a conflict of view as with regard to status of adopted son so far it relates 9 to the Board. It is made clear that if the Supreme Court judgment does not approve the Division Bench judgment in the case of Jay Kumar (supra) and holds that the adopted son cannot be appointed on compassionate ground in the Board, the services of the petitioner shall automatically stand terminated. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/