Bench:
Hon’ble Dr. Murtaza Ali, Hon’ble Ms. Praveen Mahajan
Appellant:
Shaukat Ali Son of Somu Khan
Respondent:
Union of India Through the General ...
Issue
I) Whether Muslim law permit adoption?
II) Whether the denial of appointment to the applicant’s son in terms of LARSGESS Schemeon the ground that there is no provision of adoption in Muslim Law is valid?
Facts
- Under Section 19 of the Administrative Tribunals Act, 1985; the original application has been filed for quashing the impugned order dated 25.09.2014 and seeking a direction for the defendant to consider the adoption deed for granting the advantage of LARSGESSScheme dated 01.01.2014 to the applicant.
- The applicant is working on the post of Key-man and he adopted Shekh Mohammad as his son vide registered adoption deed as per customs prevailing in the society. It has been affirmed that the applicant applied for an intentional retirement just for an appointment of his adopted son on compassionate grounds regards to the LARSGESS Scheme, 2014 but the defendants have wrongly dismissed his original application on the ground that there is no provision of adoption in Muslim Law.
- It has been admitted that the applicant preferred an application for expanding the benefit of Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff and prayed for the appointment of his adopted son Shekh Mohammed. It has also been argued that the application has appropriately been dismissed on the ground that Muslim Law doesn’t allow adoption.
Appellant’s Contentions
- On the behalf of the applicant that the customs of adoption are prevailing in his society and accordingly he adopted Shekh Mohammed as his son by a registered adoption deed dated 11.07.2012 (Annex. A/2). He also enclosed some other adoption deeds (Annex. A/3) executed by the other members of a community.
- Applicant depended upon the decisions of S.B.C.W.P. No. 5745/2006 Mukhtar Ahmed v. State of Rajasthan &Ors. and LRs of Alladeen v. B.O.R. &Ors reported in [2004] 0 Supreme (Raj) 689.
Respondent’s Contentions
- Learned Counsel for the respondents has argued that the benefit of LARSGESS Scheme cannot be stretched out to the applicant as the said adoption deed dated 11.07.2012 was got arranged distinctly to claim the benefit under the Scheme.
- The respondents likewise depended upon the judgment delivered in Shabnam Hashmi's case and furthermore contended that the topic of legitimacy of said adoption deed can't be gone by this Tribunal as it is not a service matter.
Judgment
The Court held that the original application had filed and the impugned order wasset aside and quashed. Considering the fact and circumstances of the case, there was no order as to costs.
Relevant Paragraphs
- S.B.C.W.P. No. 5745/2006 Mukhtar Ahmed v. State of Rajasthan & Ors. in which it was held by the Hon’ble Rajasthan High Court that if by virtue of customs, Muslims have a concept of adoption and if it has been proved as per the law, such adoption can be taken as valid adoption.
- In the case of Alladeen, the applicant claimed to be Khatedar of the land of the deceased being his adopted son. The trial court dismissed the suit but the Appellate Court held that the custom of adoption among Muslims of the space was prevailing and the adoption of the appellant was held legitimate. The matter went up to the Division Bench of the Board of Revenue and it was held that by virtue of custom, the Mohammadan like wise have the system of adoption and the Division Bench of the Board has additionally held that regardless of the fact that witnesses in their assertions have affirmed that the custom of adoption was prevalent in their community but in absence of independent witnesses the adoption was not acknowledged. The matter went up to the Supreme Court and Hon’ble Supreme Court while depending on the previous judgements has categorically held as under:
Undoubtedly, the Muslim Law in its pure form governed of Shariat or Hidaya does not perceive the principle of adoption. However, wherever there exists a custom amongst the Muslim community whether via a family custom or via a community custom or via a regional custom allowing adoption among Muslims, such adoption has been perceived by the courts in India.
- Accordingly, the Original Application is permitted and the impugned order dated 25.09.2014 is set aside and suppressed. The respondents are directed to look for the proof or evidence from the applicant in regard to the custom of adoption prevailing in his community and after fulfilling this impact, they are directed to reconsider the original application preferred by the applicant under LARSGESS Scheme within a period of three months from the date of receipt of this order. There is no order as to costs.
Click here to download the original copy of the judgement
