Sri. K. Siva Ram Babu , vs The State Of Andhra Pradesh
2021 Latest Caselaw 4535 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                       W.P.No.13304 of 2021
ORDER :

This writ petition is filed for the following relief:

"To issue or Direction under Article 226 of Constitution of India particularly one in the nature of Writ of Mandamus directing the of Writ of Mandamus directing the respondents to declare that the petitioner is entitled to be appointed on Compassionate grounds and further be paid arrears of family pension up to the date on which he attained the age of 25 years with interest 18 percentage per annum in the interest of justice and to provide Compassionate appointment to the petitioner by declaring the inaction on the part of the 2nd respondent as unjust arbitrary and illegal besides violation of Article 14 and 21 of Constitution of India and to pass..."

This Court has heard Sri Nutalapati Krishnamurthy,

learned counsel for the petitioner, Smt. B.V.Aparna Lakshmi

for the main answering respondents. Government Pleader for

Services-IV appears for respondent Nos.1 and 2.

Sri N.Krishnamurthy argues that the petitioner was

unlawfully denied the benefit of compassionate appointment.

It is submitted that the service particulars of the deceased

clearly indicate that the petitioner is the adopted son. Since

he is deemed to be an adopted son, learned counsel for the

petitioner argues that the petitioner should also be

considered for appointment on compassionate basis. Learned

counsel argues that the Will is registered and affirms a fact

that is already over. Therefore, he submits that the rejection

of the case of the petitioner on the ground of clause 2(ii) of

G.O.Ms.No.612 is totally incorrect. In the alternative, he

submits that the respondents have relaxed his particular rule

in other cases. He relies upon G.O.Ms.No.186 and 889 to

argue that the petitioner is entitled to an appointment.

In reply to this, Smt.Aparna Lakshmi submits that the

Will is not validly executed or proved. She submits that the

date of the adoption is not mentioned nor or other details of

the adoption mentioned clearly. It is her contention that the

compassionate appointment is an alternative to the regular

and general mode of appointment and that unless and until

all the conditions are strictly fulfilled, compassionate

appointment cannot be granted. Relying upon

G.O.Ms.No.612 and more particularly, clause 2(ii), learned

counsel argues that the petitioner should prove that the

adoption has taken place nearly five (5) years prior to the

demise of the Government servant. It is argued that the

petitioner died on 20.04.2009. Therefore, the submission is

that only if the adoption took place on or before 20.04.2004,

he can be considered for appointment. She stresses that the

words used in this clause are at least five (5) years prior to

the death. In the case on hand, she submits that adoption

did not take place at least five (5) years prior to the death.

She also argues that the rejection took place in 2015 and the

writ petition is filed later after a great delay. Hence, she prays

that the writ should be dismissed.

The Government Pleader for Services -IV adopts the

arguments of Smt. Aparna Lakshmi and states further that

the relaxation which the petitioner relies upon was not given

to the similarly placed persons. Therefore, it is submitted

that the petitioner cannot claim any relief. Apart from that,

he also argues that the rejection took place in the year 2015

and the writ petition is fled in the year 2021. He also argues

that the rejection order of 2015 is not challenged in this writ

petition. Learned counsel also argues that what is stated in

para 8 of the writ affidavit is very vague and it is not clear

why the O.A. was not numbered. He points out that other

than an office copy of O.A. supposedly filed, no details are

furnished of the said original application which was moved

before the Tribunal and why the delay occurred. According to

the writ petition and the documents filed, the adoption took

place nine(9) years prior to 2004 which is 1995. He points

out that the age of the petitioner is also not mentioned in the

writ petition as on date of the adoption. Relying upon the

conditions of the Will, he states that there is no express

reference to an adoption per se for the same.

COURT: This Court after hearing the submissions of the

learned counsel notices that as per the law, the essential

conditions for an adoption are spelt out in Section 11 of the

Hindu Adoption and Maintenance Act, 1956. Section 16 of

this Act also raises a presumption that whenever a deed of

adoption is registered; the adoption is in compliance with the

Act. Since the deed is filed, a presumption arises as to its

corrections.

However, this Court notices as rightly pointed out by

the learned counsel for the respondents that the document in

question does not contain any clear details whatsoever of the

date and the manner of adoption in order to meet the

defences raised. Rule 2 (ii) of G.O.Ms.No.612 also states that

a person should be „legally adopted at least‟ five years prior to

the death of the employee. In the case on hand, this

document does not prove that the adoption actually took

place at least five years prior to the death of the testator.

There is no clarity about the exact date/time procedure etc.,

of the adoption. Even if the date of the registration is taken

into consideration, it falls short of the five year period.

Compassionate appointment is an exception to the general

rule. Relevant rules have to be fully followed. (Hindustan

Aeronautics Ltd. v. A.Radhika Thirumalai (AIR 1997 SC

123).

Last but not least, is the delay. The filing of the O.A.

and its pendency in the Tribunal are not borne out by the

record. An office copy of O.A. is filed. Even if the date of the

said document is taken into consideration, it is dated "June,

2018". The orders of rejection dated 30.04.2015 and

02.07.2015 are communicated to the petitioner on

14.07.2015. These orders are not challenged at all. From

that date onwards, approximately three years has elapsed

even if the O.A. is said to be validly instituted in June, 2018.

When the O.A. was returned; why the O.A. was returned etc.,

are not at all clear for this Court to appreciate the case. Mere

filing of an unsigned copy of an O.A. is not proof of the facts.

Even thereafter, if the issue is seen, it is apparent that the

writ was filed only in June, 2021. No proper or clear

explanation is given for this delay of three years. A Division

Bench of our High Court in a recent judgment (WP.No.90 of

2021) held that a three year period was deemed to be a

reasonable period to agitate a case even by filing a writ.

This Court finds (a) that „at least‟ five year period did not

occur as per clause 2(ii) (b) that the essentials of a valid

adoption are not spelt out with clarity either in the document

or in the writ affidavit. (c) that the order communicated on

14.07.2015 has not been challenged in the writ petition and

there is great delay in seeking legal redressal. For the

reasons the writ is dismissed.

For this Court to appreciate the contention that

relaxation was given in other cases; there is no material filed

to prove in what circumstances the Government exercised its

discretion in the examples relied upon. Apart from that the

fact that a rule was relaxed as a special case will not confer a

„right‟ on the petitioner to seek a Mandamus.

For all the above mentioned reasons, the writ petition is

dismissed. No order as to costs.

As a sequel, the miscellaneous petitions if any shall

stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date : .11.2021 KLP