BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/04/2010
CORAM
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.(MD)No.4324 of 2010
B.Dharmarajan .. Petitioner
Vs
1.The District Educational Officer,
Thanjavur.
2.The District Elementary Educational
Officer,
Thanjavur.
3.The Assistant Elementary Education
Officer,
Kumbakonam,
Thanjavur District. .. Respondents
Prayer
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Mandamus, directing the 1st and 2nd
respondents herein to consider the petitioner's application dated 05.01.2001 for
compassionate appointment for any of the suitable post.
!For Petitioner ...Mr.R.A.S.Anandaraj
^For Respondents...Mr.R.Manoharan, G.A.
:ORDER
Mr.R.Manoharan, learned Government Advocate takes notice on behalf
of the respondents.
2. By consent, the main writ petition itself is taken up for final
disposal.
3. The petitioner is stated to be an adoptive son of one
Mrs.Ranjitham, who worked as a permanent Craft Teacher in Thippirajapuram Union
Middle School, who died on 15.03.1998 while in service. It is the case of the
petitioner that when the petitioner was 16 years old, he was adopted by said
Ranjitham in a registered deed of Adoption dated 24.07.1995 and the document
also speaks about the factum of giving adoption and taking adoption.
Thereafter, he was brought up by said Ranjhitham, to whom legal heir certificate
is issued as her adopted son. It is also stated that after the death of his
mother on 15.03.1998, the respondents have paid the monetary benefits due to her
like family pension etc. by accepting the petitioner is the adopted son of the
said deceased Ranjitham based on the registered document.
4. Be that as it may, when the petitioner has made an application
for compassionate appointment, which was made on 05.01.2001 within three months
from the date of death of his mother, the said petition was not considered due
to the reason that there was a ban of recruitment. After the ban was lifted,
the petitioner has made representation on 10.07.2008, by way of renewing his
earlier application dated 05.01.2001 and the same came to be returned by the
District Educational Officer, the 1st respondent as it is seen in the internal
annexure between the 1st and 2nd respondents dated 20.10.2009, copy of which has
been forwarded to the petitioner. The two reasons, which are assigned in the
said communication, are that (i) as per G.O.Ms.No.120, dated 26.06.1995, any
application for compassionate appointment should be made within a period of
three years from the date of death of the parents and that ground has been taken
on the basis that the copy of original application said to have been filed by
the petitioner on 05.01.2001 has not been enclosed (ii) the date of registration
of the adoption deed is 27.07.1995 and the date of birth of the petitioner is
30.06.1979 and since petitioner is more than 15 years on the date of
registration, it required an order from the competent civil Court.
5. After the said order was communicated to the petitioner, the
petitioner has replied on 05.03.2010 stating that the original document for
appointment on compassionate ground was given on 05.01.2001, which is stated to
be within three years from the date of death of the mother. On a reference to
the application, which has been returned by the 1st respondent, it is seen that
the application for compassionate appointment was made on 05.03.2001 and that
has been acknowledged by the 1st respondent by the official seal dated
08.01.2001. In the said representation, while dealing with second aspect, the
petitioner has stated that even though there is a difference of age in 15 years
from that of the mother and the petitioner, the adoption is permissible as per
the family custom and therefore the petitioner has requested that his
application has to be considered for compassionate appointment.
6. It is the contention of the learned counsel appearing for the
petitioner that while it is true that after the death of the petitioner’s mother
by recognizing the petitioner as her legal heir for the purpose of monetary
benefits like family pension etc., the family pension was paid, of course on the
basis of the registered document. But, as far as the claim of compassionate
ground is concerned, necessarily the petitioner has to substantiate his case
through proper documents especially when the petitioner taken a stand in his
representation dated 05.01.2001 that such adoption is permissible under family
custom. Custom being a fact, it has to be decided on evidence, it is for the
petitioner to prove the same before the Court. Even though, it is stated that
in cases, where there is a difference of 15 years age between the adoption
person and the adoptive child, it shall not be more than 15 years and if so, it
would be recognized by a competent civil court, even a section stipulated under
Section 11 of the Hindu Adoptions and Maintenance Act, 1956 in sub clause 4,
which deals that adoption by a female shows that if the different of age between
the adoptive mother and the child is more than 21 years, such adoption cannot be
valid under law. Section 11(iv) of the Hindu Adoptions and Maintenance Act,
1956 is as follows:
“if the adoption is by a female and the person to be adopted is a
male, the adoptive mother is at least twenty-one years older than the person to
be adopted.”
7. On the facts of the present case, I do not see any reason to come
to a conclusion that the relationship between the adoptive mother and the
petitioner is under the prohibited relationship or restricted age factor as it
is stated under Section 11 read with Section 8 of the Hindu Adoptions and
Maintenance Act, 1956 which deals with the capacity of a female to take
adoption. There is no difficulty to come to a conclusion that there cannot be a
different yardstick for the purpose of accepting the person as an adoptive son
for payment of pensionary benefits and the appointment of compassionate ground.
On the admitted fact that the petitioner has been recognized as an adopted son
of Mrs.Ranjitham and the pensionary benefit has been made to him, now the
respondent department has taken a different stand based on the representation
dated 05.01.2001 where it has been stated that in his family custom, such
adoption of a boy, where the age itself is more than 15 years between the mother
and the boy is permissible and therefore such fact has to be proved in a
competent civil court.
8. The learned counsel appearing for the respondent would submit
that as far as the first point regarding the application being made within 3
years from the date of death of the petitioner’s mother is concerned, there is
no difficulty to accept the same. But as far as the second point is concerned,
the application of the petitioner will be considered on an undertaking given by
the petitioner to the department that he would take necessary steps to obtain
the order from the competent civil court about the factum of adoption.
9. In such view of the matter, the writ petition stands disposed of
with a direction to the 1st and 2nd respondents to consider the application of
the petitioner dated 05.01.2001, if the same is represented by the petitioner
within a period of one week from the date of receipt of a copy of this order and
to process the said application for considering the petitioner for compassionate
appointment subject to his educational qualification and other eligibility for
the concerned post, without insisting about the first point that the application
was not within three years and as far as the second requirement is concerned,
the petitioner is directed to approach the civil court on obtaining an
undertaking from the petitioner that he would get necessary orders from the
civil court and such application should be process on fulfillment of the said
condition and final orders passed within a period of 12 weeks from the date of
receipt of a copy of this order.
10. This writ petition is ordered accordingly. No costs.
arul
To
1.The District Educational Officer,
Thanjavur.
2.The District Elementary Educational
Officer,
Thanjavur.
3.The Assistant Elementary Education
Officer,
Kumbakonam,
Thanjavur District.