Nitin Singh And 6 Others vs State Of U.P. Thru. Prin. Secy., Deptt. ...
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Allahabad High Court

Nitin Singh And 6 Others vs State Of U.P. Thru. Prin. Secy., Deptt. ... on 10 November, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:70935
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
WRIT - A No. - 6648 of 2025   
 
   Nitin Singh And 6 Others    
 
  .....Petitioner(s)   
 
 Versus  
 
   State Of U.P. Thru. Prin. Secy., Deptt. Of Home Guards, Lko And 4 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Abhay Pratap Singh, Aadi Nigam, Ishan Singh Popli, Ratnesh Chandra   
 
  
 
Counsel for Respondent(s)   
 
:   
 
C.S.C.   
 
     
 
 Court No. - 7
 
   
 
 HON'BLE MANISH MATHUR, J.      

1. Heard Mr.Abhay Pratap Singh, learned counsel for petitioners and learned State Counsel for opposite parties.

2. Petition has been filed challenging order dated 25.01.2023 so far as it restrains petitioners 1, 2, 3, 4, & 7 from joining their duties on the post of Home Guard in pursuance of their appointment letters dated 23.06.2022 and 19.09.2022 respectively.

3. Learned counsel for petitioners submits that the Government Order dated 27.09.2012 provides for employment opportunity on compassionate basis to dependents of Home Guards who either passed away during service or were permanently disabled.

4. It is submitted that father of petitioners 2 to 7 were permanently disabled during the course of their service while that of petitioner No.1 passed way in service. It is submitted that in pursuance of the said Government Order, petitioners applied and were selected and appointment orders were issued for the post of Home Guards on compassionate basis. However, their actual joining was not provided and by means of impugned order, they have been restrained from joining and functioning on the aforesaid post on the ground that an inquiry has been initiated in terms of Government Order dated 03.12.2024 in order to ascertain whether the compassionate appointment has actually been provided to dependents of persons who came within the scope of the Government Order dated 27.09.2012 or not?

5. It is submitted that the case of petitioners was in fact examined by the Chief Medical Officer concerned who vide his report dated 08.08.2024 has clearly indicated that petitioners' selection and appointment was in accordance with the Government Order since their fathers came within the definition of either permanently disabled or deceased during service. It is also submitted that for the said purpose, fathers of petitioners 2 to 7 were examined by experts who gave their reports with regard to their permanent disability whereafter the said report was accepted. It is therefore submitted that once the Chief Medical Officer has already examined fathers of petitioners 2 to 7 and has reported their permanent disability, there was no occasion for the opposite parties to have taken recourse to the Government Order dated 03.12.2024 to restrain petitioners from joining or working on the post on which they were appointed. It is also submitted that even otherwise, petitioners having been issued appointment letters in the year 2022, the Government Order dated 03.12.2024 would not have any retrospective operation.

6. So far as petitioner No.1 is concerned, learned counsel for petitioners submits that father of petitioner No.1 passed away on 11.08.2019 whereafter his widow Smt. Seetha Yadav took petitioner No.1 in adoption by means of deed dated 03.03.2022 and registered on 09.03.2022. It is submitted that since adoption of petitioner No.1 was in consonance with the Hindu Adoption and Maintenance Act, 1956 specifically Section 6 thereof, the opposite parties were required to consider the aforesaid adoption. He has relied upon the following judgments of Supreme Court:-

(i) Sitabai v. Ramchandra [(1969) 2 SCC 544]

(ii) Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar [(1974) 2 SCC 156]

7. Learned State Counsel, on the basis of counter affidavit, has refuted the submissions advanced by learned counsel for petitioners with the submission that so far as petitioners 2 to 7 are concerned, the aspect of their appointment on the basis of injuries suffered by their fathers is under consideration, particularly whether their fathers actually were permanently disabled to the extent to be covered by the Government Order dated 27.09.2012 or not. It is submitted that fathers of petitioners 2 to 7 have been called for personal examination in August, 2025 and a report thereon is still awaited. It is submitted that in view of the discrepancies which were found with regard to compassionate appointment, the Government Order dated 03.12.2024 was issued and would govern the petitioners as well since particularly no prejudice would be caused to the petitioners in case such physical examination takes place.

8. So far as petitioner No.1 is concerned, it has been submitted that the alleged father of petitioner No.1 late Arjun Prasad passed away in the year 2019 whereas the adoption deed has been executed in the year 2022, which clearly implies the fact that petitioner No.1 was not dependent upon the deceased and therefore is not entitled to be appointed as Home Guard on compassionate basis.

9. Upon consideration of submissions made by learned counsel for parties and perusal of material on record, so far as petitioners 2 to 7 are concerned, it is evident that their appointment on compassionate basis is governed by the Government Order dated 27.09.2012 which clearly indicates the aspect that a son is covered in the definition of term of 'family' in paragraph - 3 thereof. The very fact that petitioners were granted appointment in the year 2022 is indicative of the fact that opposite parties themselves considered the said petitioners to be dependents of their fathers. So far as the aspect of injuries suffered by their fathers during service and whether the same would come within the aspect of permanent disability is concerned, it is already on record that the fathers of petitioners 2 to 7 were examined by a Medical Board on 15.06.2024 which gave its opinion and on that basis, the Chief Medical Officer vide letter dated 08.08.2024 has found their injuries to come within the definition of permanent disability suffered during the course of their service. It is thus evident that the fathers of petitioners 2 to 7 have already been declared permanently disabled by means of the aforesaid report dated 08.08.2024.

10. So far as the applicability of Government Order dated 03.12.2024 is concerned, it is evident and admitted that petitioners were appointed in the year 2022. The Government Order has obviously been issued subsequently and does not indicate it having any retrospective operation.

11. Apart from the aspect of retrospectivety, it is also evident that the said Government Order dated 03.12.2024 has clearly prescribed a Committee headed by the Chief Medical Officer concerned to examine the aspect of permanent disability of the Home Guards.

12. Since in the present case, the disability suffered by the fathers of petitioners 2 to 7 has already been verified by the Chief Medical Officer by means of report dated 08.08.2024, in the considered opinion of the Court, compliance of the Government Order dated 03.12.2024 has substantively been made. In such circumstances, there was no occasion for the opposite parties to have required the fathers of petitioners 2 to 7 to be re-examined for their disabilities.

13. So far as petitioner No.1 is concerned, the ground taken in the counter affidavit is that father of petitioner No.1 passed away in service in the year 2019 and since petitioner No.1 was adopted in the year 2022, he would not come within the definition of a dependent.

14. For the said purpose, it would be useful to refer to Government Order dated 27.09.2012 which in para - 3 (kha) clearly includes an adopted son in terms of the definition of the word 'family' of the Home Guard concerned. The aspect and impact of the Hindu Adoptions and Maintenance Act, 1956 would therefore be required to be considered.

15. Section 8 of Act of 1956 pertains to capacity of a female Hindu to take in adoption and specifies that any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption. The proviso in the case is that if her husband is living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Provisions of Section 8 are as follows:-

"8. Capacity of a female Hindu to take in adoption. -- Any female who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption.

Provided that, if she has a husband living, she shall not adopt son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be unsound mind."

16. The proviso to Section 8 of the Act of 1956 therefore clearly indicates that a female Hindu who does not have a husband alive also has the capacity to take in adoption.

17. In the considered opinion of this Court, the aforesaid provision would therefore extend to a widow who also would have the capacity to take in adoption. The said aspect has been considered by Supreme Court in the case of Shripad Gajanan Suthankar (supra) in the following manner:-

"6. It is established law that the adoption by a widow relates back to the date of the death of the adoptive father, which, in this case, took place in 1921. Indeed, the complexity of the present case arises from the application of this legal fiction of " relation-back" and the limitations on the amplitude of that fiction vis a vis the partition of 1944, in the light of the rulings of the various High Courts and of the Judicial Committee of the Privy Council, and of this Court, the last of which is Govind v. Nagappa.(1) According to the appellant, the rights of the adopted son, armed as he is with the theory of "relation-back", have to be effectuated retroactively, the guidelines wherefor are available from the decided cases. It is no doubt true that "when a member of a joint family governed by Mitakshara law dies and the widow validly adopts a son to him, a coparcenary interest in the joint property is immediately created by the adoption co-extensive with that which the deceased coparcener had, and it vests at once in the adopted son". (see Mulla on Hindu Law, 13th edn. page 516).

The same author, however, points out that "the rights of an adopted son arise for the first time on his adoption-. He may, by virtue of his rights as adopted son, divest other persons in whom the property vested after the death of the adoptive father, but all lawful alienations made by previous holder would be binding on him. His right to impeach previous alienations would depend upon the capacity of the holder who made the alienation as well as on the nature of the action of alienation. When the holder was a male, who had unfettered right of transfer, e.g., the last surviving member of a joint family, the adopted son could not impeach the transfer. In case of females who had restricted right of transfer even apart from any adoption, the transfers would be valid only when they are supported by legal necessity." (ibid; pp; 516-517; para 507).

"An adopted son is bound by alienations made by his adoptive father prior to the adoption to the same extent as a natural born son would be." (lbid, p.517; para 508).

7. It is settled law that rights of an adopted son spring into existence only from the moment of the adoption and all alienations made 'by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956 can upset the partition of 1944, validly made under the then conditions, and whether the gift by Mahadev of properties exclusively set apart to him, and, therefore, alienable by him, could be retroactively invalidated by the plaintiff on the application of the legal fiction of "relation-back". it is unlikely that a similar question will arise hereafter since s. 4 of the Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of that law in force immediately before the commencement of the Act, if provisions have been made for such matters in the Act. Since on the husband's death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled for ever. Of course, we need not investigate this aspect of the matter as the present case relates to a pre-statutory adoption. Even s. 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain 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."

18. The said aspect has also been considered by Supreme Court in the case of Sitabai v. Ramchandra (supra) in the following manner:-

"5. It is clear on a reading of the main part of Section 12 and sub-section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. ..........

The scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widow's family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-section (4) Section 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of Sections 11 and 12 of Act 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses."

19. The aforesaid judgments have also been considered by a Co-ordinate Bench of this Court in the case of Vishal v. State of U.P. & 5 others, Writ-A No. 17364 of 2016.

20. In view of the aforesaid judgments, it is thus evident that the adoption deed of petitioner No.1 cannot be discarded by the opposite parties merely on the ground that he was adopted and the deed executed subsequent to the death of the husband of adoptive mother.

21. So far as the aspect of dependency is concerned, it is not the case of the opposite parties that the mother of petitioner No.1 was not dependent upon her husband for livelihood.

22. In such circumstances and particularly in view of the paragraph - 3 of the Government Order dated 27.09.2012, it is held that petitioner No.1 would come within the definition of dependent of the adoptive father since in view of Supreme Court judgments, the adoption would relate back to the date of death of adoptive father.

23. In view of the discussions made here-in-above, the impugned order dated 25.01.2023 is hereby quashed only for the petitioners by issuance of a Writ in the nature of Certiorari. A further Writ in the nature of Mandamus is issued commanding the opposite parties to permit the petitioners to join on the post of Home Guards in pursuance of their appointment letters dated 23.06.2022 and 19.09.2022 respectively and to permit them to carryout their duties as Home Guards. Petitioners shall also be entitled to honorarium on the appointed post. Orders with regard to same shall be passed by the authority concerned expeditiously within a period of two weeks from the date a certified copy of this order is served upon the authority concerned.

24. Resultantly, the petition succeeds and is allowed. Parties to bear their own costs.

(Manish Mathur,J.)

November 10, 2025

lakshman