IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.04.2009 CORAM THE HON'BLE JUSTICE Mr.N.PAUL VASATHAKUMAR W.P.No.41518 of 2006 R.Bharathi .. Petitioner vs 1. The Secretary to Government School Education (M.1) Department Fort St.George, Chennai 9. 2. The Director of School Education Chennai 600 006. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to quash the order of the first respondent passed in Letter No.11361/M.1/94-19 dated 28.6.1999 and forbear the respondents from taking any action pursuant to the impugned order of the first respondent in Letter No.11361/M.1/94-19 dated 28.6.1999. For Petitioner : Mr.S.Vadivelu For Respondents : Mr.A.Edwin Prabhakar, AGP ORDER The prayer in the Writ Petition is to quash the order dated 28.6.1999 giving direction given by the first respondent to the second respondent to terminate the petitioner from service. 2.While admitting the Original Application, the Tribunal granted interim stay on 20.7.1999 and the same was ordered to continue until further orders and by virtue of the interim stay, the petitioner is continuing in service as on date. 3.The case of the petitioner is that he is the adopted son of one K.Sakkarai who was a bachelor . The said Sakkarai was employed as a Secondary Grade Teacher in Government Higher Secondary School, M.M.D.A. Colony, Arumbakkam, Chennai, and he died on 11.1.1982 while in service. The petitioner was given on adoption at the age of seven by his natural father under the Hindu Customs and Rites and the adoption 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 sister Rajambal gave sworn affidavit before the XV Metropolitan Magistrate on 16.7.1992. Two witnesses who attended the adoption ceremony have also given sworn affidavit on 14.3.1991. For paying the terminal benefits, to consider the claim of the petitioner as a adopted son, the first respondent sought for legal opinion from the City Government Pleader and based on the legal opinion given, the Director of School Education has permitted to pay the family pension, DCRG to the petitioner by Government letter dated18.8.1987. The Collector’s Office, Chennai, issued a certificate on 20.7.1982 and issued a Legal Heir Certificate in favour of the petitioner stating that the petitioner is the adopted son of late K.Sakkarai and one Ranganathan is the brother of the said Sakkarai and Rajammal is the sister of the said person. 4.The Accountant General, Chennai, in his letter dated 6.2.1992 released the terminal benefits of the said K.Sakkarai in favour of the petitioner as an adopted son. The petitioner submitted application for appointment on compassionate ground due to the death of the adopted father. The Tahsildar, Egmore-Nungambakkam Taluk, recommended the case of the petitioner for appointment on compassionate ground and thereafter the second respondent through his proceedings dated 7.10.1992 appointed the petitioner under Rule 10(a) (1) of the Tamil Nadu State and Subordinate Service Rules as Junior Assistant and posted the petitioner at the Office of the Assistant Educational Officer, T.Nagar in the place of one Tmt. Saveriammal, Junior Assistant already transferred. In the said order it is further stated that the Assistant Educational Officer, T.Nagar has to verify the certificates produced by the petitioner before permitting the petitioner to join in his Office. The petitioner joined the in the said Office on 9.10.1992 and is continuously serving. By the impugned order dated 28.6.1999, the first respondent directed the second respondent to terminate the petitioner from his service on the ground that the petitioner was given appointment contrary to the Government Order issued in G.O.Ms.No.2899 Labour and Employment Department dated 23.12.1988. 5.The said order is challenged in O.A.No.3875 of 1999 before the State Administrative Tribunal on the ground that the petitioner having been adopted by the said Teacher namely K.Sakkarai on 15.6.1976 and the adopted father having been passed away in the year 1982, the petitioner cannot get a registered adoption deed in terms of the Government Order which was issued in the year 1988. The genuiness of the adoption of the petitioner by the said K.Sakkarai was already gone into by the Government and after accepting the legal opinion given by the City Government Pleader and the petitioner was given terminal benefits as per the order of the first respondent dated 18.8.1987, the respondents cannot raise any doubt with regard to the genuiness of the petitioner’s adoption. https://hcservices.ecourts.gov.in/hcservices/ 6. The respondents have filed a counter affidavit wherein it is stated that the appointment given to the petitioner in the year 1992 is a irregular appointment and the same is contrary to G.O.Ms.No.2899 Labour and Employment dated 23.12.1988, as the petitioner’s adoption has not been registered as required under the said Government Order. 7. The learned counsel for the petitioner submitted that the Government Order issued in the year 1988 cannot be applied to the adoption which has taken place prior to the issuance of the Government Order as it has no retrospective application. Even assuming that the Government Order is applicable, the petitioner having been appointed after due verification of the certificates and the appointment order having been issued by the second respondent and the petitioner having been permitted to join as Junior Assistant on 7.10.1992 at the age of 30 years and having regard to the fact that the petitioner is continuing in service as on date, cannot be sent out of his employment at this stage since he is aged 40 years and at this belated stage he may not be in a position to get appointment in Government Service due to over age. 8.Heard the learned Additional Government Pleader for the respondents. 9.It is not in dispute that the petitioner was adopted by the said 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 said K.Sakkarai gave affidavits in support of the petitioner’s adoption. The petitioner also obtained a Legal Heirship Certificate after the death of the said adopted father who died in the year 1982. The said Legal Heir Certificate and other details were given to the City Government Pleader, Chennai who gave opinion stating that the petitioner is a validly adopted son of the said K.Sakkarai and he can be given the terminal benefits payable to the said K.Sakkarai. Based on the said legal opinion given, the first respondent through letter No.116266/M1/B5-13 dt 18.8.1987 passed the following order: “Thiru K.Sakkarai, Secondary Grade Teacher’s Government High School, M.M.D.A.Colony, Madras 106 died on 11.1.1983 at the Government Hospital at Madras while in service. One R.Bharathi has claimed that he is the adopted son of the deceased Sakkarai who died as a bachelor and that he is eligible to all the benefits of the deceased Sakkarai as the Legal Heir. 2.In his opinion 1621/B5 dt. 29.4.85 the City Government Pleader has after looking into the related papers given his opinion that there was an adoption by the deceased Sakkarai and that the said R.Barathi is the 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 the matter. 3.According to 6 of the Hindu Adoption and Maintenance Act 1956 (Central Act 78 of 1956) 40 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 adoption 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 Chapter I of that Act. In view of the above position, if the adoption in question of Thiru R.Bharathi by Thiru Sakkarai satisfies the said conditions, the adoption is valid. Then he will be entitled to receive the pensionary benefits with reference to the relevant provisions. I am therefore, directed to request you to settle the case in the light of the above and taken a decision in regard to allowing the Family Pension DCRG to the said Thiru R.Bharathi. 4.As regard F.B.F., according to G.O.Ms.806/Finance/219.83 the F.B.F.benefit is payable to the legal heir even when the nomination made is not valid. Hence the F.B.F. amount can be paid to Thiru R.Bharathi as a legal heir if no nomination other than that of Thiru R.Bharathi had been made by Thiru Sakkarai.” 10.Thus it is evident that the respondents accepted the claim of the petitioner as adopted son of K.Sakkarai and the petitioner was sanctioned with all terminal benefits. The Government order issued in G.O.Ms.No.2899 Labour and Employment department dated 23.12.1988 was issued to prevent the persons seeking compassionate ground appointment on false ground of adoption. In the Government Order, it is stated that instances of cases where adoption has taken place after the death of the Government servant, have been brought to the notice of the Government. In the said order it is further stated that the legally adopted son/unmarried 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. 11.As rightly contended by the learned counsel for the petitioner the petitioner’s adoption was made on 15.6.1976 and the adopted 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 be registered. In so far as the petitioner is concerned, the conditions contained in the said G.O. is an impossibility of performance. Section 6 of the Hindu Adoptions and Maintenance Act, 1956 also contemplates the requirement for a valid adoption, which reads as follows: 6.REQUISITES OF A VALID ADOPTION -- 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 adoption has the capacity to do so; (iii) the persons adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter." 12.Taking into account of the said statutory provision and the claim made by the petitioner, the City Government Pleader has already given an opinion and the said opinion was accepted by the Government and acted upon by its letter dated 18.8.1987. Hence, there is a valid and legal presumption that the adoption of the petitioner by the said K.Sakkarai is valid as the same has no ambiguity. Further the petitioner applied for compassionate appointment which was duly verified by the Tahisilar and sent a report to the second respondent on 1.6.1992. It is also stated in the report that the petitioner studied upto B.Sc., and is the adopted son of said K.Sakkarai and on enquiry the petitioner was in indigent circumstances and therefore, compassionate appointment can be given to the petitioner. Based on the said recommendation made by the Tahsildar, the second respondent issued the appointment order to the petitioner and he was given a posting at the Office of the Assistant Educational Officer, T.Nagar, Chennai and during the joining time also, the petitioner’s claims and certificates were verified by the Assistant Educational Officer. 13.On the basis of the above facts, the petitioner has to be treated that he was validly given appointment on compassionate ground. The Government Order issued in the year 1988 cannot be applied retrospectively. The said issue was also considered by this court in W.P.No. 20200 of 1998 by its Judgment dated 11.10.1002. In paragraph Nos. 6 to 8 is it is held as follows: 6. The relevant portion of G.O.Ms.No.2899 dated 23.12.1998 is to the following effect :- https://hcservices.ecourts.gov.in/hcservices/ “ . . . According the orders governing the scheme of providing employment assistance to a dependant of a Government servant who dies in harness leaving his family in indigent circumstances, a legally adopted son and legally adopted unmarried daughter of the deceased Government servant is also eligible for appointment on compassionate grounds subject to all other conditions being satisfied. Instances of cases where adoption has taken place after the death of Government servant have been brought to the notice of Government and orders of Government for providing employment to such adopted sons have been sought for. 2. Employment assistance on compassionate grounds is provided with a view to give immediate relief to the family of deceased 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 supplied) 7. From paragraphs 1 and 2 of the order, which are extracted above, particularly the emphasised portion, it is apparent that the intention of the Government is to prevent the claim of appointment by an adopted child where the adoption is made by the widow after the death of the Government servant. If the order is read in its entirety, it is apparent that the clear intention of the Government is to prevent the persons, who are adopted after the death of the Government servant, to claim employment on compassionate ground. Even if the law permits the widow to adopt after the death of the husband and such adopted child is considered as the https://hcservices.ecourts.gov.in/hcservices/ child of the deceased husband under the Hindu Adoption and Maintenance Act, the intention of the Government is to provide employment only to the person who is already adopted during the lifetime of the employee. 8. It has been argued that even if a person is adopted during the lifetime of the employee, but there is no registered deed of adoption, such person would not be entitled to claim employment on compassionate ground in view of the clarification dated 23.12.1988. It has to be remembered that for any adoption to be valid, the ceremony of adoption, that is to say, giving and taking have to take place and mere execution of a registered deed of adoption is not sufficient. The registration of the document relating to adoption only raises a statutory presumption regarding adoption itself as apparent from the provisions contained in Section 16 of the Hindu Adoption and Maintenance Act. Therefore, a registered deed of adoption signed in the manner indicated in Section 16 only raises a statutory presumption, but does not constitute adoption by itself. The insistence of the Government for the registered document is only for the purpose of satisfying itself regarding the adoption because at the stage of considering whether benefit should be given or not the employer would not be in a position to find out about the actual adoption and it is expected to act only if there is a registered document. This does not, however, mean that where there is unchallenged material relating to adoption, such an adopted child is to be ignored for the purpose of employment on compassionate ground merely because there is no registered document. For example, supposing there is a decree declaring the status of an adopted son, would it be open to the Government to ignore the decree merely because there is no registered deed of adoption. In other words, where there is sufficient materials regarding adoption, it would not be proper to ignore the application for appointment on compassionate ground merely because there is no registered deed of adoption. In the present case, as already indicated, the deceased employee himself had nominated the adopted child as his nominee long before his death and in view of such official record, there was hardly any scope to entertain any doubt regarding the matter." 14.From the above referred Judgment it is clear that the said Government Order cannot be given retrospective effect, that means the adoption made prior to the issuance of the said G.O. are to be treated as valid even without registration. I am in entire agreement https://hcservices.ecourts.gov.in/hcservices/ with the above said judgment. Further, after verifying the eligibility of the petitioner and accepting the adoption, the second respondent having given appointment to the petitioner therefore even assuming that the same is in violation of the Government Order, the same 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 will not be in a position to get appointment in any Government service due to age bar. 15.In W.P.No. 42656 of 2006 dated 26.3.2009, I have set aside a similar termination order, wherein the petitioner was given appointment on compassionate ground eventhough two of his brothers were employed in a Private Company. There was no suppression of fact and the respondents herein appointed the petitioner it was held that the termination was bad, by following the Judgments of the Hon'ble Supreme Court. In paragraph Nos. 5 to 7, it is held as follows: "5. Similar issue was considered by the Supreme Court in the decision reported in 2002 AIR SCW 2684 (Union of India and others V.K.P.Tiwari). Paragraph 4 and 5 of the Judgment reads as follows: "It is necessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood. 5. In that view of the matter, we decline to interfere with the order made by the High Court. The appeals are accordingly dismissed." Following the said Judgment, in W.P.No.26858 of 2006, dated 17.7.2008, this Court allowed a similar writ petition wherein also the compassionate appointment was cancelled on the ground that at the time of the death of the petitioner's mother, the petitioner's father was in employment. In W.P.No.35002 of 2006 also a similar issue was considered wherein the petitioner was given compassionate appointment due to the death of his father, eventhough petitioner's brother was in employment. 6. In the decision reported in 2009(2) Supreme 271 (D.M.Premkumari Vs.The Divisional Commissioner, Mysore Division and others) also a similar issue arose with regard to the cancellation of community certificate. The Supreme Court in para 11 to 16 held as follows: "Having given our anxious consideration to the case pleaded by the learned counsel for the parties, we are 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, we might have to tell the appellant that she might have to go out of the employment. This, in our opinion, would cause great hardship and injustice to the employment. 12. The appellant, as we have noticed earlier, was appointed as a Primary School Teacher sometime in the year 1994. At the time of her appointment, she had produced the caste certificate issued by the Tahsildar. She might not have understood the nuances of legal terminologies 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, is justified in informing the appointing authorities that, strictly going by the Government's orders issued in 1986, the appellant could not have claimed any reservation under Group 'B' category. We cannot find fault with their understanding of the Government Order. However, the learned Single Judge, may be taking a very sympathetic view of the matter, has come to the rescue of a poor primary school teacher. The Division Bench has strictly applied the true interpretation that requires to be placed while constituting Article 15(4) and Article 16(4) of the Constitution. Therefore, we cannot find fault with the orders passed by the Division Bench of the Karnataka High Court also. 14. This Court, while entertaining the special leave petition, had granted the status-quo order. By virtue of that order, the appellant is continuing to work as a primary school teacher. At this stage, if the appointment of the appellant is struck down and if she is now asked to seek employment elsewhere, in our opinion, it would cause great hardship and injustice, for the reason by now she must ave crossed the upper age limit for seeking public employment and she may not get any employment anywhere. It is not the case of the other side also, that if the appellant's service is continued, it would cause any prejudice to any other applicant. 15. "The law is merciless", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassionate should not exist in legal cases, especially not in judiciary. This, in our view, is a mis-understanding. Judiciary has very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy. https://hcservices.ecourts.gov.in/hcservices/ 16. In view of the above discussion and keeping in view the peculiar facts and circumstances of the case, we dispose of this appeal, without going into the merits of the case. In order to do completed justice, we direct the respondents herein, not to dislodge the appellant from the post of primary school teacher. This order of ours shall not be treated as a precedent in any other case." 7. Eventhough, in the said decision it is stated that the said order shall not to be treated as a precedent in any other case, the facts in this case are some what similar to the said case and the petitioner having been allowed to continue for over 14 years in service and having regard to the fact that the petitioner is age barred to get any other appointment in Government services, I am of the view that the impugned order is liable to be setaside on equitable grounds." 16.In W.P.No. 20200 of 1998 dated 11.10.2002 , the very same issue as to whether even irregular appointment can be cancelled after 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 dated 23.12.1988 would be otherwise applicable, such G.O., cannot be given retrospective effect and it is to be made applicable to the adoptions which had taken place after 23.12.1988 and not to the adoptions which had taken place prior to that date. 10. Learned counsel appearing for the petitioner has submitted with enough justification that whatever might be the irregularity in the original employment, there was no scope for terminating the services of the petitioner in 1995 and that too without issuing any notice. He has further submitted that the High Court on the earlier occasion had quashed the order of termination and the only question was relating to regularisation for which a direction was made to the Government for considering the representation and it was not open to the respondents to go behind the earlier order. 11. Even assuming that there was some irregularity in the earlier appointment made in the year 1991, the petitioner had continued for about 4 years and thereafter there was no justification to suddenly terminate the services even without issuing