Major Jai Ram Singh (Retd.) vs State of U.P. and Others

The Petitioner, who is an Army Commissioned officer, has approached this Court for issuance of a writ in the nature of mandamus commanding the opposite parties to provide all the service benefits including seniority and notional promotion available to the officers recruited and appointed as demobilized officer.

Earlier, the Petitioner had filed writ petition No. 1220 (SB) of 2000 which was dismissed by judgment and order dated 7.11.2000 with the finding that the Petitioner is not a demobilized Army Personnel, hence benefit of Rule 3 may not be given to him. The order passed by the Division Bench was subject matter of dispute before the Hon''ble Supreme Court in Civil Appeal No. 8647 of 2002. Hon''ble Supreme Court after hearing the Petitioner in person did not find any infirmity in the order passed by this Court.

While preferring the second writ petition, the argument of learned Counsel for the Petitioner is that the correct facts were not found before the Court when the petition was dismissed. Learned Counsel for the A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, A.V. Papayya Sastry and Ors. v. Govt. of Andhra Pradesh and Ors. He placed reliance on paras 21 and 22 of the judgment, which is reproduced as under:

Para 21: Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed.

Fraud avoids all judicial acts, ecclesiastical or temporal.

Para 22: It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

A plain reading of the judgment relied upon by the Petitioner shows that in case judgment and order is obtained by fraud, it cannot be said to be a judgment or order in law.

So far as the argument advanced by the learned Counsel for the Petitioner with regard to principle of law that the judgment or order obtained by commission of fraud is a simple piece of paper and it is a nullity and nonest in the eye of law is concerned, there is no dispute with the proposition of law. Law is well settled that the judgment obtained by commission of fraud has no legal sanctity. The Petitioner had filed writ petition bearing No. 1220 (S/B) of 2000 (supra) which was dismissed by the Division Bench of this Court and later on Hon''ble Supreme Court had upheld the order of the Division Bench vide judgment and order dated 1.8.2006. Accordingly, the judgment relied upon by the learned Counsel for the Petitioner does not seem to be applicable in the facts and circumstances of the present case. Moreover, once their Lordships of Hon''ble Supreme Court perused the judgment of the Division Bench of this Court and heard the Appellant in person and recorded a finding that the judgment of the High Court does not suffer from any infirmity and dismissed the appeal being devoid of merit, the writ petition also does not seem to be maintainable. Further since the judgment of the Apex Court is binding under Article 141 of the Constitution, this Court lacks jurisdiction to record finding, contrary to the observation made by Hon''ble Supreme Court.

In view of above, the writ petition is dismissed. No order as to costs.