IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.45221 of 2002 V.Raja ...Petitioner Vs. 1.Secretary to Government, Rural Development Department, Secretariat, Fort St. George, Chennai-600 009. 2.Director of Rural Development, Saidapet, Chennai-600 015. 3.District Collector, Tirunelveli District, Tirunelveli-9. 4.Commissioner, Valliyur Panchayat Union, Tirunelveli District. ...Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records leading to the issue of G.O.Ms.No.(2D) No.68, Rural Development Department (E7) dated 16.07.2002 on the file of the first respondent and the consequential show cause notice made in N3/53913/2002, dated 31.8.2002 on the file of the third respondent and the proceedings in Na.Ka.No.A1/5232/02, dated 27.11.2002 on the file of the fourth respondent, to quash the same and to direct the respondents herein to regularize the services of the petitioner from the date of his appointment 05.07.1991. For Petitioner : Mr.K.Sridhar For Respondents : Ms.C.Devi, GA for RR1 to 3 Mr.C.K.Vishnupriya for R-4 O R D E R
This writ petition came to be posted before this Court on being specially ordered by the Honble Chief Justice vide order dated 25.03.2011.
2. The writ petition was filed by the petitioner, seeking to challenge the order of the first respondent State made in G.O.Ms.No.(2D)No.68, Rural Development Department dated 16.07.2002, dated 16.07.2002 and the consequential show cause notice dated 31.08.2002 made by the third respondent District Collector, Tirunelveli and the proceedings dated 27.11.2002 made by the 4th respondent, the Commissioner of Valliyur Panchayat Union.
2. By the impugned order dated 16.07.2002, the third respondent was directed to issue a show cause notice and after getting appropriate explanation was directed to cancel the appointment of the petitioner. Pursuant to the said direction issued by the State Government, the District Collector issued the Show Cause notice dated 31.08.2002 asking him to explain as to why his services could not be terminated. He was informed that the petitioner was taken on adoption by late R.Meenal, who was working as maternity Ayah under the Nanguneri Panchayat. It was claimed that the adoption was not registered as per law and therefore, the petitioner could not have claimed appointment on compassionate grounds on account of the death of his adoptive mother. The said claim was contrary to G.O.Ms.No.2899 Labour and Employment Department, dated 23.12.1988.
3. On receipt of the said show cause notice, the petitioner sought for copies of the G.O.Ms.No.2899 dated 23.12.1988 and G.O.Ms.No.(2D)No.68, dated 16.07.2002. When the petitioner was reminded by the 4th respondent about his not having submitted his explanation vide memo dated 27.11.2002, the petitioner moved this Court challenging the show cause notice issued pursuant to the direction by the State Government.
4. The writ petition was admitted on 17.12.2002. Pending the writ petition, this Court granted an interim stay of the show cause notice. Subsequently, when the matter came up on 18.09.2003, this Court found that since the stay order has been in force for more than 9 months, it was not necessary to vacate the said order and the stay was made absolute.
5. Thereafter, the third respondent District Collector, had filed a counter affidavit dated 04.01.2004.
6. The facts leading to the filing of the case were as follows:
The petitioners aunt (fathers sister) R.Meenal was working as a Maternity Ayah under the Nanguneri Panchayat. While she was in service, on 21.07.1974 she had adopted her nephew, (the present petitioner) as her son. It was claimed that necessary customs and rituals were followed while adopting the petitioner. The petitioners biological parents also gave him in adoption to R.Meenal. The said Meenal also had executed a registered Will on 03.03.1988, wherein, she had clearly mentioned that the petitioner was her adopted son. Unfortunately, she died on 31.03.1988 leaving her adopted son as the only legal heir. The petitioner had also obtained a legal heir certificate from the Tahsildar, Nanguneri Taluk. In that certificate dated 27.07.1990, the name of the petitioner was indicated as the adopted son of late R.Meenal.
7. The State Government had issued G.O.Ms.No.225 Labour and Employment Department, dated 15.02.1972 as well as G.O.Ms.No.560 Labour and Employment Department, dated 03.08.1977 that adopted children were also entitled for appointment on compassionate grounds.
8. The petitioner requested the District Collector, Tirunelveli, to grant him appointment on compassionate grounds as an Office Assistant in the 4th respondent Panchayat Union. After verification of records and making oral enquiries as well as calling for a report from the Tahsildar, getting affidavits from elders and relatives in the locality, the third respondent by an order dated 05.07.1991 appointed the petitioner as an Office Assistant in the 4th respondent Valliyur Panchayat Union. His appointment was also approved by the Panchayat Union Council.
9. Thereafter, on the basis of his seniority and qualification, the petitioner was promoted as a Rural Welfare Officer Grade II and posted to work at Kalakkad Panchayat Union vide order dated 06.04.1993. The petitioner’s name was sent for regularization to the Director of Rural Development, Chennai, the second respondent herein. The second respondent forwarded those proposals to the first respondent for approval. However, the first respondent by proceedings dated 23.10.1996 directed the second respondent to terminate the service of the petitioner on the ground that his appointment on compassionate ground on account of the death of late R.Meenal was irregular. The third respondent issued an order of termination dated 11.12.1996, terminating the service of the petitioner.
10. The petitioner filed an original application before the State Administrative Tribunal being O.A.No.457 of 1997. The Tribunal by its order dated 26.03.1997 held that since no notice was given before termination, the order passed by the respondents was illegal and therefore, it set aside the order of termination and directed reinstatement of the petitioner.
11. Subsequent to the order passed by the Tribunal, the third respondent vide order dated 19.07.1997 restored the petitioner to service in the post of Junior Assistant in an existing vacancy. Subsequently, further proposals were sent for regularization, wherein, the third respondent informed that the adoption of the petitioner by late Meenal was proper as per the village custom. His mother earlier had divorced her husband as per the village customs on 20.03.1949. Thereafter, she did not get re-married. It was subsequently, she had adopted her eldest brothers last son (petitioner) on 21.07.1974 as per the Hindu Rites. An affidavit to that effect was also obtained from the near relatives. When the opinion of the Government Pleader at Chennai was sought, it was opined that a final order can be passed on the basis of the decision of the District Collector.
12. The Commissioner for Panchayat Union, Kalakkad also recommended the case of the petitioner stating that he was the lawfully adopted son of late Meenal. The petitioners mother was a divorcee as per the customary Hindu rites. That adoption was made in terms of Section 8(c) of the Hindu Adoption and Maintenance Act. Proposals were also forwarded by the Director of Rural Development vide its recommendation letters dated 24.08.2000 and 09.06.2001.
13. However, the State Government issued the impugned proceedings in G.O.Ms.No.(2D)No.68, Rural Development Department, dated 16.07.2002 and referred to the order of the State Government in G.O.Ms.No.2899 Labour and Employment Department, dated 23.12.1988. It was stated in that order that if the adopted children fulfill the conditions of registration and other conditions, they can be considered for grant of employment assistance on compassionate ground. Even if the adoption was done as per the customary law and that was a legal presumption of adoption, the compassionate appointment can be granted only if the adoption was also registered. Therefore, since the adoption of the petitioner was not registered, he was not eligible for employment assistance on compassionate ground. It was pursuant to the direction issued by the State Government, the third respondent District Collector issued the impugned show cause notice dated 31.08.2002, which is challenged in this writ petition.
14. Mr.K.Sridhar, learned counsel for the petitioner contended that registration of adoption is not compulsory under the Hindu Adoptions and Maintenance Act, 1956 (for short HAMA). If there is a valid adoption, that should be accepted by the Department because an adopted child is entitled for all privileges of the adoptive mother in terms of Section 12 of HAMA. It was also contended that the respondents cannot revive an issue which was considered 12 years before the date of filing of the writ petition. The learned counsel also produced a copy of the decree issued by the Additional District Munsif Court, Nanguneri in O.S.No.164 of 2006, wherein the petitioner was declared as the adopted son of late R.Meenal. The declaratory decree dated 14.10.2006 was also produced.
15. In the counter affidavit filed on behalf of the third respondent, District Collector, a further stand was taken that there was no valid proof that the petitioner’s adoptive mothers marriage was legally dissolved and that any adoption done without the consent of her husband was invalid under Sections 6 & 8 of the HAMA. It was further stated that under G.O.Ms.No.2899 dated 23.12.1988, that the eligibility for compassionate appointment on the ground of adoption will arise only when a registered document is produced.
16. Though in the show cause notice dated, 31.08.2002, the District Collector had only mentioned about the non-registration of the adoption as the only ground for disqualification, but in the counter affidavit, in paragraph 9, a further ground was raised about the dissolution of the marriage of the petitioners adoptive mother not being proved. This reason is not found either in the Government order impugned in the writ petition or in the show cause notice issued by the third respondent. In any event, the claim made by the petitioner was that the dissolution of marriage had taken place as per the customary rites even as early as 20.03.1949 as evidenced from the communication sent by the District Collector dated 08.04.1999 addressed to the Director of Rural Development. The dissolution of the marriage had taken place before the enactment of Hindu Marriage Act, 1955. Under Section 29(2) of the Act, it is declared that nothing contained in the Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of the Act.
17. Therefore, it is too late in the day to question the dissolution of marriage of the petitioners adoptive mother which took place before the commencement of the Hindu Marriage Act, 1955. That was why rightly the State Government in the impugned order did not refer to the issue of lack of legal capacity of the petitioners adoptive mother in having gone in for an adoption. Further, once the marriage of the petitioners adoptive mother does not exist, then under Section 8 of the Act, a female Hindu is entitled to adopt a son. The further clarification made under the proviso to Section 8 is not attracted. As the petitioners adoptive mother is a divorcee, the question of seeking consent of her former husband did not arise. The present employment assistance is only on account of her death while in service.
18. Under Section 16 of the HAMA, registration of the adoption is not compulsory. If a registered document is produced as proof of adoption, then Section 16 of the HAMA draws a presumption in favour of adoption but that presumption is a rebuttable presumption. Onus is heavily upon the person who challenges an adoption to prove that there was no adoption. If HAMA does not require a compulsory adoption and if there is a valid adoption made in terms of Chapter II of the HAMA, then the adopted child as per Section 12 shall be deemed to be the child of the adoptive mother and was entitled to succeed to the estate of the adoptive mother.
19. In the present case, the only reason for disqualifying the petitioner from being denied the employment assistant is on the condition placed by the State Government vide G.O.Ms.No.2899, dated 23.12.1988. In paragraph 2 of the said Government order, it was stated as follows:-
“2. Employment assistance on compassionate grounds is provided with a view to give immediate relief to the family of deceased Government servant after taking into account the indigent circumstances of the family prevailing at the time of death of the Government servant. Though the adoption made and registered by the widow after the death of the Government Servant may be valid in law, adopted member was not a member of the family of the deceased Government servant at the time of the death of Government Servant. If employment assistance is provided to a person adopted after the death of the Government servant it would only encourage to circumvent the orders governing the scheme and derive unintended benefits under the above scheme. It is therefore, clarified that the legally adopted son/unmarried adopted daughter of the deceased Government servant is eligible for compassionate appointment only if the adoption was made and registered by the deceased Government servant during the life time of the Government servant and also subject to other conditions prescribed by the Government for such compassionate appointment being fully satisfied.”
(Emphasis added)
20. From the above passage, it is clear that the anxiety of the Government was to prevent bogus claims of persons to claim privileges of a deceased government servant on the basis that they were the adopted children of that servant. It must be noted that the aim of the Government was to assist even an adopted child on par with a biological child in the matter of granting employment assistance on compassionate grounds. If that is the dominant aim of the Government, then the requirement to produce proof should be based upon the Personal Laws of the said government servant. It will be a dichotomy if the government grants employment assistance to a person who produces a registered document which only provides for a presumption and not a legal foundation to get an employment but on the other hand, if a person who is validly adopted as per Law and deemed to get all privileges conferred under Section 12 will be denied only on the procedural requirement of not having done the registration being denied the employment assistance. It can never be the intention of any rule maker. While undoubtedly, the Government should ward off any bogus or false claims on this account, yet they cannot deny the legitimate demand of an adopted child in claiming the privileges attached to the office of their adoptive parents. The Government Order emphasises more on the registration of the document while the government servant is still in service and not after he leaves the service. In the present case, the adoption was done while the late Meenal was very much in service. Technically, the Government Order will not apply to the case of the petitioner.
21. The HAMA do not prescribe registration of an adoption as a mandatory requirement of law. It is more or less on par with Hindu Marriage Act, 1955 which so far had not made the registration of marriage as a compulsory requirement under law though the present day law makers are toying with the idea of making the registration compulsory. In case of government servant, who gets married either before or after entering in the service, they do not require a registered certificate of marriage as a proof of marriage. Mostly, the Government will be satisfied with a declaration given by the Government servant regarding his marital status. It is only in case of any dispute, further requirement of asking a legal proof of such marriage will be sought for. It is not clear as to why the Government in the case of adoption should adopt a different yardstick of seeking for a registered document of adoption when that by itself is not a legal proof of adoption in terms of HAMA.
22. Infact Section 16 of HAMA only makes a presumption of valid adoption subject to a rebuttal evidence being produced to deny the existence of the adoption. Section 16 of HAMA came to be considered by the Supreme Court vide its judgment in Jai Singh v. Shakuntala reported in (2002) 3 SCC 634. The Supreme Court in that case held that the HAMA had allowed some amount of flexibility, otherwise the proof of adoption will be solely depend on a registered adoption deed. It is necessary to refer to the following passages found in paragraphs 1,2 and 8.
“The matter under consideration pertains to the effect of statutory presumption as envisaged under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. For convenience sake, it would be worthwhile to note the provision for its true purport. Section 16 reads as below:
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.
2. The section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. Mandate of the statute is rather definite since the legislature has used shall instead of any other word of lesser significance. Incidentally, however, the inclusion of the words unless and until it is disproved appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words unless and until it is disproved shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive depicting therein that the presumption cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above. In the wake of the aforesaid, the observations of the learned Single Judge in Modan Singh v. Sham Kaur1 stand confirmed and we record our concurrence therewith.
8. The issue thus arises as to whether the High Court was justified in laying emphasis on the conduct of the adopted son. As noticed hereinbefore the presumption is a rebuttable presumption. While it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the court is not precluded from looking into it upon production of some evidence contra the adoption. Evidence, which is made available to the court for rebutting the presumption, can always be looked into and it is on production of that evidence that the High Court has recorded a finding of non-availability of the presumption to the appellant.
23. Therefore, even in the absence of a registered document, which are required for proving an adoption, the District Collector supported by the Director of Municipal Administration had recommended the case of the petitioner after obtaining reports from various quarters. The petitioner is being non-suited only on the ground of non-registration and not on the basis of there being no valid adoption of the petitioner by his adoptive mother. Even in the counter affidavit, the same stand was taken. The District Collector was mandated by the Government to deny the petitioners employment only on account of non-production of the registered document.
24. On the other hand, the petitioner had produced a registered Will executed by the late R.Meenal dated 03.03.1988, wherein she had bequeathed all her properties only to the petitioner, being the adopted son. Subsequently, the petitioner also obtained a decree from the competent civil court in O.S.No.164 of 2006 dated 14.10.2006. Though the decree was obtained subsequent to the proceedings, nevertheless, the said document is a valid proof of the petitioner being adopted by his adoptive mother.
25. A similar question regarding grant of compassionate appointment in favour of an adopted son on the basis of deed of adoption deed produced as a valid proof of adoption came to be considered by the Supreme Court vide its judgment in Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram reported in (1999) 5 SCC 673. In paragraphs 3 and 4, the Supreme Court observed as follows:-
“3. The respondent had applied for appointment on compassionate grounds. He claimed that he was the adopted son of a deceased employee Bansrajia Devi who had died on 6-9-1989. Learned Single Judge of the High Court dismissed the petition of the respondent. However, in letters patent appeal, the High Court has granted relief to the respondent.
4. The respondent claimed that he was the adopted son on the basis of a deed of adoption dated 28-2-1989. It is said to have been executed seven months before the deceased died. In the impugned judgment, the High Court appears to have proceeded on the basis of a presumption relating to the validity of the adoption deed under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. Under Section 16 of the Act, if any document registered under any law for the time being in force is produced before any court purporting to record the 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. In the present case, the deed of adoption is not signed by any person giving the child in adoption. The copy which is produced before us does not indicate that this is a registered deed of adoption. Therefore, no presumption under Section 16 could have been drawn relating to the validity of the adoption. There are no facts on record showing whether on the date of adoption, the respondent was under the age of 15 years. There are also no facts on record to show whether the husband of the deceased was alive on the date of the adoption. If so, the adoption would have had to be made by the husband with the consent of the deceased. In the absence of any material, we are, therefore, not pronouncing on the validity or otherwise of the adoption. Therefore, the basis on which the High Court has proceeded cannot be sustained and the appellants cannot be faulted for not acting on the basis of the adoption deed. Secondly, by a standing order dated 21-4-1993 the appellants had withdrawn the benefits, if any, under the scheme for appointment on the compassionate grounds in the case of an adopted son.”
(Emphasis added)
26. In the aforesaid case, it can be seen though a Deed of Adoption was produced, the requirement for a presumption in terms of Section 16 was not complied with. In that case, since it was not a registered document, it was held that there cannot be any presumption of adoption. But the Court did not pronounce on the validity of the adoption as no other materials were available.
27. Unlike in Chhathu Ram’s case (cited above), in the present case, the petitioner had produced enough proof for having been validly adopted by his late adoptive mother R.Meenal. Considering all these materials, the third respondent had appointed him to the post of Office Assistant. Subsequently, he had been promoted and working as Rural Welfare Officer Grade II. The only ground in which he is being non-suited was non-registration of adoption made by his adoptive mother, but that is not a legal document required to prove adoption and he had also produced documents subsequently, including Civil Court decree.
28. Considering the fact that the petitioner had been in employment for the last 20 years, it is not a fit case where the respondents can be allowed to terminate the services of the petitioner. Hence, the writ petition stands allowed, the impugned order stands set aside. The respondents are hereby directed to regularize the service of the petitioner with all consequential benefits. A decision to this effect shall be taken by the respondents within a period of eight weeks from the date of receipt of the order. No costs.
svki
To
1.Secretary to Government,
Rural Development Department,
Secretariat,
Fort St. George, Chennai-600 009.
2.Director of Rural Development,
Saidapet, Chennai-600 015.
3.District Collector,
Tirunelveli District,
Tirunelveli-9.
4.Commissioner,
Valliyur Panchayat Union,
Tirunelveli District