# Baghpat and another v. Anurag

- **Citation:** (2011) 3 ILRA 1236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-08
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baghpat-and-another-v-anurag-41952
- **Pages:** 4

## Headnote

Ms. Suman Sirohi (S.C.)
C.S.C.

U.P
Recruitment
of
Dependents
of
Government Servants (Dying in Harness)
Rule 1974-Rule-2(c), 4(42) readwith
Section 12 of Hindu
Adoption and
maintenance Act 1955-compassionate
Appointment-claimed by adopted son-
3 All] Vikas Jauhari V. State of U.P. and others
1237
rejection on ground- absence of specific
provision for appointment of adopted
son-held-illegal adopted child shall be
deemed the child of his/her adopted
father/mother-entitle for appointment
on compassionate ground.

Held: Para 10

From the perusal of above section, it is
clear that an adopted child shall be
deemed to be the child of his or her
adoptive
father
or
mother
for
all
purposes with effect from the date of the
adoption and from such date all the ties
of the child in the family of his or her
birth shall be deemed to be severed and
replaced
by
those
created
by
the
adoption in the adoptive family."
Case law discussed:
1994 (68) FLR 283; (1996) 1 UPLBEC 4; 2005
(4) ESC 2706 (All); 2009 (3) ESC 1869 (All);
2011 (2) ADJ 511

## Text

1236 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Division Bench of this Court has held that
upto
the
stage
of
computation
of
vacancies, appointment by transfer can be
made and after the advertisement of the
vacancy by Commission, such vacancy
can not be filled up by transfer.

9. The learned Single Judge in the
case of Raja Ram etc. Vs. State of U.P.
and others (Supra) has held as follows:

"So far as the second issue qua
appointment by way of transfer of a
teacher against advertised vacancy is
concerned, a Division Bench of this
Court in the case of Smt. Amita Sinha
Vs. State of U.P. And others (Supra)
has held that once the process of
selection by direct recruitment has
begun by issuance of an advertisement
inviting applications, the same can not
be filled by transfer. Hence in view of
the said Division Bench judgment,
appointments made by transfer against
an
advertised
vacancy
of
Advertisement No.1 of 2005 is rendered
illegal and of no consequence."

10. Respectfully following the
aforesaid two decisions, I am of the view
that the filling up vacancy by transfer of
Arun
Kumar
Singh
from
Etawah
Judgeship to Banda Judgeship after the
advertisement for filling up the 14
vacancies and on completion of the
selection process and the issue of
appointment letter to the petitioner being
selected was not justified and has no
consequence and, therefore, the petitioner
is entitled to be appointed in pursuance of
the vacancy advertised.

11. The decision cited by learned
counsel appearing on behalf of respondent
nos.2 and 3 in the case of District Judge,
Baghpat and another Vs. Anurag
Kumar and others (Supra) is of no help.
It does not decide the issue involved in
the present case. It only provides, 1) the
advertisement of number of post not
existing on the day of advertisement, was
de hors the Rules, and 2) the selection of
the persons against future vacancy which
occurred after advertisement is illegal.

12. In the circumstances, the writ
petition is allowed and the District Judge,
Banda is directed to permit the petitioner
to join within a period of one month from
the date of presentation of the certified
copy of this order. It is further directed
that the District Judge, Banda may request
the Hon'ble High Court to transfer Arun
Kumar Singh to any other place or to
adjust him against future vacancy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition N0. 52048 of 2011

Vikas Jauhari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Vikas Tripathi

Counsel for the Respondents:
Ms. Suman Sirohi (S.C.)
C.S.C.

U.P
Recruitment
of
Dependents
of
Government Servants (Dying in Harness)
Rule 1974-Rule-2(c), 4(42) readwith
Section 12 of Hindu
Adoption and
maintenance Act 1955-compassionate
Appointment-claimed by adopted son-
3 All] Vikas Jauhari V. State of U.P. and others
1237
rejection on ground- absence of specific
provision for appointment of adopted
son-held-illegal adopted child shall be
deemed the child of his/her adopted
father/mother-entitle for appointment
on compassionate ground.

Held: Para 10

From the perusal of above section, it is
clear that an adopted child shall be
deemed to be the child of his or her
adoptive
father
or
mother
for
all
purposes with effect from the date of the
adoption and from such date all the ties
of the child in the family of his or her
birth shall be deemed to be severed and
replaced
by
those
created
by
the
adoption in the adoptive family."
Case law discussed:
1994 (68) FLR 283; (1996) 1 UPLBEC 4; 2005
(4) ESC 2706 (All); 2009 (3) ESC 1869 (All);
2011 (2) ADJ 511

(Delivered by Hon'ble Rajes Kumar, J. )

1. Heard Sri Ashok Khare, learned
Senior Advocate, appearing on behalf of
the petitioner and Ms. Suman Sirohi,
learned Standing Counsel.

2. With the consent of the parties the
writ petition is disposed of finally.

3. The petitioner, being adopted son
of the deceased employee, claimed
compassionate appointment. His claim for
compassionate appointment has been
rejected by the order dated 13.6.2011 on
the ground that there is no provision for
compassionate appointment for adopted
son, which is being challenged in the
present writ petition.

4. Learned counsel for the petitioner
submitted that under the Uttar Pradesh
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974 in the category of dependant's
son is mentioned. "Son" is defined under
the
General
Clauses
Act,
1897
(hereinafter referred to as the ("Act").

5. I find substance in the argument
of learned counsel for the petitioner.

6. Section 2 (c) of U.P. Recruitment
of Dependents of Government Servants
Dying-in-Harness Rules, 1974 defines the
family as follows:

"(i) Wife or husband;

(ii) Sons;

(iii)
Unmarried
and
widowed
daughters.

(iv) If the deceased was unmarried
Government servant, brother unmarried
sister and widowed mother dependent on
the deceased Government servant."

7. Son is not defined under the
Rules, 1974.

8. Section 4 (42) of the Act defines
son, which says that "son" in the case of
anyone the law applicable to whom
permits adoption, shall include an adopted
son. Therefore, adopted son is also
entitled for compassionate appointment.

9. Sections 12 and 16 of the Hindu
Adoptions and maintenance Act, 1956
which provides the effect of adoption are
extract as under:

"12.
Effects
of
adoption---An
adopted child shall be deemed to be the
child of his or her adoptive father or
mother for all purposes with effect from
the date of the adoption and from such
1238 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
date all the ties of the child in the family
of his or her birth shall be deemed to be
severed and replaced by those created by
the adoption in the adoptive family:

Provided that ---

(a) The child cannot marry any
person whom he or she could not have
married if he or she had continued in the
family of his or her birth;

(b) Any property which vested in the
adopted child before the adoption shall
continue to vest in such person subject to
the obligations, if any, attaching to the
ownership of such property, including the
obligation to maintain relatives in the
family of h is or her birth;

(c) The adopted child shall not divest
any person of any estate which vested in
him or her before the adoption."

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 the Act unless and until it is
disproved."

10. From the perusal of above section,
it is clear that an adopted child shall be
deemed to be the child of his or her
adoptive father or mother for all purposes
with effect from the date of the adoption
and from such date all the ties of the child in
the family of his or her birth shall be
deemed to be severed and replaced by those
created by the adoption in the adoptive
family."

11. In this view of the matter, the
adopted son is as good the real son.

12. Reliance is placed on the decisions
of this Court in the case of Sunil Saxena
Vs. State of U.P. And others, reported in
1994 (68) FLR, 283, Singhasan Gupta Vs.
State of U.P. and another, reported in
(1996) 1 UPLBEC, 4, Ravindra Kumar
Dubey Vs. State of U.P. and others,
reported in 2005 (4) ESC, 2706 (All), in
the case of Shiv Prasad Vs. State of U.P.
and others, reported in 2009(3) ESC, 1869
(All) and in the case of Jagat Pal Vs. State
of U.P. and others, reported in 2011 (2)
ADJ, 511, learned Single Judge has held
that adopted son will be treated as son for
the purpose of U.P. Recruitment of
Dependents of Government Servants Dying
in Harness Rules, 1974.

13. In view of the above, I am of the
considered view that the adopted son also
falls within the definition of family defined
under section 2 (c) of U.P. Recruitment of
Dependents of Government Servants Dying
in Harness Rules, 1974 and entitled for the
claim of compassionate appointment.

14. In the result, the writ petition is
allowed.
The
impugned
order
dated
6/13.6.2011 is set aside and the respondent
is directed to consider the claim of the
petitioner for compassionate appointment.
However, before giving the appointment of
the adopted son, the authority concerned
should examine the validity of the adopted
son with reference to the provisions of
Hindu Adoptions and Maintenance Act,
1956.
---------
3 All] Aporv Jindal Director M/s Jindal Frozen Food Pvt. Ltd. V. Mr. Amit Kumar Kubba & another 1239
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2011

BEFORE
THE HON'BLE A.P. SAHI,J.

Civil Misc. Writ Petition No. 52932 OF 2011

Aporv Jindal Director M/s Jindal Frozen
Food Pvt. Ltd.

 ...Petitioner
Versus
Mr. Amit Kumar Kubba & another

 ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Vijay Prakash

Counsel for the Respondents:
Sri Manish Tiwari
Sri R.K. Shukla

Code of Criminal Procedure-order XXI
Rule 89, rule 92 (2)-Petitioner purchased
the property in question from judgment
debtor-after knowledge about auction
sale
in
execution
proceeding-moved
application-for impleadment as party
with prayer to set-a-side-the auctionallowed by execution court-after that the
execution court has to pass formal order
setting-a-side the auction sale-strict in
accordance with provision of Rule 89 and
92 not beyond that-argument when
application allowed there is automatic
non existence of auction sale-heldmisconceived-with-consequential
directions-petition disposed of.

Held: Para 14

This Court is of the opinion that in view
of the provisions of sub-rule (2) of Rule
92, the order has to be passed by the
court for setting aside the sale on the
requirements as indicated therein, read
with requirements of Rule 89 on their
being complied with. This therefore
requires the passing of an order after
applying mind to the ingredients that are
required to be examined in terms of Rule
89 and Rule 92 as indicated hereinabove.
In view of this, the contention raised on
behalf of the petitioner that the sale will
be presumed to have been set aside
under the Order dated 7th August, 2007
does not appear to be correct, inasmuch
as,
an
order
under
the
aforesaid
provisions has to be passed by the court
concerned. The issue relating to the
enquiry
to
be
made
is
being
apprehended by the petitioner to be a
full scale enquiry on the merits of the
claim
of
the
petitioner.
This
apprehension in my opinion is misplaced,
inasmuch as, the enquiry which has to be
made is only confined to the provisions
of Rule 89 and Rule 92 and not beyond
that.
Case law discussed:
2004 ACJ 683 (Paras 9 and 10); AIR 1935
Madras Pg. 842; 1962 ALJ 735; 2004 ACJ 683

(Delivered by Hon'ble A.P. Sahi,J. )

1. Heard Sri Shashi Nandan learned
Senior Counsel along with Sri Vijay
Prakash for the petitioner, Sri Manish
Tiwari for the respondent no. 1 - decree
holder and Sri S.K. Shukla for the auction
purchaser - respondent no. 2. The dispute
falls within a very short campus in this
petition which assails the order passed by
the court below rejecting the application
moved by the petitioner for consigning
the execution proceedings in Execution
Case No. 44 of 2004. Learned counsel for
the parties agree that the petition be
disposed of finally as no further affidavits
are necessary, the issue involved being
purely legal.

2. The background in which the said
application came to be moved is that the
property in dispute became subject matter
of
attachment
during
execution
proceedings on 10th March, 2005. The
petitioner is stated to have purchased the