No distinction between adopted & biological child on job on compassionate grounds: HC

PTI, Nov 22, 2022, 10:43 AM IST

An adopted child has the same right as a biological one and they cannot be discriminated against while being considered for their parents’ job on compassionate grounds, the High Court of Karnataka has held.

The HC said that if such a distinction is made “then there would be no purpose served by adoption.” Rejecting the contention of the Prosecution Department of the Government of Karnataka, the division bench of Justice Suraj Govindaraj and Justice G Basavaraja said, “The distinction made between adopted son and a natural son by respondent 2 and 4 (Prosecution Department and Assistant Public Prosecutor) either on the basis of the existing Rules in our considered opinion would not have any impact or role to play in the matter.”

The Department had cited existing Rules while denying a job on compassionate grounds to an adopted son. But the Court in its recent judgment said, “a son is a son or a daughter is a daughter, adopted or otherwise; if such a distinction is accepted then there would be no purpose served by adoption. Be that as it may, apparently taking into account that the same would violate Article 14 of the Constitution, the said Rules have been amended so as to do away with the artificial distinction.”

Vinayak M Muttatti was a Class-IV employee in the office of Assistant Public Prosecutor, JMFC, Banahatti. He had adopted a son though an adoption deed in 2011. Muttatti died in March 2018. The same year, his adopted son Girish filed a representation seeking a job on compassionate grounds. The representation was rejected by the Department on the ground that the appellant was an adopted son and the Rules do not provide for consideration of adopted son for compassionate appointment.

Girish approached the HC against this rejection. In 2021, a single-judge bench dismissed his petition as the rules do not provide for an adopted son to be considered for compassionate appointment. Girish then filed an appeal before the division bench. In the meantime in April 2021, the Rules were amended removing the distinction made between a biological son and an adopted son. Before the Division Bench, the counsel for Girish pointed out that the amendment made in 2021 was not brought to the notice of the single judge.

The government advocate argued that since the amendment was made in 2021 and Girish had made his plea in 2018, the benefit of the subsequent amendment cannot be provided to him. The Division Bench noted that the object of compassionate appointment arises only on account of any financial difficulty and/or stringency faced by the family on account of the death of the earning family member. In the present case, “deceased left behind his wife and son and adopted son and a daughter who is mentally retarded and physically handicapped.”

Ruling in favour of Girish, the Bench said, “In the present case, the daughter being a natural daughter, would have been entitled to a compassionate appointment if not for her being mentally retarded as also physically handicapped. In such a situation, it is the adopted son who was so adopted by the deceased to take care of the family on account of the death of a natural-born son who has applied for a compassionate appointment.”

“We are of the considered opinion that the application made by the adopted son for compassionate appointment is bonafide and is required to be considered in the background of the difficulties faced by the family,” the HC said, rejecting the contention of the Department that the application has to be considered on the basis of the Rules applicable on the date on which the application was made.

The HC directed the Department to consider the representation submitted by the petitioner for compassionate appointment as if the petitioner is ”a natural born son without making distinction between an adopted son and a natural son”.