Andhra Pradesh High Court - Amravati
P Sriharitha vs The State Of Ap on 1 March, 2021
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. No.1295 of 2020
O R D E R:-
This writ petition is filed for the following substantive relief:
"....to issue a writ of mandamus declaring the action of the respondents in not considering the case of the petitioner for providing employment on compassionate grounds, as illegal, arbitrary and contrary to the object of G.O.Ms.No.1005 Emp. & Soc. Wel.(G) Dept., dated 27.12.1974 read with Govt. Memo No.535/91-1, G.A.(Ser.A) Dept., dated 31.07.1991 and violation of Articles 14 and 16 of the Constitution of India apart from violation of principles of natural justice and consequently direct the respondents to consider the petitioner's case for providing employment on compassionate grounds in the respondents department."
The petitioner asserts that one Pavuluru Venkata Subbaiah is her paternal uncle i.e. her father's younger brother who remained unmarried. He was appointed as Town Planning Building Tracer and joined duty on 24.08.2011. His services were regularized in that category and promoted to the post of Town Planning Surveyor and while working at Ponnur Municipality, he died due to cancer on 23.10.2017 while in service. The petitioner's paternal uncle adopted her while she was at the age of 10 years vide Adoption Deed dated 18.12.2007 and since then she has been residing with her adopted father and taken care of by him. During his life time, her paternal uncle executed a Will dated 24.08.2017 bequeathing all his service benefits in favour of the petitioner. He died on 23.10.2017 leaving behind the petitioner as his sole legal heir.
MSM,,J WP_1295_2020 2 Consequent upon the death of P. Venkata Subbaih, the petitioner submitted a representation, dated 30.01.2018 to the Regional Deputy Director, Municipal Administration, explaining about the death of her adopted father and requested to consider her case for appointment in a suitable post on compassionate ground. The 4th respondent, vide proceedings dated 30.01.2018, forwarded her representation to the 3rd respondent explaining the petitioner's case and requested to take action thereon. Having received the same, the 3rd respondent addressed a letter dated 23.02.2018 to the 2nd respondent duly enclosing the Service Register of P. Venkata Subbaih and requested to take further action in the matter.
In pursuance of the letter of the 3rd respondent, the 2nd respondent addressed a letter dated 17.05.2018 duly enclosing all the relevant documents to the Government Pleader for Revenue (Services), Municipal Administration & Urban Development Department, Andhra Pradesh Administrative Tribunal, Hyderabad requesting to offer his opinion whether it is fit case for appointment under compassionate scheme and also for receiving retirement benefits if any.
It is further averred that the Government, vide its Memo No.535/91-1, G.A.(Ser.A) Department, dated 31.07.1991, issued instructions / clarifications to the G.O.Ms.No.1005, dated 27.12.1974, categorically instructing that the adopted son or MSM,,J WP_1295_2020 3 daughter of the deceased Government servant may be considered for appointment if the adoption had taken place legally at least five years prior to the date of demise of the Government servant. The said benefit has been extended to the similarly situated person but ignored the petitioner's claim. Hence, the present writ petition is filed seeking appropriate directions.
The 4th respondent - Municipal Commissioner, filed a detailed counter denying material allegations and inter alia contending that in terms of G.O.Ms.No.612, General Administration (Services-A) Department, dated 30.10.1991, Rule 2 Sub-Rule (ii) states that the adopted son or daughter of the deceased Government servant may be considered for appointment, if, the adoption had taken place legally, at least prior to the date of demise of the Government servant. But, in the present case, the petitioner mentioned clearly in her representation that she is the daughter of her natural father and not the adopted daughter and the family members certificate issued by the Tahsildar, Balayapalle Mandal, SPSR Nellore District also shows that she is her brother's daughter. Thus, the deceased employee never intimated to the respondents regarding adoption of the petitioner and even the unregistered adoption took place in the year 2007 itself cannot be taken into consideration and requested to dismissed the writ petition.
Sri A.Chandraiah Naidu, learned counsel for the petitioner contended that when the adoption took place five years prior to MSM,,J WP_1295_2020 4 the death of the Government servant, the same can be accepted and by extending the benefit of G.O.Ms.No1005 Emp. & Soc. Wel.(G) Dept., dated 27.12.1974 read with Govt. Memo No.535/91- 1, G.A.(Ser.A) Dept., dated 31.07.1991, the petitioner has to be appointed in any suitable post on compassionate ground and requested to issue a direction to conduct enquiry while placing reliance on the judgment reported in Union of India and Others v. C.Aruna Devi and Another1, wherein the Division Bench of the High Court of A.P. at Hyderabad held that mere failure to incorporate the name of the adopted father in the School Register and certificate subsequent to registered adoption, is not a ground to deny appointment on compassionate ground by disbelieving the adoption and requested to issue a direction.
Whereas, the learned Standing Counsel for Ponnur Municipality would contend that in the absence of any proof that the petitioner is adopted daughter of P.Venkata Subbaiab, she cannot be appointed on compassionate ground based on the unregistered adoption deed which can be created at any time and therefore, the petitioner is disentitled to the claim of appointment and requested to dismiss the writ petition.
The petitioner is admittedly the daughter of the elder brother of P.Venkata Subbaiah but her claim is that she was adopted by P.Venkata Subbaiah during his life time, is supported by an unregistered adoption deed dated 18.12.2007 written on a 1 2011 (5) ALD 757 MSM,,J WP_1295_2020 5 stamp paper worth Rs.100/- purchased on 11.12.2007. As per this document, the deceased P.Venkata Subbaiah during his life time adopted the petitioner who is the daughter of his elder brother. The execution of document was attested by three witnesses and signed by both the natural father and the mother including the adopted father.
The main contention of the learned counsel for the petitioner is that adoption need not be registered in terms of Section 15 of the Hindu Adoption and Maintenance Act, 1956 (for brevity "the Act"). According to Section 15 of the Act, no adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth i.e. natural family. Therefore, adoption need not be in writing but the essential requisites of valid adoption are prescribed under Section 6 of the Act. According to Section 6 of the Act, 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 adopting has the 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 this Chapter.
Under Section 6 of the Act, the law does not recognize an adoption of a Hindu or any other person other than the Hindu and to prove valid adoption, it would be necessarily to bring on record that MSM,,J WP_1295_2020 6 there had been an actual giving and taking ceremony. The law is well settled that the adoption displaces the natural line of succession and therefore, must prove the factum of adoption and its validity by placing sufficient materials on record as observed in Suma Bewa v. Kunja Bihari Nayak2.
Section 11 of the Act prescribes other conditions for a valid adoption. In every adoption, the following conditions must be complied with:
i) "If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
iii) If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
iv) 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;
v) The same child may not be adopted simultaneously by two or more persons;
vi) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:
Provided that the performance of datta homam shall not be essential to validity of adoption."
2 AIR 1998 Ori 29 MSM,,J WP_1295_2020 7 Therefore, the said proof of requirement under Section 11 of the Act to be complied with, otherwise, the adoption is not valid.
The major contention of the learned counsel for the respondents is that the adoption is not valid but that is not a ground to reject the appointment of the petitioner on compassionate ground since neither any deed of will and acceptance executed and registered nor deed of acknowledgement acknowledging adoption is sufficient by itself to constitute legal adoption in the absence of actual giving or taking. It is not a substitute for actual giving or taking. Omission of day or date of adoption in a deed of acknowledgement is very vital. Such a deed loses all its significance vide judgment reported in Raghunath Behera v. Balaram Behera3. Thus, the petitioner not only required to prove the requisition under Section 6 of the Act, but also requires to prove the requirement under Section 11 of the Act and substantiate the plea of the petitioner that the petitioner is adopted in compliance with the requirements.
Here, the respondents denied the adoption itself. In the unregistered adoption deed, no specific giving and taking of a child is mentioned, but the intention can be gathered from the contents of the document that P.Venkata Subbaiah intended to take the child as his natural heir and to constitute a valid adoption under Section 6 of the Act.
3 AIR 1996 Ori 38 MSM,,J WP_1295_2020 8 Yet, the basis for the claim of the petitioner is a Will deed dated 24.08.2017. The petitioner herself relied on the Will to substantiate her contention. The contents of the Will are crucial for deciding the present controversy. According to the Will, P.Venkata Subbaiah, during his life time, decided to bequeath his properties including the benefits of service as he suffered from cancer, to his elder brother's daughter i.e. P.Sriharita, D/o.Pavuluru Venkata Krishnaiah, after his life time without any hindrance. Thus, the contents of penultimate paragraph of the Will deed dated 24.08.2017, almost ten years subsequent to execution of the alleged adoption deed discloses that the petitioner was continuing as daughter of P.Venkata Krishnaiah, the elder brother of the deceased - P.Venkata Subbaiah. This recital itself creates any amount of suspicion on the alleged adoption that allegedly took place on 18.12.2007. If really she was adopted by P.Venkata Subbaiah, she would step into the shows of his daughter in terms of the provisions of the Act and entitled to claim death benefits or retirement benefits of P.Venkata Subbaiah after his life time. But, for some reason or the other, this Will is brought into existence as if P.Venkata Subbaiah executed Will bequeathing his property in favour of his elder brother's daughter P.Sriharitha, D/o.P.Venkata Krishnaiah. This itself is sufficient to disbelieve the Will prima facie.
MSM,,J WP_1295_2020 9 The other contention of the respondents is that in the family member certificate issued by the Mandal Revenue Officer, the petitioner is shown as brother's daughter, therefore, if really the deceased had adopted the daughter of P.Venkata Krishnaiah, it would have been mentioned in the column No.3 of the certificate as adopted daughter instead of mentioning brother's daughter. Therefore, this is another strong circumstance to suspect the adoption pleaded by the petitioner to claim benefit of adoption and appointment on compassionate ground.
When this Court directed the petitioner to file SSC and other certificates to prove the adoption, the petitioner failed to produce any documents obviously for the reasons best known to her while placing reliance on the judgment in Union of India and Others v. C.Aruna Devi's case (1 cited supra), wherein the Division Bench of the High Court of A.P. at Hyderabad held to the following effect:
"The statutory presumption under Section 16 of the Act is certainly a rebuttable presumption. However, the investigation done by the Vigilance Department by mere looking into certain documents does not amount to rebuttal of the presumption under Section 16 of the Act. Merely not changing of the name of the first respondent in the school/college records subsequent to the registered adoption deed, it cannot be said that she is not adopted daughter of the deceased employee. Moreover, the impugned order of the Tribunal is bound by the decision rendered by the Supreme Court in the case of Jai Singh v. Shakuntala [(2002) 3 SCC 634]. Without examining all the facts and circumstances thoroughly, drawing adverse conclusions against the first respondent is not proper and basing on the anonymous complaint, the railway authorities cannot terminate the first respondent."
MSM,,J WP_1295_2020 10 On the strength of the above judgment, the learned counsel for the petitioner requested to reject the contention of the learned counsel for the respondents. No doubt, mere failure to incorporate the name of the adopted father of the child is not a ground but that is also one of the circumstances to be looked into to decide whether there was really an adoption or whether it is invented for the purpose of claiming appointment on compassionate ground in any suitable post.
On over all scrutiny of the entire material, more particularly, the adoption deed which would prove that there was an adoption and the members of the family i.e. natural parents of the petitioner agreed to give the child, the petitioner herein, into adoption to P.Venkata Subbaiah and P.Venkata Subbaiah agreed to take the child into his family but the documents relied on by the petitioner, would disclose that the petitioner is continuing as a daughter of P.Venkata Krishnaiah, elder brother of the petitioner's adopted father. Besides that, failure to include the name of the adopted father i.e. P.Venkata Subbaiah in the school certificates is another suspicion. Thus, the family member certificate issued by the Mandal Revenue Officer is also an additional circumstance to suspect the adoption of the petitioner by P.Venkata Subbaiah. However, this Court cannot decide the validity of the adoption in a limited jurisdiction under Article 226 of the Constitution. However, it is necessary to conduct enquiry to find out whether MSM,,J WP_1295_2020 11 the adoption is true or not and if, the appointing authority comes to a conclusion that the adoption is not proved, they can reject the application of the petitioner for appointment on compassionate ground. Here, an order was passed but without making any enquiry as to the adoption but based on the documents produced by the petitioner, the appointing authority came to such conclusion.
For the foregoing discussion, this Court is inclined to dispose of the writ petition directing the appointing authority to conduct necessary enquiry to decide the truth or otherwise of the allegations made in the adoption deed coupled with the Will, the educational qualification certificates of the petitioner and family member certificate, decide whether she is actually adopted by P. Venkata Subbaiah or not and pass appropriate orders after affording an opportunity to the petitioner in compliance with the principles of natural justice, within a period of eight weeks from today.
With the above observations, the writ petition is disposed of. No order as to costs.
As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
____________________________ M. SATYANARAYANA MURTHY, J 01.03.2021 bcj