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Judgment
N. Paul Vasathakumar, J.—The prayer in the Writ Petition is to quash the order dated 28.6.1999 giving direction given by the first
Respondent to the sec-and Respondent to terminate the Petitioner from service.
While admitting the Original Application, the Tribunal granted interim stay on 20.7.1999 and the same was ordered to continue until further
orders and by virtue of the interim stay, the Petitioner is continuing in service as on date.
The case of the Petitioner is that he is the adopted son of one K. Sakkarai who was a bachelor. The said Sakkarai was employed as a
Secondary Grade Teacher in Government Higher Secondary School, M.M.D.A. Colony, Arumbakkam, Chennai, and he died on 11.1.1982
while in service. The Petitioner was given on adoption at the age of seven by his natural father under the Hindu Customs and Rites and the
adoption took place on 15.6.1976. To prove the said adoption, the Petitioner''s natural father K. Ranganathan and the Petitioner''s sister Rajambal
gave sworn affidavit before the XV Metropolitan Magistrate on 16.7.1992. Two witnesses who attended the adoption ceremony have also given
sworn affidavit on 14.3.1991. For paying the terminal benefits, to consider the claim of the Petitioner as a adopted son, the first Respondent sought
for legal opinion from the City Government Pleader and based on the legal opinion given, the Director of School Education has permitted to pay
the family pension, DCRG to the Petitioner by Government letter datedl8.8.1987. The Collector''s Office, Chennai, issued a certificate on
20.7.1982 and issued a Legal Heir Certificate in favour of the Petitioner stating that the Petitioner is the adopted son of late K. Sakkarai and one
Ranganathan is the brother of the said Sakkarai and Rajammal is the sister of the said person.
The Accountant General, Chennai, in his letter dated 6.2.1992 released the terminal benefits of the said K. Sakkarai in favour of the Petitioner
as an adopted son. The Petitioner submitted application for appointment on compassionate ground due to the death of the adopted father. The
Tahsildar, Egmore-Nungambakkam Taluk, recommended the case of the Petitioner for appointment on compassionate ground and thereafter the
second Respondent through his proceedings dated 7.10.1992 appointed the Petitioner under Rule 10(a)(1) of the Tamil Nadu State and
Subordinate Service Rules as Junior Assistant and posted the Petitioner at the Office of the Assistant Educational Officer, T. Nagar in the place of
one Tmt. Saveriammal, Junior Assistant already transferred. In the said order it is further stated that the Assistant Educational Officer, T. Nagar
has to verify the certificates produced by the Petitioner before permitting the Petitioner to join in his Office. The Petitioner joined the in the said
Office on 9.10.1992 and is continuously serving. By the impugned order dated 28.6.1999, the first Respondent directed the second Respondent
to terminate the Petitioner from his service on the ground that the Petitioner was given appointment contrary to the Government Order issued in
G.O. Ms. No. 2899 Labour and Employment Department dated 23.12.1988.
The said order is challenged in O.A. No. 3875 of 1999 before the State Administrative Tribunal on the ground that the Petitioner having been
adopted by the said Teacher namely K. Sakkarai on 15.6.1976 and the adopted father having been passed away in the year 1982, the Petitioner
cannot get a registered adoption deed in terms of the Government Order which was issued in the year 1988. The genuiness of the adoption of the
Petitioner by the said K. Sakkarai was already gone into by the Government and after accepting the legal opinion given by the City Government
Pleader and the Petitioner was given terminal benefits as per the order of the first Respondent dated 18.8.1987, the respon-dents cannot raise any
doubt with regard to the genuiness of the Petitioner''s adoption.
The Respondents have filed a counter affidavit wherein it is stated that the appointment given to the Petitioner in the year 1992 is a irregular
appointment and the same is contrary to G.O. Ms. No. 2899 Labour and Employment dated 23.12.1988, as the Petitioner''s adoption has not
been registered as required under the said Government Order.
The learned Counsel for the Petitioner submitted that the Government Order issued in the year 1988 cannot be applied to the adoption which
has taken place prior to the issuance of the Government Order as it has no retrospective application. Even assuming that the Government Order is
applicable, the Petitioner having been appointed after due verification of the certificates and the appointment order having been issued by the
second Respondent and the Petitioner having been permitted to join as Junior Assistant on 7.10.1992 at the age of 30 years and having regard to
the fact that the Petitioner is continuing in service as on date, cannot be sent out of his employment at this stage since he is aged 40 years and at this
belated stage he may not be in a position to get appointment in Government Service due to over age.
Heard the learned Additional Government Pleader for the Respondents.
It is not in dispute that the Petitioner was adopted by the said K. Sakkarai on 15.6.1976 and the said K. Sakkarai was a bachelor, was having
a brother and sister. The brother and sister of the said K. Sakkarai gave affidavits in support of the Petitioner''s adoption. The Petitioner also
obtained a Legal Heirship Certificate after the death of the said adopted father who died in the year 1982. The said Legal Heir Certificate and
other details were given to the City Government Pleader, Chennai who gave opinion stating that the petitioner is a validly adopted son of the said
K. Sakkarai and he can be given the terminal benefits payable to the said K. Sakkarai. Based on the said legal opinion given, the first Respondent
through letter No. 116266VM1/B5-13dt 18.8.1987 passed the following order:
Thiru K. Sakkarai, Secondary Grade Teacher''s Government High School, M.M.D.A. Colony, Madras 106 died on 11.1.1983 at the
Government Hospital at Madras while in service. One R. Bharathi has claimed that he is the adopted son of the deceased Sakkarai who died as a
bachelor and that he is eligible to all the benefits of the deceased Sakkarai as the Legal Heir.
In his opinion 1621/B5 dt. 29.4.85 the City Government Pleader has after looking into the related papers given his opinion that there was an
adoption by the deceased Sakkarai and that the said R. Barathi is the Legal Heir of me deceased Sakkarai is proved by the Legal Heirship
Certificate issued by the Tahsildar. You have sought the instructions of Government in the matter.
According to 6 of the Hindu Adoption and Maintenance Act 1956 (Central Act 78 of 1956) 40 adoption shall be valid unless
i) the person adopting has the capacity and also the right to take in adoption;
ii) the person giving in adoption has me capacity to do so;
iii) the person adopted is Capable of being taken in adoption; and iv) the adoption is made in compliance with the other conditions mentioned in
Chapter I of that Act.
In view of the above position, if the adoption in Question of Thiru R. Bharathi by Thiru Sakkarai satisfies the said conditions, the adoption is valid.
Then he will be entitled to receive the pensionary benefits with reference to the relevant provisions. I am therefore, directed to request you to settle
the case in the light of the above and taken a decision in regard to allowing the Family Pension DCRG to the said Thiru R. Bharathi.
As regard F.B.F., according to G.O. Ms. 806/Finance/219.83 the F.B.F. benefit is payable to the legal heir even when the nomination made is
not valid. Hence me F.B.F. amount can be paid to Thiru R. Bharadii as a legal heir if no nomination other than that of Thiru R. Bharathi had been
made by Thiru Sakkarai
Thus it is evident that the Respondents accepted the claim of the Petitioner as adopted son of K. Sakkarai and the Petitioner was sanctioned
with all terminal benefits. The Government order issued in G.O. Ms. No. 2899 Labour and Employment department dated 23.12.1988 was issued
to prevent the persons seeking compassionate ground appointment on false ground of adoption. In the Government Order, it is stated that
instances of cases where adoption has taken place after the death of the Government servant, have been brought to the notice of the Government.
In the said order it is further stated that the legally adopted son/unmarried 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.
As rightly contended by the learned Counsel for the Petitioner the Petitioner''s adoption was made on 15.6.1976 and the adopted father
namely K. Sakkarai died on 11.1.1982. Hence the said adoption already taken place as early as on 15.6.1976 cannot be registered. In so far as
the Petitioner is concerned, the conditions contained in the said G.O. is an impossibility of performance. Section 6 of the Hindu Adoptions and
Maintenance Act, 1956 also contemplates the requirement for a valid adoption; which reads as follows:
REQUISITES OF A VALID ADOPTION-- No adoption shall be valid unless--
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the persons adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Taking into account of the said statutory provision and the claim made by the Petitioner, the City Government Pleader has already given an
opinion and the said opinion was accepted by the Government and acted upon by its letter dated 18.8.1987. Hence, there is a valid and legal
presumption that the adoption of the Petitioner by the said K. Sakkarai is valid as the same has no ambiguity. Further the Petitioner applied for
compassionate appointment which was duly verified by the Tahisilarg and sent a report to the second Respondent on 1.6.1992. It is also stated in
the report that the Petitioner studied upto B. Sc, and is the adopted son of said K. Sakkarai and on enquiry the Petitioner was in indigent
circumstances and therefore, compassionate appointment can be given to the Petitioner. Based on the said recommendation made by the
Tahsildar, the second Respondent issued the appointment order to the Petitioner and he was given a posting at the Office of the Assistant
Educational Officer, T. Nagar, Chennai and during the joining time also, the Petitioner''s claims and certificates were verified by the Assistant
Educational Officer.
On the basis of the above facts, the Petitioner has to be treated that he was validly given appointment on compassionate ground. The
Government Order issued in the year 1988 cannot be applied retrospectively. The said issue was also considered by this Court in W.P. No.
20200 of 1998 by its judgment dated 11.10.1002. In paragraph Nos. 6 to 8 is it is held as follows:
The relevant portion of G.O. Ms. No. 2899 dated 23.12.1998 is to the following effect:
... According the orders governing the scheme of providing employment assistance to a dependant of a Government servant who dies in harness
leaving his family in indigent circumstances, a legally adopted son and legally adopted unmarried daughter of the deceased Government servant is
also eligible for appointment on compassionate grounds subject to all other conditions being satisfied. Instances of cases where adoption has taken
place after the death of Government servant have been brought to the notice of Government and orders of Government for providing employment
to such adopted sons have been sought for.
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 supplied)
From paragraphs 1 and 2 of the order, which are extracted above, particularly the emphasised portion, it is apparent that the intention of the
Government is to prevent the claim of appointment by an adopted child where the adoption is made by the widow after the death of the
Government servant. If the order is read in its entirety, it is apparent that the clear intention of the Government is to prevent the persons, who are
adopted after the death of the Government servant, to claim employment on compassionate ground. Even if the law permits the widow to adopt
after the death of the husband and such adopted child is considered as the child of the deceased husband under the Hindu Adoption and
Maintenance Act, the intention of the Government is to provide employment only to the person who is already adopted during the lifetime of the
employee.
It has been argued that even if a person is adopted during the lifetime of the employee, but there is no registered deed of adoption, such person
would not be entitled to claim employment on compassionate ground in view of the clarification dated 23.12.1988. It has to be remembered that
for any adoption to be valid, the ceremony of adoption, that is to say, giving and taking have to take place and mere execution of a registered deed
of adoption is not sufficient. The registration of the document relating to adoption only raises a statutory presumption regarding adoption itself as
apparent from the provisions contained in Section 16 of the Hindu Adoption and Maintenance Act. Therefore, a registered deed of adoption
signed in the manner indicated in Section 16 only raises a statutory presumption, but does not constitute adoption by itself. The insistence of the
Government for the registered document is only for the purpose of satisfying itself regarding the adoption because at the stage of considering
whether benefit should be given or not the employer would not be in a position to find out about the actual adoption and it is expected to act only if
there is a registered document. This does not, however, mean that where there is unchallenged material relating to adoption, such an adopted child
is to be ignored for the purpose of employment on compassionate ground merely because there is no registered document. For example,
supposing there is a decree declaring the status of an adopted son, would it be open to the Government to ignore the decree merely because there
is no registered deed of adoption. In other words, where there is sufficient materials regarding adoption, it would not be proper to ignore the
application for appointment on compassionate ground merely because there is no registered deed of adoption. In the present case, as already
indicated, the deceased employee himself had nominated the adopted child as his nominee long before his death and in view of such official record,
there was hardly any scope to entertain any doubt regarding the matter.
From the above referred judgment it is clear that the said Government Order cannot be given retrospective effect, that means the adoption
made prior to the issuance of the said G.O. are to be treated as valid even without registration. I am in entire agreement with the above said
judgment. Further, after verifying the eligibility of the Petitioner and accepting the adoption, the second Respondent having given appointment to the
Petitioner therefore even assuming that the same is in violation of the Government Order, the same cannot be cancelled after a period of seven
years and as of now, 17 years have gone and the Petitioner is now aged 40 years, he will not be in a position to get appointment in any
Government service due to age bar.
In W.P. No. 42656 of 2006 dated 26.3.2009,I have set aside a similar termination order, wherein the Petitioner was given appointment on
compassionate ground even-though two of his brothers were employed in a Private Company. There was no suppression of fact and the
Respondents herein appointed the Petitioner it was held that the termination was bad, by following the judgments of the Hon''ble Supreme Court.
In paragraph Nos. 5 to 7, it is held as follows:
Similar issue was considered by the Supreme Court in the decision reported in AIR 2002 SCW 2684 (Union of India and Ors. v. K.P. Tiwari).
Paragraph 4 and 5 of the judgment reads as follows:
It is necessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the Respondent has been appointed
now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other
order resulting in uprooting the Respondent from his livelihood.
In that view of the matter, we decline to interfere with the order made by the High Court. The appeals are accordingly dismissed.
Following the said judgments, in W.P. No. 26858 of 2006, dated 17.7.2008, this Court allowed a similar writ petition wherein also the
compassionate appointment was cancelled on the ground that at the time of the death of the Petitioner''s mother, the Petitioner''s father, was in
employment. In W.P. No. 35002 of 2006 also a similar issue was considered wherein the Petitioner was given compassionate appointment due to
the death of his father, even though Petitioner''s brother was in employment.
In the decision reported in 2009 (2) Supr 271 (P.M. Premkumari v. The Divisional Commissioner, Mysore Division and Ors.) also a similar
issue arose with regard to the cancellation of community certificate. The Supreme Court in para 11 to 16 held as follows:
Having given our anxious consideration to the case pleaded by the learned Counsel for the parties, we are of the view, that it would not be
desirable to decide this case on merits. If we have to do it, we might have to tell the Appellant that she might have to go out of the employment.
This, in our opinion, would cause great hardship and injustice to the employment.
The Appellant, as we have noticed earlier, was appointed as a Primary School Teacher sometime in the year 1994. At the time of her
appointment, she had produced the caste certificate issued by the Tahsildar. She might not have understood the nuances of legal terminologies like
Group ''B'' Category, Group ''D'' Category etc., and therefore, now she is caught in the ""cobweb"".
The District Caste Verification Committee, which was asked to verify the Appellant''s claim, is justified in informing the appointing authorities
that, strictly going by the Government''s orders issued in 1986, the Appellant could not have claimed any reservation under Group ''B'' category.
We cannot find fault with their understanding of the Government Order. However, the learned Single Judge, may be taking a very sympathetic
view of the matter, has come to the rescue of a poor primary school teacher. The Division Bench has strictly applied the true interpretation that
requires to be placed while constituting Article 15(4) and Article 16(4) of the Constitution. Therefore, we cannot find fault with the orders passed
by the Division Bench of the Karnataka High Courtalso.
This Court, while entertaining the special leave petition, had granted the status-quo order. By virtue of that order, the Appellant is continuing to
work as a primary school teacher. At this stage, if the appointment of me Appellant is struck down and if she is now asked to seek employment
elsewhere, in our opinion, it would cause great hardship and injustice, for the reason by now she must ave crossed the upper age limit for seeking
public employment and she may not get any employment anywhere. It is not the case of the other side also, that if me Appellant''s service is
continued, it would cause any prejudice to any other applicant.
""The law is merciless"", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of
righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassionate should not exist in legal
cases, especially not in judiciary. This, in our view, is a misunderstanding. Judiciary has very strong sense of justice and it: works to maintain social
justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy.
In view of the above discussion and keeping in view the peculiar facts and circumstances of the case, we dispose of this appeal, without going
into the merits of the case. In order to do completed justice, we direct the Respondents herein, not to dislodge the Appellant from the post of
primary school teacher. This order of ours shall not be treated as a precedent: in any other case.
Even though, in the said decision it is stated that the said order shall not to be treated as a precedent in any other case, the facts in this case are
some what similar to the said case and the Petitioner having been allowed to continue for over 14 years in service and having regard to the fact that
the Petitioner is age barred to get any other appointment in Government services, I am of the view that the impugned order is liable to be set aside
on equitable grounds.
In W.P. No. 20200 of 1998 dated 11.10.2002, the very same issue as to whether even irregular appointment can be cancelled after a lapse of
several years was considered and in paragraph Nos. 9 to 12, it is held as follows:
Even assuming that G.O. Ms. No. 2899 dated 23.12.1988 would be otherwise applicable, such G.O., cannot be given retrospective effect and
it is to be made applicable to the adoptions: which had taken place after 23.12.1988 and not to the adoptions which had taken place prior to that
date.
Learned Counsel appearing for the petitioner has submitted with enough justification ; that whatever might be the irregularity in the original
employment, there was no scope for terminating the services of the Petitioner in 1995 and that too without issuing any notice. He has further
submitted that the High Court on the earlier occasion had quashed the order of termination and the only question was relating to regularisation for
which a direction was made to the Government for considering the representation and it was not open to the Respondents to go behind the earlier
order.
Even assuming that there was some irregularity in the earlier appointment made in the year 1991, the Petitioner had continued for about 4 years
and thereafter there was no justification to suddenly terminate the services even without issuing any notice.
As observed in The Nayagarh Co-operative Central Bank Ltd. and Another Vs. Narayan Rath and Another, , it has to be held that even if a
person is appointed to the post erroneously and was allowed to continue on the said post for a long time, he could not be removed from the said
post in the garb of rectification of mistake as the doctrine of acquiescence is applicable.
For the aforesaid reasons, the writ petition is allowed and the impugned order is quashed and the Petitioner''s appointment should be deemed
to be regular and continuous for all purpose. However, it is made clear that no amount would be paid to the Petitioner for the past period as
backwages and future wages have to be paid from the date of rejoining. The Petitioner should be allowed to rejoin within a period of one month
from the date of the communication of the order. There will be no order as to costs.
The first Respondent by the impugned order dated 28.6.1998 held that the appointment order given to the Petitioner was improper and he should
be terminated. The said order was passed without any notice to the Petitioner. By the order of the second Respondent, the Petitioner was
appointed on 9.10.1992 and when the order is to be cancelled after seven years, the Petitioner is bound to be heard since the Petitioner''s right to
continue in the post is affected. Thus there is violation of principles of natural justice.
In this case also the doctrine of acquiescence is applicable as the Respondents after verifying the Petitioner''s claim ordered appointment of the
Petitioner. There is no suppression of fact alleged against the Petitioner. If the impugned order is upheld the Petitioner''s right will be seriously
prejudiced. The Petitioner also settled in his life by virtue of the appointment given in the year 1992. It is also relevant to note that till date no one
has raised any doubt about the Petitioner''s adoption by the said late K. Sakkarai. So long as the said adoption is found valid, the Petitioner is
entitled to get all his rights as an adopted son. If the impugned order is upheld, the Petitioner''s right to livelihood guaranteed under Article 21 of the
Constitution of India will be affected. The Petitioner on being appointed on compassionate ground at the age of 23 years due to the death of his
adopted father, is entitled to continue in service till his date of superannuation unless he is removed from service due to any misconduct. On his
appointment, he get a right to get salary and by receiving his salary he earns his livelihood and on getting married, the salary becomes the livelihood
of his family and on termination of his service without any misconduct, not only his right to livelihood, but, also the livelihood of his entire family is
affected. Thus, it is evident that by the action of the Respondents in terminating his service, the Respondents deprived the rights guaranteed under
Article 21 of the Constitution of India.
Taking all the above facts and the law into consideration, I hold that the impugned order passed by the first Respondent cannot be sustained
and consequently the Writ Petition is allowed. No costs.