P Sriharitha vs The State Of Ap
2021 Latest Caselaw 1207 AP

       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

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

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

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

2011 (5) ALD 757 MSM,,J WP_1295_2020

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

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."

AIR 1998 Ori 29 MSM,,J WP_1295_2020

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.

AIR 1996 Ori 38 MSM,,J WP_1295_2020

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

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

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

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

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