MANGESH S TANDLEKER Vs. UNION OF INDIA

JUDGEMENT

(1.) Sahdev Tendulkar, Class IV employee, working as P/Jamadar in Railways, died on 5-2-2001 due to cardiac arrest because of lot of strain in service at the age of 58, leaving behind him his widow and only one adopted son Shri Mangesh-present petitioner. His widow Manorama was above 50. Therefore, on the death of Sahdev Tendulkar, his adopted son Mangesh-present petitioner applied on 26-3-2001 to the Divisional Railway Manager, Western Railway, Baroda, for giving him appointment on compassionate ground (Annexure J ). Widow Manorama could not bore the shock of untimely death of her husband and suffered stroke of paralysis on the left side of her body. As no appointment on compassionate ground was made though period of one year expired after present petitioner-Mangesh applied, a letter dated 17-4-2002 was addressed by the union to the authority (Annexure K), for giving appointment on compassionate ground in Group D category. Since 2001 widow Manorama is almost bed-ridden because of the stroke of paralysis. Meager amount of pension is spent for her treatment. Except the present petitioner, there is no-one else in her family to look after her. The petitioner is unemployed and both of them i.e. petitioner and his widow mother are living in a almost indigent condition. As they had no other accommodation, therefore, widow Manorama applied for retention of the quarter allotted to her husband and the authority was kind enough to grant two years' time to retain the quarter on normal rate by a letter dated 18-6-01 (Annexure M). However, on completion of the period of two years, they had to vacate the quarter and at present residing in a hutment area as stated at the bar by Mr. Handa for the petitioner. The authority had not considered the case of the petitioner for appointment on compassionate ground. Therefore, at first instance, the petitioner had approached Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad ( for short S the Tribunal) by way of O.A. 322 of 2002 which was disposed of by the learned Tribunal on 2-6-2002 with a direction to the authority to consider the case of the applicant-petitioner for appointment on compassionate ground sympathetically in light of the rules and regulations and the guidelines issued by the authorities on the subject from time to time and pass appropriate orders regarding the same within a period of four months from the date of receipt of copy of the order. It was also made clear that if the decision was adverse, then it would be open to the applicant-petitioner to challenge the same before the Tribunal by way of fresh O.A.

(2.) In view of the aforesaid order and direction issued by the learned Tribunal in O.A. No. 322 of 2002, speaking order dated 31-10-2002 was passed by Senior DPO-BRC rejecting the claim of the petitioner for appointment on compassionate ground as the authority was of the opinion that there was no valid adoption of the petitioner by late Shri Sahdev Tendulkar. For coming to this conclusion, the authority took into consideration both the adoption deeds produced by the petitioner. In first adoption deed dated 7-4-94 (Annexure A) the petitioner was shown aged 10 years and born on 17-7-84, whereas in subsequent deed dated 8-9-97 (Annexure B) the petitioner was shown aged 15 years and born on 27-4-82. First adoption deed (Annexure A ) was executed at Bombay in the State of Maharashtra, whereas second deed was executed at Baroda in the State of Gujarat. Admittedly birth date and age of the petitioner in both the deeds were different. Therefore, the authority was of the opinion that the applicant had not come before it with clean hands regarding his correct birth date. When this fact regarding discrepancy in his birth date was brought to the notice of the petitioner by the authority, than an explanation was tried to be offered by the petitioner before the authority that in reality subsequent deed of 1997 (Annexure B) was not the adoption deed, but it was merely a correction in the birth date before the Notary and in fact, he was already adopted in 1994. However, said explanation offered by the petitioner was not found to be plausible, and therefore, not accepted by the authority. In support of his case, the petitioner had also produced his school leaving certificate showing his birth date of 1982, but the same was not accepted by the authority on the ground that the claim of the petitioner was based on fraud. Accordingly, the authority rejected the application for appointment on compassionate ground as it was of the opinion that as per second adoption deed, the petitioner was above 15 when he was adopted by his father Sahdev Tendulkar (Annexure O).

(3.) As per the liberty reserved earlier by the learned Tribunal, the petitioner once again approached the Tribunal by way of O.A. No. 7 of 2003 which was dismissed by the learned Tribnal by its impugned judgment and order dated 16-12-03 (Annexure P ), for the reasons recorded in it, which is challenged in this petition by the petitioner. From the impugned order (Annexure O ), passed by the Senior DPO-ERC, it is clear that the authority was of the view that the adoption was not legal and that there was a discrepancy in the birth date of the petitioner. From the impugned order (Annexure P ), passed by the learned Tribunal, it appears that the learned Tribunal rejected the application of the petitioner on the following grounds.