Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) NO. 820 OF 2006 Ravindra Verma ………Petitioner. Versus District Magistrate, Almora …………...Respondent. Present: Mr. Virendra Kaparwan, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand/respondent. Date of Decision : 3.8.2010 Sudhanshu Dhulia, J. (Oral) 1. This writ petition has been filed by the petitioner primarily for quashing the order dated 22.5.2006 (Annexure – 9 to the writ petition) and also for a writ of Mandamus directing the respondent to appoint the petitioner on Class III post under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as “the Dying in Harness Rules”). 2. The case of the petitioner is that earlier he had filed a writ petition before this Court being Writ Petition (S/S) No. 1297 of 2005 Ravindra Verma Vs. D.M. Almora praying for a writ, order or direction in the nature of Mandamus commanding the respondent to consider the case of the petitioner for appointment under the Dying in Harness Rules on a Class III post. The petitioner builds his claim for such appointment on the basis of his assertion that he is the “adopted son” of late Shri Shiv Prasad, who was working on Class IV post as a “Weaver” with District Magistrate, Almora, who died in harness on 22.3.2002. The petitioner claiming to be the “adopted son” of the deceased, had filed a Succession Case No. 15 of 2002 before the Civil Judge (Sr. Division), Almora, for obtaining a succession certificate, which was decided in his favour on 18.11.2003. On the basis of that succession certificate, the entire amount as Gratuity, GIS, GPF and Leave Encashment was released in favour of the petitioner. Thereafter, on 15.4.2002, the petitioner submitted an application under the Dying in Harness Rules for appointment on a Class III post and continued filing representations. As nothing materialised in 2 favour of the petitioner, petitioner approached this Court by filing Writ Petition No. 1297 of 2005, which has already been referred above. While disposing of the aforesaid writ petition with the direction to the respondent i.e. District Magistrate, Almora to decide the representation of the petitioner for appointment under the Dying in Harness Rules, this Court observed as follows: “It is well settled that appointment on the compassionate ground is purely humanitarian consideration because of the fact that family will not be able to make both ends meet. The purpose of providing employment to the dependent of a Government servant dying-in- harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. Thus compassionate appointment is treated to alleviate the distress of the family.” 3. On the above observations and directions, the District Magistrate, Almora was directed to dispose of the representation of the petitioner. Consequently, the District Magistrate, Almora gave a hearing to the petitioner and after considering the directions of this Court under the aforesaid rules, as referred above, and taking into consideration other evidence adduced before him including the report of DGC, he came to the conclusion that the deceased Shiv Prasad during his service had married, though after sometime his wife left Shiv Prasad. Therefore, regarding the succession certificate, the District Magistrate, Almora came to the conclusion that the succession certificate has been obtained without disclosing this relevant fact. In fact, he has procured the post retirement benefits of the deceased without disclosing the relevant facts. He also came to the conclusion that considering the economic condition of the petitioner, it is not a fit case for appointment under the Dying in Harness Rules. 4. The Counsel for the petitioner has challenged the said order and has also prayed that he should be granted appointment under the Dying in Harness Rules. According to the petitioner, he is the “adopted son” of the deceased Shri Shiv Prasad, who was a Government Servant and died in harness on 22.3.2002. The law relating to appointment under the Dying in Harness Rules clearly does not make any distinction between a “son” or an “adopted son”. Therefore, in case the petitioner is the adopted son of the deceased, then he does have a claim for appointment 3 under the Dying in Harness Rules. In other words an adopted son would also be a “son” for the purposes of the Dying in Harness Rules. Yet, there is further question involved here which is whether at the given date of “adoption deed” which is 6.5.1998, the petitioner was capable of being taken in adoption? As per the records of the Writ Petition which is of the year 2006, when the Writ Petition was sworn, the deponent i.e. the petitioner had shown his age to be of 27 years. The adoption deed, which he is relying upon is of 6.5.1998. Therefore, the petitioner at the time of the execution and registration of the adoption deed was more than 15 years of age and therefore, at the relevant time (i.e. on 6.5.1998), he was not capable of being taken in adoption as per Section 10 of the Hindu Adoptions and Maintenance Act, 1956 as, inter alia, only a person who is less than 15 years of age can be taken in adoption. However, the counsel for the petitioner would say that the adoption deed is registered under Section 16 of the Hindu Adoptions and Maintenance Act and therefore there is a presumption in favour of the adoption deed. Section 16 of the Hind Adoptions and Maintenance Act, 1956 reads as under: “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.” 5. Although the above presumption under law is a rebuttable presumption, yet there is no material available on record which shows that the adoption deed has been disproved by any Competent Court of law. Though there are obvious anomalies in the adoption deed, such as the petitioner being more than 15 years of age at the time of his adoption yet this Court is not considering this issue on the above aspect. There is another aspect which has an important bearing in the case. This is as under: 6. For an appointment under the Dying in Harness Rules, the Appointing Authority must be satisfied that there is a “family” in hardship and destitute, as the main purpose for these appointments is to 4 meet the hardship of a family which needs to overcome the hardship it faces due to the death of its sole bread-winner. This Court fails to see any “family” in hardship in the present case, for whose benefit an appointment can be given under the Dying in Harness Rules. 7. The deceased Shri Shiv Prasad died on 22.3.2002 and according to the petitioner, he was unmarried, and has no other children. Therefore, apart from the petitioner there is no family which the deceased has left behind; no family except the petitioner who claims to be his “adopted son”. The entire aim of appointment under the Dying in Harness Rules is to meet the immediate financial hardship of the family, which has lost its bread-earner. The petitioner is admittedly a married person with his own family. Therefore, on the basis of the evidence available before this Court, this Court finds that there is no family, which is in distress or hardship, and therefore for this reason as well this Court finds no ground to interfere with the order of the District Magistrate, Almora, who has refused to grant appointment to the petitioner under the Dying in Harness Rules. The claim of the petitioner, therefore, fails. 8. The Writ Petition has, therefore, no merit and the same deserves to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 3.8.2010 Rathour