JUDGMENT
1. This writ petition is in respect of compassionate appointment. The petitioner claims to be the adopted son of late Sane Munilakshmamma. His adoptive mother Smt. Sane Mtinilakshinamma was employed as Sanitary Worker in the Health Department, Tirurnala Tirupali Devasthanams, Tirumala. She died in harness on 7-1-1991 leaving the petitioner behind as her sole heir. According to the Rules of Andhra Pradesh State Government applicable to the employees of Devasthanams, there is a provision for appointment of the spouse of the deceased Government servant or dependent children of the deceased Government servant who died in harness, as a social security measure. By G.O. Ms. No,687, General Administration (Ser-A) Department, dated 3-10-1977, it was clarified that the appointment of a spouse or child of the deceased Government servant could also be considered for regular appointment without subjecting them to the normal process of recruitment provided such family member of the deceased servantsatisfies other conditions of recruitment prescribed in the Rules, such as, age and educational qualification.
2. The petitioner submitted a representation dated 11-7-1991 consequent upon the death of his adoptive mother to the respondent to consider his case for appointment on compassionate ground. However, by memo dated 7-8-1991. the petitioner was informed as follows:–
“Sri K. Devarajulu, adopted son of late Smt. 5. Munilakshmamma, sweeper, Health Office, TTDS, Tirumala, is informed that as per clarification issued by the Government of A.P., in their Memo.No.518/Services-A/78-11, dated, 17-12-1979, adopted children of deceased employee are not eligible for compassionate appointment”
3. The petitioner, however, disputed the stand taken by the respondent that adopted sons could not be treated as the ‘sons’ entitled to appointment on compassionate grounds. Further, according to the petitioner, consequent upon his adoptive’s mother death he became destitute as he had no other source of income or landed property for his subsistence. Perhaps, according to the petitioner, since the Govt. Memo.No.618/Ser-A/79-ll of the General Administration (Ser-A) Department, dated 17-12-1979 explaining that the adopted child of the deceased employee did not fall under the definition of child in terms of the G. O., providing for appointment to the spouse or child of the deceased Government servant, the benefit of compassionate appointment to which he was entitled was unlawfully denied to him.
4. The petitioner further points out that under Section 12 of the Hindu Adoption and Maintenance Act, 1956, it is clearly specified that-
” An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to besevered and replaced by that created by the adoption in the adoptive family.”
5. From the above provision of law it is undoubtedly clear that the present petitioner in his capacity as the adoptive son of the employee of the respondent who died in harness is entitled to claim appointment on compassionate ground if he otherwise was eligible, in view of the fact that such child is to be considered, for all purposes, as the child of the adoptive father or mother with effect from the date of adoption It is also pertinent to note that such child from such date is deemed to be have severed all lies with the family of his/her birth. This would mean that in a situation where the natural father or mother died in harness their child if adopted by any other family would not be entitled to claim appointment on compassionate grounds if any one of the natural parents died in harness. At the same time, if such child is to be treated as not entitled for appointment on compassionate grounds consequent upon the death of his adoptive father or mother in harness, he would lose the opportunity of appointment on compassionate grounds in both the above situations, which certainly cannot be the intention of the Legislature.
6. The counter affidavit filed by the respondent comes up with a contention that the management was neither informed by the deceased at the time of her joining in TTD Service that she had an adopted son nor she had declared the petitioner as her nominee. It is further contended by the respondent that the adoption deed was registered on 4-9-1990 while the employee died on 7-1-1991 i.e., only four months prior to her death. But even at this stage she did not inform the management about the alleged adoption. The employee infact nominated her daughter Kum S. Kalavathi, as her nominee to receive the Welfare Fund, Group Insurance Scheme, Death-cum-Retirement Gratuity, etc. and she did not nominate the petitioner as her adopted son. No material is also available on the record of the respondent to show that the petitioner was adopted as the son of the deceased employee. Further, according to, therespondent GO. Ms. No.612, dated 30-10-1991 the adopted son or daughter of the deceased Government servant would considered for appointment if the adoption had taken place legally atleast five years prior to the date of demise of the Government servant. But, in the instant case, there was nothing to show that the petitioner was adopted five years prior to the date of the employees demise. Further, according to the respondent, the scheme to provide compassionate appointment to the adopted son or daughter could only have the prospective effect ie., from 30-10-1991 and not the retrospective effect, and, therefore, even if 4-9-1990 on which the adoption deed was registered is treated as the date of adoption, G.O.Ms.No.612, dated 30-10-1991 could not be treated as producing any positive effect on the right of the petitioner to be appointed on compassionate ground as the adoptive son of the deceased employee.
7. The learned Counsel for the petitioner drew my attention to the decision of this High Court in W.P.No. 13205 of 1991 decided by learned Judge Shri Justice P.L.N.Samma (as he then was) dated 17-12-1991 in which the afore-said G.O.Ms.No.612, dated 30-10-1991 issued by the Government of Andhra Pradesh fell for consideration and while analysing the, said G.O, the learned Judge observed that the procedure to be followed in providing immediate permanent relief to the family of a Government employee who dies in harness by appointing his/her son/ daughter/spouse without the media of employment exchange took any adopted son or daughter of the deceased Government servant was an improvement over the earlier memo, but the 2nd respondent stated in its order that the petitioner could not be termed as a ‘child’ as per the rules governing the compassionate appointments. However on the basis of the afore-said order, the Government itself recognised that the adopted son or daughter of the deceased Government servant could be considered for appointment on compassionate grounds, but with a rider that the adoption should have taken place legally atleast five years prior to the date of demise of the Government servant. The learnedJudge held that this rider was not sustainable and, therefore, could not be given effect to. The learned Judge directed the respondents to appoint the petitioner on compassionate grounds as an Altender within a period of six weeks from the date of receipt of his order.
8. In the present case, the petitionerlaims that he was infact adopted as the son by the deceased employee in the year 1983, but the adoption deed was registered subsequently on 23-8-1990 and, therefore, according to him, even if the condition as contained in the aforesaid G.O., that the adoption should have taken place five years prior to the date of demise of the deceased employee, the petitioner was still entitled to be appointed by the respondent on compassionate grounds. It is true that an averment has been made in the registered adoption deed dated 23-8-1990 that “about 7 years back K. Devarajulu, the natural son of 1 st party was given in adoption to the 2nd party, and the adopted son was physically kept under the care of 2nd party.” However, I am afraid, mere statement made in a document though registered, that the adoption had taken place 7 years prior to the date of actual execution of the adoption deed, not having been substantiated by any cogent and convincing evidence, cannot be accepted as a true statement on its face value. On the other hand, the fact that the petitioner’s name was not furnished as her nominee by the deceased employee for any purpose at any point of time gives a reason to believe that the adoption deed is executed with an oblique motive merely to secure employment on compassionate ground.
9. In the absence of any evidence to show that the petitioner was adopted in 1983 as submitted by the learned Counsel for the respondent during the course of arguments, the date on which the petitioner was rightly or wrongly, adopted could at best be 23-8-1990 when the adoption deed was registered. If 23-8-1990 is treated as the effective date of adoption and if the petitioner was aged 22 years as on 6-7-1993 (as stated in the cause title of the writ petition filed on6-7-1993), he would obviously be more than 15 years old on 23-8-1990 when the adoption deed was executed. It is one of the requirements of Section 10 of the Hindu Adoption and Maintenance Act 1956 that no person is capable of being taken in adoption unless the conditions as stated in the said Section are fulfilled, one of which as stated in clause (iv) specifies that –
“he, or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.”
The petitioner has, however, not taken any pains to establish that there was any custom or usage which permitted the persons who had completed the age of fifteen years also to be taken in adoption. With this situation in view the arguments advanced by the learned Counsel for the petitioner that the petitioner was adopted as son by the deceased employee cannot be considered to be reflecting the correct picture as the petitioner would have already completed 15 years of age on 23-8-1990 when the adoption deed was registered and, therefore, such adoption made after completing the age of 15 years cannot be upheld in law. It would thus appear that the questions involved in this writ petition are in the nature of disputed questions of fact and, therefore, no finding could be given regarding the eligibility of the petitioner to be considered for appointment on compassionate grounds as the adopted son of the deceased employee.
10. The Patna High Court on this question of Ihe eligibility of the adopted child to appointment on compassionate ground emphatically said in Kamal Ranjan v. State of Bihar, 1995 Lab I.C. 2562 that Section 12 of Hindu Adoptions and Maintenance Act (78 of 1956) conferred upon the adopted child the same rights and privilege in the adoptive family as the legitimate natural bom son or daughter for all purposes. The Patna High Court further held that it was well settled that where the statute enacted that somethingshould be deemed to exist or to have happened or some status should be deemed to have been lost or acquired on the happening of something, which could not otherwise have been so, the effect must be given to the statutory fiction and it must be carried to its logical conclusion and that in such a case, full effect must be given to the putative state of affairs and the status deemed to have been acquired or lost, as also to all the inevitable corollaries of the state of affairs or altered status, unless there was something in the statute which prohibited the legal fiction from being implied with its inevitable corollaries and the consequence.
11. With respect, there could be no quarrel with the aforesaid principle of law. However, in the case before us, since Ihe question of the petitioner’s adoption stands clouded with suspicion or assumes the character of a disputed fact, the writ petition fails not because the principle is not applicable but because the disputed status of the claim advanced by the petitioner cannot be adjudicated in exercise of the writ jurisdiction of this High Court, It is a question which is required to be adjudicated by the Civil Court-12. In the above view of the matter, the writ petition deserves to be dismissed as not maintainable and the same is accordingly dismissed. No costs.