IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 05.07.2011 Coram THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.248 of 2007 (O.A.No.3442 of 2001) D.C.Chenchiah ... Petitioner Vs. 1.State of Tamil Nadu represented by Secretary to Government, Health and Family Welfare Department, Chennai -9. 2.Director of Public Health and Preventive Medicine, Chennai -6. 3.Deputy Director of Health Services, Thiruvallur. ... Respondents This petition came to be numbered by transfer of O.A.No.3442 of 2001 from the file of the Tamil Nadu Administrative Tribunal, praying for a Writ of Certiorarified Mandamus, to call for the records connected with letter No.47110/AB-1/99-7 dt 27.4.2001 of Government in Health and Family Welfare Department and R.No.119/A5/98 dt 21.5.2001 of the Deputy Director of Health Services, Thiruvallur and quash the same consequently to direct the respondents to reinstate the petitioner in service, treating the period he was out of employment as duty for all purposes. For Petitioner : Mr.S.Ilamvaludhi For Respondents : Mr.R.Ravichandran,AGP O R D E R The petitioner filed O.A.No.3442 of 2001 before the Tamil Nadu State Administrative Tribunal, seeking to challenge an order of the first respondent dated 27.04.2001 and the order of the third respondent dated 21.05.2001 and seeks to set aside same and for a direction to reinstate him and also to treat the period of non-employment as https://hcservices.ecourts.gov.in/hcservices/ duty for all purposes. 2. The Tribunal admitted the OA on 29.05.2001 and granted an interim stay. The said interim order came to be extended until further orders by an order dated 21.06.2001. 3. On notice from the Tribunal, the respondents have filed a reply affidavit dated 22.02.2002. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re- numbered as W.P.No.248 of 2007. 4. When the matter came up before this Court on 30.06.2011, the petitioner has filed an affidavit setting forth the circumstances under which he was adopted by his father D.Chenchiah. 5. It is the case of the petitioner that his father was a Watchman in the Government Primary Health Centre at Poonimangadu. He died in harness on 17.03.1990. Even before his death, on 30.11.1978, he filed a nomination form with the Department, nominating the petitioner to withdraw the Family Benefit Fund amount in case of his death. The petitioner studied in the W.T.Masilamani Mudaliar High School, Walajabad and in the transfer certificate issued on 07.07.1983, his father's name was recorded as D.Chenchiah. The Tahsildar, Thiruthani also issued a legal heir certificate dated 13.12.1990 showing that the petitioner was the adopted son and the only legal heir of late D.Chenchiah. 6. The petitioner on account of the death of his adopted father filed an application for grant of employment assistance on compassionate grounds. The petitioner was in turn informed by the second respondent that unless he produced a certificate to the effect that he was a legally adopted son of late D.Chenchiah, his request cannot be considered. Therefore, the petitioner filed an Original Petition being O.P.No.2 of 1992 before the District Munsif Court, Thiruthani for grant of Succession Certificate. The learned District Munsif, Thiruthani granted Succession certificate on 30.04.1992. The certificate enabled the petitioner to collect Family Benefit Fund and Gratuity Fund and other benefits due to his late father D.Chenchiah. 7. On the basis of the said certificate, the second respondent granted an order of appointment dated 21.09.1993 to the petitioner as a Watchman in a temporary capacity and posted him to work at the Primary Health Centre, Kattur in a regular vacancy caused by the death of one Selvam, who died during July 1993. He was also brought under time scale of pay. His pay was also revised on 01.01.1996. After the completion of more than seven years of service, the second respondent Director of Public Health and Preventive Medicine addressed a letter to the Government dated https://hcservices.ecourts.gov.in/hcservices/ 01.11.2000 to ratify the appointment of the petitioner on compassionate grounds. But however the third respondent by proceedings dated 21.05.2001 terminated the services of the petitioner and pointed out that an adopted son of a deceased Government servant was eligible for compassionate appointment only if the adoption was made and registered by the deceased Government servant during his life time and a reference was also made to G.O.Ms.No.2899 Labour and Employment Department dated 23.12.1988. Challenging the same, the writ petition came to be filed. 5. In the reply affidavit filed, it was stated that the deceased Government servant late D.Chenchiah did not register the adoption of the petitioner during his life time and the adoption certificate was issued only after the demise of the Government servant and the same is contrary to Government instructions. It was also admitted that the petitioner had received the terminal benefits including Family Benefit Fund and Special Provident Fund on the basis of the nomination but that cannot be a criteria for accepting the adoption of the petitioner. The transfer certificate issued in his favour is based upon the statement of the petitioner and no credence can be attached to it. Similar was the case of the legal heir certificate issued. It was also stated that his appointment itself was subject to ratification by the Government and therefore, he has no right for continuance. But with reference to the petitioner obtaining Succession Certificate from the District Munsif Court, Thiruthani, in the counter affidavit, the first respondent in paragraph 6 had stated as follows:- "6. ...The adoption certificate was issued only after the demise of the deceased employee i.e. on 30.04.1992. Moreover the adoption certificate was issued only for the petitioner to get the Family Benefit Fund, Gratuity and other benefits if any due for the deceased employee from the Government Primary Health Centre, Poonimangadu. Thus the adoption certificate is not a valid one, as it was not registered during the life time of the deceased employee." 6. The petitioner in the affidavit filed before this Court had stated that he himself was an Orphan and his father was a bachelor and he had enjoyed the family pension till he reached the age of 20 years. It was also stated by him that before his termination, he had rendered eight years of service and as of now, he has served more than 18 years and hence, he should not be sent out for untenable reasons. 7. In the present case, the only reason for disqualifying the petitioner from being denied the employment assistant is on the condition placed by the State Government vide G.O.Ms.No.2899, dated 23.12.1988. In paragraph 2 of the said Government order, it was stated as follows:- "2. Employment assistance on compassionate grounds is provided with a view to give immediate relief to the family of deceased https://hcservices.ecourts.gov.in/hcservices/ Government servant after taking into account the indigent circumstances of the family prevailing at the time of death of the Government servant. Though the adoption made and registered by the widow after the death of the Government Servant may be valid in law, adopted member was not a member of the family of the deceased Government servant at the time of the death of Government Servant. If employment assistance is provided to a person adopted after the death of the Government servant it would only encourage to circumvent the orders governing the scheme and derive unintended benefits under the above scheme. It is therefore, clarified that the legally adopted son/unmarried adopted daughter of the deceased Government servant is eligible for compassionate appointment only if the adoption was made and registered by the deceased Government servant during the life time of the Government servant and also subject to other conditions prescribed by the Government for such compassionate appointment being fully satisfied." (Emphasis added) 8. From the above passage, it is clear that the anxiety of the Government was to prevent bogus claims of persons to claim privileges of a deceased government servant on the basis that they were the adopted children of that servant. It must be noted that the aim of the Government was to assist even an adopted child on par with a biological child in the matter of granting employment assistance on compassionate grounds. If that is the dominant aim of the Government, then the requirement to produce proof should be based upon the Personal Laws of the said government servant. It will be a dichotomy if the government grants employment assistance to a person who produces a registered document which only provides for a presumption and not a legal foundation to get an employment but on the other hand, if a person who is validly adopted as per Law and deemed to get all privileges conferred under Section 12 will be denied only on the procedural requirement of not having done the registration being denied the employment assistance. It can never be the intention of any rule maker. While undoubtedly, the Government should ward off any bogus or false claims on this account, yet they cannot deny the legitimate demand of an adopted child in claiming the privileges attached to the office of their adoptive parents. The Government Order emphasises more on the registration of the document while the government servant is still in service and not after he leaves the service. In the present case, the adoption was done while the late D.Chenchiah was very much in service. Technically, the Government Order will not apply to the case of the petitioner. 9. The HAMA do not prescribe registration of an adoption as a mandatory requirement of law. It is more or less on par with Hindu Marriage Act, 1955 which so far had not made the registration of marriage as a compulsory requirement under law though the present day law makers are toying with the idea of making the registration compulsory. In case of government servant, who gets married https://hcservices.ecourts.gov.in/hcservices/ either before or after entering in the service, they do not require a registered certificate of marriage as a proof of marriage. Mostly, the Government will be satisfied with a declaration given by the Government servant regarding his marital status. It is only in case of any dispute, further requirement of asking a legal proof of such marriage will be sought for. It is not clear as to why the Government in the case of adoption should adopt a different yardstick of seeking for a registered document of adoption when that by itself is not a legal proof of adoption in terms of HAMA. 10. Infact Section 16 of HAMA only makes a presumption of valid adoption subject to a rebuttal evidence being produced to deny the existence of the adoption. Section 16 of HAMA came to be considered by the Supreme Court vide its judgment in Jai Singh v. Shakuntala reported in (2002) 3 SCC 634. The Supreme Court in that case held that the HAMA had allowed some amount of flexibility, otherwise the proof of adoption will be solely depend on a registered adoption deed. It is necessary to refer to the following passages found in paragraphs 1,2 and 8. "1.The matter under consideration pertains to the effect of statutory presumption as envisaged under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. For convenience sake, it would be worthwhile to note the provision for its true purport. Section 16 reads as below: "16.Presumption as to registered documents relating to adoption."Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved." 2. The section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. Mandate of the statute is rather definite since the legislature has used "shall" instead of any other word of lesser significance. Incidentally, however, the inclusion of the words "unless and until it is disproved" appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession " thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words "unless and until it is disproved" shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive depicting therein that the presumption https://hcservices.ecourts.gov.in/hcservices/ cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above. In the wake of the aforesaid, the observations of the learned Single Judge in Modan Singh v. Sham Kaur1 stand confirmed and we record our concurrence therewith. 8. The issue thus arises as to whether the High Court was justified in laying emphasis on the conduct of the adopted son. As noticed hereinbefore the presumption is a rebuttable presumption. While it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the court is not precluded from looking into it upon production of some evidence contra the adoption. Evidence, which is made available to the court for rebutting the presumption, can always be looked into and it is on production of that evidence that the High Court has recorded a finding of non-availability of the presumption to the appellant. 11. The petitioner is being non-suited only on the ground of non-registration and not on the basis of there being no valid adoption of the petitioner by his adoptive father. Even in the counter affidavit, the same stand was taken. The Deputy Director was mandated by the Government to deny the petitioner’s employment only on account of non-production of the registered document. 12. It must be noted that the order of the Government referred to cannot be mechanically interpreted. The petitioner's name was given in the nomination form for collecting all the terminal benefits. No doubt, it is true that a nominee receives amount only as a Trustee on behalf of the legal heirs. But in the present case, he is not only a mere nominee but he himself had enjoyed the terminal benefits including the Family Benefit Fund. Further the payment of Family Pension can be made only when the person comes within the term "Family" in terms of the Rules. Unless the petitioner is either a biological or an adopted son, the Government could not have paid the pensionary benefits to the petitioner until he attains majority. Apart from all these fats, the petitioner, applying a Succession Certificate before the valid Civil Court is also not denied. When once a valid Civil Court declares the right of the petitioner, the respondents cannot go behind the said order and mechanically rely upon the Government Order as found elsewhere. The Government Order is only to ward off false claims from strangers. But the law itself do not require a registration as a valid proof of adoption before terminating the service of the petitioner. These facts were not taken note of by the respondents and mechanical application of the Government order had been rendered. https://hcservices.ecourts.gov.in/hcservices/ 13. Under the circumstances, the writ petition stands allowed and the impugned order stands set aside. However, there will be no order as to costs. svki Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary to Government, State of Tamil Nadu Health and Family Welfare Department, Chennai -9. 2.Director of Public Health and Preventive Medicine, Chennai -6. 3.Deputy Director of Health Services, Thiruvallur. + 1 cc to Government Pleader SR.NO.39610 Order in W.P.No.248 of 2007 (O.A.No.3442 of 2001) PA (CO) ns 29/7/2011 https://hcservices.ecourts.gov.in/hcservices/