Mahesh Khande vs The State Of Maharashtra & Anr.

(PER : ABASAHEB D. SHINDE, J.)

At the outset, learned counsel for the petitioner seeks leave to correct the surname of the petitioner. Leave granted. Amendment to be carried out forthwith.

Heard. The petitioner has challenged the communication dated 11/5/2023, issued by the respondent No.2 Superintendent of Engineer, Sancharan Mandal, MSETCL, Akola, by which the request of the petitioner seeking appointment on compassionate ground in place of his brother, who died in harness, has been turned down on the ground that, by virtue of Circular No.529, dated 2/2/2018, as the petitioner has been adopted by his mother after the death of employee who died in harness, the petitioner does not fall within the definition of the word 'family'. For better appreciation, the relevant portion of Circular No.529, dated 2/2/2018, issued by the respondent No.2 is reproduced herein :

Learned counsel for the petitioner submits that, the adoptive mother Shantabai had four children including three daughters and one son i.e. deceased namely Balaji Nagnath Mule. The said deceased Balaji, while in employment with the respondent No.2, died in harness on 5/9/2021. Said Shantabai adopted the petitioner. It is further contended that, the adoption of the petitioner is not in dispute. He further submits that, since said Shantabai was having three daughters and the deceased son Balaji and since there is no one to maintain the family of said Shantabai, she made an application on 6/3/2023 to the respondent No.2 seeking appointment of the petitioner on compassionate ground in place of his deceased son. The learned counsel for the petitioner submits that, however, the respondent No.2, by misinterpreting the said Circular No.529 dated 2/2/2018, rejected the claim of the petitioner on the ground that the petitioner has been adopted by Shantabai after death of the deceased employee and does not fall within the definition of the word ‘family’, as per the said Circular.

Learned counsel for the respondent No.2, on the other hand, streaneously contended that, the petitioner being an adopted son of Shantabai after the death of deceased employee, he is not entitled for being appointed on compassionate ground as per the policy of the Circular No.529 dated 2/2/2018 and, therefore, urged that the Writ Petition deserves to be dismissed.

We have heard the submissions advanced by the learned counsel for the petitioner as well as the learned counsel for respondent No.2. Bare perusal of the Circular No.529 dated 2/2/2018 depicts that, the word ‘family’ includes all the legal heirs of deceased employee including the legally adopted son or daughter (married/ unmarried). The Circular also includes the unmarried brother or sister if the family is dependent on him or her.

We find that, the reasoning assigned by the respondent No.2 relying on the definition of ‘family’ in the Circular No.529 dated 2/2/2018 is contrary to the provisions of law. We find that, once the petitioner has been legally adopted by the mother of the deceased employee, as per Section 12 of the Hindu Adoption and Maintenance Act, 1956, the petitioner is deemed to be a natural son of the mother of the deceased employee and natural brother of the deceased employee and, therefore, the respondent No.2 could not have rejected the claim of the petitioner. For better appreciation, we reproduce the provisions of Section 12 of the Hindu Adoption and Maintenance Act, 1956 hereinbelow :

The Calcutta High Court, in case of Dist. Primary School Council, Bankura & anr. Vs. Sanjay Sarkar & ors. [2009 SCC OnLine Cal 1615], while considering the aspect as to whether the adopted son has same status as that of a natural son, has observed in paragraph No.5 thus :

In that view of the matter, we are of the considered view that, since the petitioner is legally adopted son of mother of the deceased employee, he assumes the status of natural son of adoptive mother and obviously a natural brother of the deceased employee and, therefore, he is entitled for being considered for issuing appointment on compassionate ground. We, therefore, pass the following order: