Jitendra Solanki vs Higher Education Department on 9 November, 2017

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WP No.8460 /2016
Indore, Dated: 9/11/2017
Shri V.K. Patwari learned counsel for petitioner.
Shri Pushyamitra Bhargav learned counsel for
respondents.

Heard.

By this writ petition the petitioner has challenged the
order dated 18/11/2016, Annex.P-6 by which his case for
compassionate appointment has been rejected.

The case of petitioner is that he is adopted son of late
Shri Khushiyalji Solanki who was working as Head clerk in the
respondent department and had died on 14/6/2007. The
petitioner had made an application on 20th July 2007 for
compassionate appointment and said application has been
rejected by the impugned order.

A reply has been filed by respondents taking the stand
that petitioner’s case for compassionate appointment was
considered as per terms of the existing policy dated 22/1/2007
wherein there was no provision for giving compassionate
appointment to the adopted son and by order dated 31/5/2008
the petitioner’s application was rejected on the ground that
compassionate appointment cannot be given to the adopted
son.

The petitioner appears to have approached the
respondents after new policy of compassionate appointment
dated 29th September 2014 was brought into force and
therefore the impugned order was issued.

Learned counsel for petitioner submits that no
communication was received in the year 2008. He further
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submits that adopted son stands on the same footing as a
biological son and that petitioner is entitled for compassionate
appointment.

Learned counsel for State has opposed the writ petition
submitting that valid adoption is not proved and that the policy
prevailing on the date of the consideration of application or on
the date of death is to be applied and said policy was of the
year 2007, therefore, the petitioner is not entitled for
compassionate appointment.

Having heard the learned counsel for parties and on
perusal of the record it is noticed that if the petitioner is
claiming himself to be adopted son of the deceased employee
then first of all he is required to show that he has been validly
adopted. The adoption deed has been placed on record as
Annex.P-3 which is dated 12th March 2007. The employee
concern had died on 14/6/2007.

Learned counsel for petitioner has not disputed that
petitioner at the time of alleged adoption was of 23 years of
age.

Learned counsel for State has drawn attention of this
court to Section 10 of the Hindu Adoptions and Maintenance
Act, 1956 which provides for the person to be made adopted on
the following terms:

“10. Persons who may be adopted- No person shall
be capable of being taken in adoption unless the
following conditions are fulfilled, namely,-

(i) he or she is Hindu;

(ii) he or she has not already been adopted;

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(iii) he or she has not been married, unless there is a
custom or usage applicable to the parties which permits
persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years,
unless there is a custom or usage applicable to the
parties which permits persons who have completed the
age of fifteen years being taken in adoption.”

As per clause (iv) of the aforesaid section, a person only
upto the age of 15 years can be taken in adoption unless
custom or usage applicable to the parties permits taking in
adoption after completion of 15 years of age is established.

The above analysis shows that unless the petitioner
proves that he has been validly taken in adoption, merely on
the basis of the adoption deed, Annex.P-3 he cannot be held
validly adopted son of the deceased employee.

Though learned counsel for petitioner has placed reliance
upon Coordinate Bench judgment of this court in the matter of
Manoj Kumar Nagre Vs Commissioner, Tribal Welfare
Department dated 29/2/2016 passed in WP No. 14521/2012
wherein a view has been taken that son includes adopted son
as also judgment of the Supreme court in the matter of
Basavarajappa Vs. Gurubasamma and others reported in
(2005)12 SCC 290 which also takes the view that on adoption,
the adoptee gets transplanted in the family in which he is
adopted with the same rights as that of a natural born son but
that alone is not sufficient because for claiming the benefit of
these judgments the petitioner is required to establish that he
has been validly taken in adoption.

Having regard to the aforesaid, I am of the opinion that
even though as per aforesaid judgments of the Coordinate
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Bench and the Supreme court, the reason given by the
respondents that the adopted son is not entitled may not be
correct, but petitioner cannot be granted any relief in the
present writ petition because without proving that he has been
validly adopted, the prayer made in the writ petition cannot be
granted. Hence writ petition is disposed off with a direction that
if the petitioner establishes that he has been validly adopted in
accordance with
Section 10 of the Act then his prayer can be
considered afresh in accordance with law.

C.C. as per rules.

(Prakash Shrivastava)
Judge

BDJ

Bhunes
Digitally signed by Bhuneshwar
Datt
DN: cIN, oHigh Court of
Madhya Pradesh,

hwar
ouAdministration,
postalCode452001, stMadhya
Pradesh,
2.5.4.203fb5bcda9fd75d95d6c
7cdcbd092ee5a74a94a5534aed

Datt 3a66d9385cfcfc201e0,
cnBhuneshwar Datt
Date: 2017.11.16 13:39:48 -08’00’

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