Kamal Ranjan vs The State of Bihar and Others

S.N. Jha, J.—The question involved in this writ application is whether an adopted son of the deceased Government servant dying in harness in the service of the State of Bihar is entitled to appointment on compassionate ground.

The facts of the case lie in a narrow compass. One Chemela Devi, employed as Ward Attendant at Dinara. State Dispensary in the district of Rohtas, died while in service on 7.9.78. According to the Petitioner, she being issueless has adopted him as her son in the year 1960, when he was seven years old, as per the Hindu custom and law with the consent of her husband, since dead. Upon the death of Chamela Devi the Petitioner submitted application for his appointment on compassionate ground on 8.11.78. The application was duly recommended for consideration by the District Compassionate Appointment Committee. He was called for interview. According to the Petitioner, he was found to be fit for appointment by the Committee and accordingly, by memo No. 1049 dated 30.10.87 the District Magistrate, Rohtas directed the Civil Surgeon to appoint him. However, the order of appointment was not issued. The Petitioner in the circumstances came to this Court in C.W.J.C. No. 4390 of 1991. The writ petition was opposed by the Respondents inter alia, on the ground that the Petitioner being adopted son of Chamela Devi is not entitled to appointment on compassionate ground in view of the circular of the State Government. This Court by its order dated 22.4.92 did not accept the said plea and directed the authority to re-consider the case of the Petitioner and issue appropriate order for his appointment on compassionate ground if he is otherwise found fit. The Compassionate Appointment Committee considered the matter and rejected the application on 19.9.92 on the same very ground, that is, appointment of an adopted son on compassionate ground is not permissible under the circular of the Personnel & Administrative Reforms Department dated 15.10.91. The present application was initially filed for initiating contempt proceeding against concerned officers. It was later converted into an application under Articles 226 & 227 of the Constitution on 15.9.93.

No counter affidavit has been filed on behalf of the Respondents. Government Pleader No. 1, however has reiterated the plea regarding impermissibility of appointment of the Petitioner on compassionate ground.

Section 12 of the Hindu Adoption and Maintenance Act, 1956 provides complete answer to the question. The section in its material part reads as follows:

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 be severed and replaced by those created by the adoption in the adoptive family.

The provision confers upon the adopted child the same right and privileges in the adoptive family as the legitimate natural born son or daughter for all purposes. The primary and principal result of the adoption is that the adopted boy or girl gets transferred from his or her natural family into the adoptive family for all intents and purposes. All ties "in the family or his or her birth are severed and replaced by those created by adoption in the adoptive family. It is well settled that where the Statute enacts that something shall be deemed to exist or to have happened or some status shall be deemed to have been ''lost or acquired on the happening of something, which would not otherwise have been so, effect must be given to the statutory fiction and it must be carried to its logical conclusion. 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 is something in the statute which prohibits the legal fiction from being implied with its inevitable corollaries and the consequence. Subject to this qualification, that which is deemed to have taken place is to operate for all purposes. The effect of adoption as indicated hereinbefore as the general rule is, of course, subject to the qualification as laid down in provisos appended to the Section, which it is not necessary to go into for the purpose of deciding the point in issue in this case.

It is, thus difficult to accept the plea of the Respondents that an adopted son or daughter of a deceased Government employee dying in harness is not entitled to appointment on compassionate ground. Any stipulation to the contrary as contained in the circulars of the Personnel & Administrative Reforms Department dated 15.10.91 must be held to be illegal and arbitrary. It need hardly be emphasised that the provisions of the Hindu Adoption and Maintenance Act cannot be superseded, nullified or modified in any manner by the State, muchless by way of executive circulars.

I would, however, hasten to clarify that the question as to whether the person concerned is, in fact, the adopted son or daughter of his or her putative father or mother is a question of fact. Thus, whenever such claim is made it would only be expedient and proper to hold an enquiry regarding the genuineness of the claim as also whether the adoption was permissible and valid in law or not So far as persons governed by the Hindu Adoption & Maintenance Act are concerned, the Act contains provisions laying down conditions of valid adoption. Section 5 of the Act prohibits adoption after commencement of the Act by or to a Hindu except in accordance with the provisions contained in that Act. It would, therefore, be trite to say that while claiming any right as the adopted child of the deceased government employee, the person must substantiate that his or her adoption was valid in law. This would, of course, require an enquiry. If proper care is not take to scrutinise the claims; there may be a possibility of spurious claimants getting jobs and frustrating the object of compassionate appointment.

There is another aspect of the matter so far as the case of the Petitioner is concerned. As indicated above, Chamela Devi had died in 1978. The application for appointment is said to have been filed in the same year. At the time such appointment was governed by circular No. 12754 dated 12.7.77. In that circular there was no prohibition in making appointment of an adopted son or daughter on compassionate ground. The prohibition has been introduced in 1991 by circular No. 3293 dated 15.10.91. Since the claim of the Petitioner had arisen in 1978 itself the same has to be considered and decided in the light of the circular then in vogue and not the circular which later came into existence. A Division Bench of this Court has taken the same view in the case of Anil Kumar Singh v. The State of Bihar and Ors. 1993 (1) PLJR 414. That provides another reason why the claim of the Petitioner is fit to be allowed.

In the previous writ petition, C.W.J.C. No. 4390 of 1991, Respondents had been directed to reconsider the case of the Petitioner and issue appropriate order in the matter of appointment on compassionate ground if he is otherwise found fit. In view of the rejection of his claim on the same and only ground that such appointment is not permissible because of the circular dated 15.10.91, the material part of which has been held to be illegal and arbitrary, it is no longer necessary to remit the matter back to the authority for fresh consideration. I would, accordingly, direct the Respondents to issue order of appointment in favour of the Petitioner against a class with post within three months of the receipt of a copy of this order.

This application is, accordingly, allowed in the above terms. In the circumstances of the case, Petitioner is entitled to cost assessed at Rs. 250/-.

Narayan Roy, J.

I agree.