IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.18921 of 2010 Date of decision : 16.03.2011 Miss Jaspreet Kaur … Petitioner Versus State of Punjab and others …Respondents CORAM : HON’BLE MR.JUSTICE PERMOD KOHLI Present: Mr.K.L.Arora, Advocate for the petitioner. Mr.B.S.Chahal, DAG, Punjab. Permod Kohli, J. Petitioner’s request for family pension has not been acceded to. Even though, no formal order of rejection of claim of the petitioner has been passed, however, from the reply, it appears that the petitioner has been declined family pension on the ground that her adoption was not prior to the retirement of the govt. employee. It may be necessary to briefly notice the factual background leading to the filing of the present writ petition. Tej Singh was working as Senior Assistant in the office of Labour Commissioner, Punjab. He sought voluntary retirement from service on 2.6.2000. On his voluntary retirement, pension was sanctioned in his favour. Unfortunately, Tej Singh died on 29.7.2001 and on his death, pension was sanctioned in favour of Jasmer Kaur his widow. Unfortunately, widow of Tez Singh namely, Jasmer Kaur also died on 19.7.2010. The petitioner approached the respondents for grant of family pension in her favour claiming to be un-married and adopted daughter of Tez Singh, the deceased govt. employee, vide her application dated 16.8.2010. The claim of the petitioner has not been accepted which forced the petitioner to file the present petition seeking a writ in the nature of mandamus to grant family pension and other benefits of her deceased father. Family pension is governed by the statutory rules namely Punjab Civil Services Rules Vol.II. CWP No.18921 of 2010 Rule 6.16-B(1) and 6:17 thereof define ‘family’ for purposes of pension, which read as under:- “(a) “family”shall include the following relatives of the officer:- (i) wife or wives including judicially separated wife or wives, in the case of male office; (ii) husband including judicially separated husband, in the case of female officer; (iii) sons Including step-children (iv) unmarried and widowed daughters and adopted children (v) brothers below the age of 18 years and unmarried and widowed sisters, including step brothers and sisters; (vi) Father Including adopted parents in (vii) Mother; case of individuals whose personal law permits adoption. (viii) married daughters; and (ix) Children of a predeceased son; Rule 6.17 The provision of this rule shall apply (a) to a regular employee of Punjab Government in a pensionable establishment on or after the 1st July, 1964; and (2) The Scheme will be administered as below: (i) The family pension will be admissible in case of death while in service or after retirement if at the time of death the retired government employee was in receipt of a compensation, invalid, retiring or superannuation pension. In case of death while in service, the Government employee should have completed a minimum period of one year of continuous service, without break. The family pension will not be admissible in cases of death after retirement, if the retired employee at the time of death was in receipt of gratuity only. (3) “Family” for purposes of this Scheme will include the following relatives of the Government employee:- (a) wife in the case of a male Government employee and husband in the case of a female Government employee; (b) a judicially separated wife or husband, such separation not being granted on the ground of adultery, provided the marriage took place before the retirement of the Government employee and the persons surviving was not held guilty of committing adultery; and (c) sons upto the age of twenty-five years. (d) unmarried daughters upto the age of twenty five years. Note 1:- (c) and (d) will include children adopted legally before retirement. 2 CWP No.18921 of 2010 (4) The pension will be admissible:- (i) (a) in the case of a widow or widower up to the date of death or remarriage whichever is earlier; (b) in the case of son and unmarried daughter until he or she attains age of twenty five years or till he or she starts earning his/her livelihood, which ever is earlier.” Definition of ‘family’ under Rule 6.16-B(1) of the Punjab Civil Services Rules comprises widow, unmarried and widowed daughter including step-children and adopted children. For purposes of family pension, scheme laid under Rule 6.17 of the Punjab Civil Services Rules again define the “family” which inter alia includes son and un-married daughter upto the age of 25 years. In view of the Note (1) appended to sub rule 3 of Rule 6.17 of the Punjab Civil Services Rules, such of the children who were adopted legally before retirement, are eligible for family pension. Under the statutory rules, an adopted daughter is entitled to family pension provided she is un-married and her age does not exceed 25 years and such adoption has taken place before the retirement of the deceased government employee. Respondents have rejected the request of the petitioner only on the ground that her adoption was after the retirement of the deceased-government employee. Petitioner has relied upon the adoption deed dated 15.9.2002, duly registered before the competent authority i.e. Sub Registrar, Chandigarh. It contains the following stipulation regarding adoption of the petitioner:- “And whereas the aforesaid adoptive mother is a widow having no child of her own. Since her husband has expired on 29.7.2001. The adoptive mother and her deceased husband took the said female child Jaspreet Kaur since her childhood and brought up and nursed her with utmost love and care. The adoptive mother and her deceased husband also admitted the said female child in School mentioning Jaspreet Kaur daughter of Sh.Tej Singh and Smt.Jamer Kaur. In support of this, an attested photo-copy of Middle Standard Examination 2001 certificate No.8340 dated 30th April, 2011 issued by the Department of Education, Chandigarh Administration (U.T.) is enclosed herewith. And whereas the said female child named Jaspreet Kaur has already and actually been given and taken in adoption by the parents concerned after performing religious ceremony and 3 CWP No.18921 of 2010 under the provisions of Hindu Adoption and Maintenance Act, 1956 with the intent to transfer the said female child permanently from natural parents to the family of adoptive mother. The adoption ceremony was held on 07.02.1988.” It is not in dispute that the adoption deed has been executed and registered not only after the retirement of the deceased government employee Tej Singh but even after his death. However, the adoption deed seems to be only a declaration in respect to factum of adoption which took place on 7.2.1988 when giving and taking ceremony was allegedly performed between the natural parents and adoptive parents. Petitioner’s date of birth is 2.7.1987 meaning thereby, she was adopted when she was about 08 months of age. Adoption deed has neither been challenged by any person nor disputed by the State. Section 16 of the Hindu Adoption and Maintenance Act, 1956 creates a legal presumption in favour of a registered document relating to adoption. This section reads as under:- “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 in compliance with the provisions of this Act unless and until it is disproved.” Apart from the legal presumption in favour of the instrument of adoption, the petitioner furnished sufficient information to the respondent- State to support her contention that she is the adopted child and adoption took place much prior to the retirement of the deceased govt. servant. Petitioner was admitted to Sharda Sarvhitkari Vidya Mandir Sector 40-D, Chandigarh in Class K.G. Section A. Progress report of the petitioner regarding her study in the said school has been placed on record as Annexure P-2. Thereafter, the petitioner studied in Sharda Sarvhitkari Model Senior Secondary School, Sector 40-D, Chandigarh wherefrom she passed her Middle Standard Examination-2001. A copy of Middle Standard Certificate dated 30.4.2001 has been placed on record as Annexure P-3. Petitioner, thereafter, appeared in the All India Senior School Certificate Examination 2005, a certificate dated 23.5.2005 has been placed on record as Annexure P-4. Identity card issued to the petitioner in the year 2009 has been placed on record as Annexure P-5. In all these documents, name of the petitioner’s parents is shown as Tej Singh, as father and Jasmer Kaur, as 4 CWP No.18921 of 2010 mother. Petitioner’s date of birth is mentioned as 2.7.1987. All these documents which have come into existence regular course from time to time and date back to the period prior to the retirement of Tej Singh indicate that the petitioner infact all along has been shown as the daughter of the deceased government employee. Even the service record of the deceased employee also reflects the name of the petitioner as his daughter. These documents could not have been created by the petitioner just for purposes of securing the pensionary benefits of the deceased govt. employee. Thus, there is abundance of evidence to establish that the petitioner has all along been treated as a daughter by deceased-Tej Singh and his wife Jasmer Kaur. These documents also establish the contents of the adoption deed relied upon by the petitioner. Thus, there is absolutely no confusion or doubt about the status of the petitioner as an adopted daughter of the deceased government servant. Adoption deed executed in the year 2002 is only in the nature of a declaration about the factum of adoption. Under Rule 6.17, the petitioner being one of the eligible person, is entitled to the family pension. This petition is accordingly allowed and the respondents are directed to grant family pension to the petitioner from the date she became entitled to. In view of the illegal withholding of the pension of the petitioner by the respondents on flimsy grounds, petitioner shall be entitled to interest at the rate of 6% from the date of her entitlement. Let the arrears of pension along with interest be calculated and paid to the petitioner within a period of two months. ( Permod Kohli ) Judge 16.03.2011 sd Whether to be referred to the reporter – Yes. 5