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Madhya Pradesh High Court

Manoj Kumar Nagre vs Commissioner on 29 February, 2016

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR.

SINGLE BENCH:             JUSTICE SUJOY PAUL
                              W. P. No. 14251/2012

                              Manoj Kumar Nagre
                                        Vs.
                     The Commissioner of M.P. And others
_________________________________________________________________
     Shri L.S. Singh, Senior Advocate with Shri J.L. Soni, Advocate for the
     petitioner.
     Shri Sudeep Chaterjee, Panel Lawyer for the respondent/State.

_________________________________________________________________ (Order) 29/02/2016 The core issue involved in this petition filed under Article 226 of the Constitution of India is whether an adopted son has a right of consideration for compassionate appointment.

2. The brief facts necessary for adjudication of the matter are that the petitioner is claiming himself as adopted son of the deceased-Government Employee Smt. Hemlata Nagre, who was working as Upper Division Clerk. The petitioner earlier preferred an application for grant of compassionate appointment. Since the said application was not decided, the petitioner filed W.P. No. 9726/08 before this Court which was disposed of on 29-08-2008 by directing the respondents to consider the case of the petitioner for compassionate appointment as per the policy/circulars applicable in the matter. In turn, the impugned rejection order dated 05-06-2010 is passed whereby it is held that the petitioner being an adopted son is not entitled for compassionate appointment in the teeth of policy dated 18-08-2008.

3. Shri L.S. Singh, learned Senior counsel for the petitioner criticized this order by contending that 'son' includes the adopted son. By placing reliance on subsequent policy dated 29-09-2014, it is urged that the respondents themselves realized that adopted son should also be considered. As per this policy it is clear

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that the adopted son is also entitled for consideration for compassionate appointment.

4. The prayer is opposed by Shri Sudeep Chaterjee, learned Panel Lawyer. He submits that as per the policy invogue i.e. 18-08-2008, the petitioner has no right of consideration.

5. No other point is pressed by learned counsel for the parties.

6. Before dealing with the rival contentions advanced by the parties, it is apt to quote relevant portion of Section 12 of the Hindu Adoption and Maintenance Act which reads as under:-

"S.12 An adopted child shall be deemed to be the, child of his 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. (Emphasis supplied)

7. The question whether 'son' includes the 'adopted son' came for consideration before a Division Bench of Calcutta High Court in 2009 (123) F.L.R. 127 (District Primary School Council vs Sanjay Sarkar). The Calcutta High Court affirmed the order whereby a direction was issued to the employer to consider the case of claimant for appointment on compassionate ground. In the rule which was relied upon before the Calcutta High Court, the word son alone was mentioned and it was argued that the legislature in its wisdom has excluded the word 'adopted'. Thus, the word adopted cannot be included.

8. The Calcutta High Court after considering the provisions of said Act as well as General Clauses Act opined that the son includes an 'adopted son'.

9. In my view, although the subsequent circular issued by General Administration Department dated 29-09-2014 is not applicable in the present case, it at least shows that the Government later on decided to clarify that such adopted son/daughters, who have been legally adopted by Government Servant,

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are entitled for consideration. This gives an indication that government is willing to consider the case of adopted son/daughters.

10. I am in respectful agreement with the view taken by the Calcutta High Court in Sanjay Sarkar (supra). Resultantly, the impugned order dated 05-06- 2010 is set aside. The petitioner is directed to resubmit his candidature/application for grant of compassionate appointment with relevant documents to show that his adoption is legal/valid. In turn, the respondents shall consider the application for grant of compassionate appointment in accordance with law. It is made clear that it will be open to the respondents to examine the validity of adoption while considering the claim of the petitioner for grant of compassionate appointment. The respondents shall take a final decision by a reasoned order within 90 days. The outcome of such consideration be communicated to the petitioner.

11. It is made clear that this Court has not expressed any view on the merits of the case.

12. The petition is allowed to the extent indicated above. No cost.

(Sujoy Paul) Judge mohsin/