R.Bharathi v. The Secretary to GovernmentSchool Education (M.1) DepartmentFort St.George, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.04.2009CORAMTHE HON'BLE JUSTICE Mr.N.PAUL VASATHAKUMARW.P.No.41518 of 2006R.Bharathi .. Petitionervs1.The Secretary to GovernmentSchool Education (M.1) DepartmentFort St.George, Chennai 9.2.The Director of School EducationChennai 600 006... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamusto quash the order of the first respondent passed in LetterNo.11361/M.1/94-19 dated 28.6.1999 and forbear the respondents fromtaking any action pursuant to the impugned order of the firstrespondent in Letter No.11361/M.1/94-19 dated 28.6.1999.For Petitioner: Mr.S.Vadivelu For Respondents: Mr.A.Edwin Prabhakar, AGPORDERThe prayer in the Writ Petition is to quash the order dated28.6.1999 giving direction given by the first respondent to thesecond respondent to terminate the petitioner from service.2.While admitting the Original Application, the Tribunal grantedinterim stay on 20.7.1999 and the same was ordered to continue untilfurther orders and by virtue of the interim stay, the petitioner iscontinuing in service as on date.3.The case of the petitioner is that he is the adopted son ofone K.Sakkarai who was a bachelor . The said Sakkarai was employedas a Secondary Grade Teacher in Government Higher Secondary School,M.M.D.A. Colony, Arumbakkam, Chennai, and he died on 11.1.1982 whilein service. The petitioner was given on adoption at the age ofseven by his natural father under the Hindu Customs and Rites and theadoption took place on 15.6.1976. To prove the said adoption, the https://hcservices.ecourts.gov.in/hcservices/ petitioner’s natural father K.Ranganathan and the petitioner’s sisterRajambal gave sworn affidavit before the XV Metropolitan Magistrateon 16.7.1992. Two witnesses who attended the adoption ceremony havealso given sworn affidavit on 14.3.1991. For paying the terminalbenefits, to consider the claim of the petitioner as a adopted son,the first respondent sought for legal opinion from the CityGovernment Pleader and based on the legal opinion given, the Directorof School Education has permitted to pay the family pension, DCRG tothe petitioner by Government letter dated18.8.1987. The Collector’sOffice, Chennai, issued a certificate on 20.7.1982 and issued a LegalHeir Certificate in favour of the petitioner stating that thepetitioner is the adopted son of late K.Sakkarai and one Ranganathanis the brother of the said Sakkarai and Rajammal is the sister of thesaid person. 4.The Accountant General, Chennai, in his letter dated 6.2.1992released the terminal benefits of the said K.Sakkarai in favour ofthe petitioner as an adopted son. The petitioner submittedapplication for appointment on compassionate ground due to the deathof the adopted father. The Tahsildar, Egmore-Nungambakkam Taluk,recommended the case of the petitioner for appointment oncompassionate ground and thereafter the second respondent through hisproceedings dated 7.10.1992 appointed the petitioner under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Service Rules as JuniorAssistant and posted the petitioner at the Office of the AssistantEducational Officer, T.Nagar in the place of one Tmt. Saveriammal,Junior Assistant already transferred. In the said order it isfurther stated that the Assistant Educational Officer, T.Nagar has toverify the certificates produced by the petitioner before permittingthe petitioner to join in his Office. The petitioner joined the inthe said Office on 9.10.1992 and is continuously serving. By theimpugned order dated 28.6.1999, the first respondent directed thesecond respondent to terminate the petitioner from his service on theground that the petitioner was given appointment contrary to theGovernment Order issued in G.O.Ms.No.2899 Labour and EmploymentDepartment dated 23.12.1988.5.The said order is challenged in O.A.No.3875 of 1999 before theState Administrative Tribunal on the ground that the petitionerhaving been adopted by the said Teacher namely K.Sakkarai on15.6.1976 and the adopted father having been passed away in the year1982, the petitioner cannot get a registered adoption deed in termsof the Government Order which was issued in the year 1988. Thegenuiness of the adoption of the petitioner by the said K.Sakkaraiwas already gone into by the Government and after accepting thelegal opinion given by the City Government Pleader and the petitionerwas given terminal benefits as per the order of the first respondentdated 18.8.1987, the respondents cannot raise any doubt with regardto the genuiness of the petitioner’s adoption. https://hcservices.ecourts.gov.in/hcservices/

6. The respondents have filed a counter affidavit wherein it isstated that the appointment given to the petitioner in the year 1992is a irregular appointment and the same is contrary toG.O.Ms.No.2899 Labour and Employment dated 23.12.1988, as thepetitioner’s adoption has not been registered as required under thesaid Government Order.7. The learned counsel for the petitioner submitted that theGovernment Order issued in the year 1988 cannot be applied to theadoption which has taken place prior to the issuance of theGovernment Order as it has no retrospective application. Evenassuming that the Government Order is applicable, the petitionerhaving been appointed after due verification of the certificates andthe appointment order having been issued by the second respondent andthe petitioner having been permitted to join as Junior Assistant on7.10.1992 at the age of 30 years and having regard to the fact thatthe petitioner is continuing in service as on date, cannot be sentout of his employment at this stage since he is aged 40 years and atthis belated stage he may not be in a position to get appointment inGovernment Service due to over age.8.Heard the learned Additional Government Pleader for therespondents.9.It is not in dispute that the petitioner was adopted by thesaid 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 saidK.Sakkarai gave affidavits in support of the petitioner’s adoption.The petitioner also obtained a Legal Heirship Certificate after thedeath of the said adopted father who died in the year 1982. The saidLegal Heir Certificate and other details were given to the CityGovernment Pleader, Chennai who gave opinion stating that thepetitioner is a validly adopted son of the said K.Sakkarai and he canbe given the terminal benefits payable to the said K.Sakkarai. Basedon the said legal opinion given, the first respondent through letterNo.116266/M1/B5-13 dt 18.8.1987 passed the following order:“Thiru K.Sakkarai, Secondary Grade Teacher’sGovernment High School, M.M.D.A.Colony, Madras 106 diedon 11.1.1983 at the Government Hospital at Madras whilein service. One R.Bharathi has claimed that he is theadopted son of the deceased Sakkarai who died as abachelor and that he is eligible to all the benefits ofthe deceased Sakkarai as the Legal Heir. 2.In his opinion 1621/B5 dt. 29.4.85 the CityGovernment Pleader has after looking into the relatedpapers given his opinion that there was an adoption bythe deceased Sakkarai and that the said R.Barathi isthe Legal Heir of the deceased Sakkarai is proved by https://hcservices.ecourts.gov.in/hcservices/ the Legal Heirship Certificate issued by the Tahsildar.You have sought the instructions of Government in thematter. 3.According to 6 of the Hindu Adoption andMaintenance Act 1956 (Central Act 78 of 1956) 40adoption shall be valid unlessi) the person adopting has the capacity and alsothe right to take in adoption;ii) the person giving in adoption has thecapacity to do so;iii) the person adopted is capable of being takenin adoption; and iv) the adoption is made in compliance with the otherconditions mentioned in Chapter I of that Act.In view of the above position, if the adoption inquestion of Thiru R.Bharathi by Thiru Sakkaraisatisfies the said conditions, the adoption is valid.Then he will be entitled to receive the pensionarybenefits with reference to the relevant provisions. Iam therefore, directed to request you to settle thecase in the light of the above and taken a decision inregard to allowing the Family Pension DCRG to the saidThiru R.Bharathi. 4.As regard F.B.F., according toG.O.Ms.806/Finance/219.83 the F.B.F.benefit is payableto the legal heir even when the nomination made is notvalid. Hence the F.B.F. amount can be paid to ThiruR.Bharathi as a legal heir if no nomination other thanthat of Thiru R.Bharathi had been made by ThiruSakkarai.”10.Thus it is evident that the respondents accepted the claim ofthe petitioner as adopted son of K.Sakkarai and the petitioner wassanctioned with all terminal benefits. The Government order issuedin G.O.Ms.No.2899 Labour and Employment department dated 23.12.1988was issued to prevent the persons seeking compassionate groundappointment on false ground of adoption. In the Government Order,it is stated that instances of cases where adoption has taken placeafter the death of the Government servant, have been brought to thenotice of the Government. In the said order it is further statedthat the legally adopted son/unmarried daughter of the deceasedGovernment servant is eligible for compassionate appointment only ifthe adoption was made and registered by the deceased Governmentservant during the life time of the Government servant. 11.As rightly contended by the learned counsel for thepetitioner the petitioner’s adoption was made on 15.6.1976 and theadopted father namely K.Sakkarai died on 11.1.1982. Hence the said https://hcservices.ecourts.gov.in/hcservices/ adoption already taken place as early as on 15.6.1976 cannot beregistered. In so far as the petitioner is concerned, the conditionscontained in the said G.O. is an impossibility of performance.Section 6 of the Hindu Adoptions and Maintenance Act, 1956 alsocontemplates the requirement for a valid adoption, which reads asfollows:6.REQUISITES OF A VALID ADOPTION -- No adoption shallbe valid unless---(i)the person adopting has the capacity, and alsothe right, to take in adoption;(ii)the person giving in adoption has the capacity todo so;(iii)the persons adopted is capable of beingtaken in adoption; and (iv)the adoption is made in compliance with the otherconditions mentioned in this Chapter."12.Taking into account of the said statutory provision and theclaim made by the petitioner, the City Government Pleader has alreadygiven an opinion and the said opinion was accepted by the Governmentand acted upon by its letter dated 18.8.1987. Hence, there is a validand legal presumption that the adoption of the petitioner by the saidK.Sakkarai is valid as the same has no ambiguity. Further thepetitioner applied for compassionate appointment which was dulyverified by the Tahisilar and sent a report to the second respondenton 1.6.1992. It is also stated in the report that the petitionerstudied upto B.Sc., and is the adopted son of said K.Sakkarai and onenquiry the petitioner was in indigent circumstances and therefore,compassionate appointment can be given to the petitioner. Based onthe said recommendation made by the Tahsildar, the second respondentissued the appointment order to the petitioner and he was given aposting at the Office of the Assistant Educational Officer, T.Nagar,Chennai and during the joining time also, the petitioner’s claimsand certificates were verified by the Assistant Educational Officer.13.On the basis of the above facts, the petitioner has to betreated that he was validly given appointment on compassionateground. The Government Order issued in the year 1988 cannot beapplied retrospectively. The said issue was also considered by thiscourt in W.P.No. 20200 of 1998 by its Judgment dated 11.10.1002. Inparagraph Nos. 6 to 8 is it is held as follows:6. The relevant portion of G.O.Ms.No.2899 dated23.12.1998 is to the following effect :- https://hcservices.ecourts.gov.in/hcservices/ “ . . . According the orders governing thescheme of providing employment assistance to adependant of a Government servant who dies in harnessleaving his family in indigent circumstances, a legallyadopted son and legally adopted unmarried daughter ofthe deceased Government servant is also eligible forappointment on compassionate grounds subject to allother conditions being satisfied. Instances of caseswhere adoption has taken place after the death ofGovernment servant have been brought to the notice ofGovernment and orders of Government for providingemployment to such adopted sons have been sought for. 2. Employment assistance on compassionategrounds is provided with a view to give immediate reliefto the family of deceased Government servant aftertaking into account the indigent circumstances of thefamily prevailing at the time of death of the Governmentservant. Though the adoption made and registered by thewidow after the death of the Government servant may bevalid in law, adopted member was not a member ofthe family of the deceased Government servant at the timeof the death of Government Servant. If employmentassistance is provided to a person adopted after thedeath of the Government servant it would only encourage tocircumvent the orders governing the scheme and deriveunintended benefits under the above scheme. It istherefore, clarified that the legally adoptedson/unmarried adopted daughter of the deceasedGovernment servant is eligible for compassionateappointment only if the adoption was made andregistered by the deceased Government servant duringthe life time of the Government servant and also subjectto other conditions prescribed by the Government forsuch compassionate appointment being fully satisfied.”(emphasis supplied)7. From paragraphs 1 and 2 of the order, which areextracted above, particularly the emphasised portion, itis apparent that the intention of the Government is toprevent the claim of appointment by an adopted child wherethe adoption is made by the widow after the death ofthe Government servant. If the order is read in itsentirety, it is apparent that the clear intention of theGovernment is to prevent the persons, who are adoptedafter the death of the Government servant, to claimemployment on compassionate ground. Even if the lawpermits the widow to adopt after the death of thehusband and such adopted child is considered as the https://hcservices.ecourts.gov.in/hcservices/ child of the deceased husband under the Hindu Adoption andMaintenance Act, the intention of the Government isto provide employment only to the person who is alreadyadopted during the lifetime of the employee.8. It has been argued that even if a person is adoptedduring the lifetime of the employee, but there is noregistered deed of adoption, such person would not beentitled to claim employment on compassionate ground inview of the clarification dated 23.12.1988. It has to beremembered that for any adoption to be valid, theceremony of adoption, that is to say, giving and takinghave to take place and mere execution of a registereddeed of adoption is not sufficient. The registration ofthe document relating to adoption only raises astatutory presumption regarding adoption itself asapparent from the provisions contained in Section 16 ofthe Hindu Adoption and Maintenance Act. Therefore, aregistered deed of adoption signed in the mannerindicated in Section 16 only raises a statutorypresumption, but does not constitute adoption by itself.The insistence of the Government for the registereddocument is only for the purpose of satisfying itselfregarding the adoption because at the stage ofconsidering whether benefit should be given or not theemployer would not be in a position to find out aboutthe actual adoption and it is expected to act only ifthere is a registered document. This does not, however,mean that where there is unchallenged materialrelating to adoption, such an adopted child is to beignored for the purpose of employment on compassionateground merely because there is no registered document.For example, supposing there is a decree declaring thestatus of an adopted son, would it be open to theGovernment to ignore the decree merely because there is noregistered deed of adoption. In other words, where thereis sufficient materials regarding adoption, it would notbe proper to ignore the application for appointment oncompassionate ground merely because there is noregistered deed of adoption. In the present case, asalready indicated, the deceased employee himself hadnominated the adopted child as his nominee long before hisdeath and in view of such official record, there washardly any scope to entertain any doubt regarding thematter."14.From the above referred Judgment it is clear that the saidGovernment Order cannot be given retrospective effect, that means theadoption made prior to the issuance of the said G.O. are to betreated as valid even without registration. I am in entire agreement https://hcservices.ecourts.gov.in/hcservices/ with the above said judgment. Further, after verifying theeligibility of the petitioner and accepting the adoption, the secondrespondent having given appointment to the petitioner therefore evenassuming that the same is in violation of the Government Order, thesame 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 willnot be in a position to get appointment in any Government service dueto age bar.15.In W.P.No. 42656 of 2006 dated 26.3.2009, I have set aside asimilar termination order, wherein the petitioner was givenappointment on compassionate ground eventhough two of his brotherswere employed in a Private Company. There was no suppression of factand the respondents herein appointed the petitioner it was held thatthe termination was bad, by following the Judgments of the Hon'bleSupreme Court. In paragraph Nos. 5 to 7, it is held as follows:"5. Similar issue was considered by the SupremeCourt in the decision reported in 2002 AIR SCW 2684(Union of India and others V.K.P.Tiwari). Paragraph 4and 5 of the Judgment reads as follows:"It is necessary in this case to examine eitherquestions of law or fact arising in the matter.Suffice to say that the respondent has been appointednow and has been in service for more than five years.We do not think, it would be appropriate to disturbthat state of affairs by making any other orderresulting in uprooting the respondent from hislivelihood.5. In that view of the matter, we decline tointerfere with the order made by the High Court. Theappeals are accordingly dismissed."Following the said Judgment, in W.P.No.26858 of2006, dated 17.7.2008, this Court allowed a similarwrit petition wherein also the compassionateappointment was cancelled on the ground that at thetime of the death of the petitioner's mother, thepetitioner's father was in employment. In W.P.No.35002of 2006 also a similar issue was considered wherein thepetitioner was given compassionate appointment due tothe death of his father, eventhough petitioner'sbrother was in employment. 6. In the decision reported in 2009(2) Supreme 271(D.M.Premkumari Vs.The Divisional Commissioner, MysoreDivision and others) also a similar issue arose withregard to the cancellation of community certificate.The Supreme Court in para 11 to 16 held as follows:"Having given our anxious consideration to thecase pleaded by the learned counsel for the parties, weare of the view, that it would not be desirable to https://hcservices.ecourts.gov.in/hcservices/ decide this case on merits. If we have to do it, wemight have to tell the appellant that she might have togo out of the employment. This, in our opinion, wouldcause great hardship and injustice to the employment.12. The appellant, as we have noticed earlier, wasappointed as a Primary School Teacher sometime in theyear 1994. At the time of her appointment, she hadproduced the caste certificate issued by the Tahsildar.She might not have understood the nuances of legalterminologies like Group 'B' Category, Group 'D'Category etc., and therefore, now she is caught in the"cobweb".13. The District Caste Verification Committee,which was asked to verify the appellant's claim, isjustified in informing the appointing authorities that,strictly going by the Government's orders issued in1986, the appellant could not have claimed anyreservation under Group 'B' category. We cannot findfault with their understanding of the Government Order.However, the learned Single Judge, may be taking a verysympathetic view of the matter, has come to the rescueof a poor primary school teacher. The Division Benchhas strictly applied the true interpretation thatrequires to be placed while constituting Article 15(4)and Article 16(4) of the Constitution. Therefore, wecannot find fault with the orders passed by theDivision Bench of the Karnataka High Court also.14. This Court, while entertaining the specialleave petition, had granted the status-quo order. Byvirtue of that order, the appellant is continuing towork as a primary school teacher. At this stage, ifthe appointment of the appellant is struck down and ifshe is now asked to seek employment elsewhere, in ouropinion, it would cause great hardship and injustice,for the reason by now she must ave crossed the upperage limit for seeking public employment and she may notget any employment anywhere. It is not the case of theother side also, that if the appellant's service iscontinued, it would cause any prejudice to any otherapplicant.15. "The law is merciless", is a most frequentlyquoted saying. It has led people to mistakenly thinkthat it is separated from feelings of righteousness.We have become used to the understanding that suchemotions as indignation, sorrow and compassionateshould not exist in legal cases, especially not injudiciary. This, in our view, is a mis-understanding.Judiciary has very strong sense of justice and it worksto maintain social justice and fairness. We hasten toadd, judiciary does not believe in misplaced sympathy. https://hcservices.ecourts.gov.in/hcservices/

16. In view of the above discussion and keeping inview the peculiar facts and circumstances of the case,we dispose of this appeal, without going into themerits of the case. In order to do completed justice,we direct the respondents herein, not to dislodge theappellant from the post of primary school teacher.This order of ours shall not be treated as a precedentin any other case."7. Eventhough, in the said decision it is statedthat the said order shall not to be treated as aprecedent in any other case, the facts in this case aresome what similar to the said case and the petitionerhaving been allowed to continue for over 14 years inservice and having regard to the fact that thepetitioner is age barred to get any other appointmentin Government services, I am of the view that theimpugned order is liable to be setaside on equitablegrounds."16.In W.P.No. 20200 of 1998 dated 11.10.2002 , the very sameissue as to whether even irregular appointment can be cancelledafter a lapse of several years was considered and in paragraph Nos.9 to 12, it is held as follows: "9. Even assuming that G.O.Ms.No.2899 dated23.12.1988 would be otherwise applicable, such G.O.,cannot be given retrospective effect and it is tobe made applicable to the adoptions which had takenplace after 23.12.1988 and not to the adoptions whichhad taken place prior to that date.10. Learned counsel appearing for thepetitioner has submitted with enough justificationthat whatever might be the irregularity in theoriginal employment, there was no scope forterminating the services of the petitioner in 1995 andthat too without issuing any notice. He hasfurther submitted that the High Court on the earlieroccasion had quashed the order of termination and theonly question was relating to regularisation for whicha direction was made to the Government forconsidering the representation and it was not open tothe respondents to go behind the earlier order.11. Even assuming that there was someirregularity in the earlier appointment made inthe year 1991, the petitioner had continued for about 4years and thereafter there was no justification tosuddenly terminate the services even without issuingany notice. https://hcservices.ecourts.gov.in/hcservices/ As observed in A.I.R. 1977 SC 112 ( NAYAGAR CO-OPERATIVE CENTRAL BANK v. NARAYAN), it has to be heldthat even if a person is appointed to the posterroneously and was allowed to continue on the saidpost for a long time, he could not be removed from thesaid post in the garb of rectification ofmistake as the doctrine of acquiescence is applicable. 12. For the aforesaid reasons, the writpetition is allowed and the impugned order is quashedand the petitioner’s appointment should be deemed tobe regular and continuous for all purpose.However, it is made clear that no amount would be paidto the petitioner for the past period as backwagesand future wages have to be paid from the date ofrejoining. The petitioner should be allowed to rejoinwithin a period of one month from the date of thecommunication of the order. There will be no order asto costs."The first respondent by the impugned order dated 28.6.1998 held thatthe appointment order given to the petitioner was improper and heshould be terminated. The said order was passed without any noticeto the petitioner. By the order of the second respondent, thepetitioner was appointed on 9.10.1992 and when the order is to becancelled after seven years, the petitioner is bound to be heardsince the petitioner's right to continue in the post is affected.Thus there is violation of principles of natural justice. 17.In this case also the doctrine of acquiescence is applicableas the respondents after verifying the petitioner's claim orderedappointment of the petitioner. There is no suppression of factalleged against the petitioner. If the impugned order is upheld thepetitioner's right will be seriously prejudiced. The petitioner alsosettled in his life by virtue of the appointment given in the year1992. It is also relevant to note that till date no one has raisedany doubt about the petitioner's adoption by the said lateK.Sakkarai. So long as the said adoption is found valid, thepetitioner is entitled to get all his rights as an adopted son. Ifthe impugned order is upheld, the petitioner's right to livelihoodguaranteed under Article 21 of the Constitution of India will beaffected. The petitioner on being appointed on compassionate groundat the age of 23 years due to the death of his adopted father,isentitled to continue in service till his date of superannuationunless he is removed from service due to any misconduct. On hisappointment, he get a right to get salary and by receiving his salaryhe earns his livelihood and on getting married, the salary becomesthe livelihood of his family and on termination of his servicewithout any misconduct, not only his right to livelihood, but, alsothe livelihood of his entire family is affected. Thus, it is evident https://hcservices.ecourts.gov.in/hcservices/ that by the action of the respondents in terminating his service, therespondents deprived the rights guaranteed under Article 21 of theConstitution of India.18. Taking all the above facts and the law into consideration,I hold that the the impugned order passed by the first respondentcannot be sustained and consequently the Writ Petition is allowed.No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rpaTo1.The Secretary to GovernmentSchool Education (M.1) DepartmentFort St.George, Chennai 9.2.The Director of School EducationChennai 600 006.+ 1 CC to Government Pleader,SR.12627+ 1 CC to Mr.S.Vadivelu,Advocate,SR.12162W.P.No. 41518 of 2006BS(CO)EM/20.4.09