# Naidu(dead) by LRs v. Jagannath (dead)

- **Citation:** (2013) 1 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-14
- **Case number:** Writ Petition No.8082 (SS) of 2003
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naidu-dead-by-lrs-v-jagannath-dead-42426
- **Pages:** 4

## Text

70 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(1996) 5 Supreme Court Cases,550 Hon'ble
Supreme
Court
after
taking
into
consideration
above
two
judicial
pronouncement had held as under:-

" The judiciary in India also possesses
inherent power, specially under Section 151
CPC, to recall its judgment or order if it is
obtained by fraud on court. In the case of
fraud on a party to the suit or proceedings,
the court may direct the affected party to
file a separate suit for setting aside the
decree obtained by fraud. Inherent powers
are powers which are resident in all courts,
especially of superior jurisdiction. These
powers spring not from legislation but from
the nature and the constitution of the
tribunals or courts themselves so as to
enable them to maintain their dignity,
secure obedience to its process and rules,
protect its officers from indignity and wrong
and to punish unseemly behavior. This
power is necessary for the orderly
administration of the court's business.

Since fraud affects the solemnity,
regularity and orderliness of the proceeding
of the court and also amounts to an abuse of
the process of court, the courts have been
held to have inherent power to set aside an
order obtained by fraud practiced upon that
court.

18. In the case of S.P. Chengalvaraya
Naidu(dead) by LRs. V. Jagannath (dead)
by LRs. and others , 1994 (1) SCC 1
Hon'ble Supreme Court has held :-

" Fraud avoids all judicial acts,
ecclesiastical or temporal- observed Chief
Justice Edward Coke of England about
three centuries ago. It is the settled
proposition of law that a judgment or decree
obtained by playing fraud on the court is a
nullity and non exit in the eyes of law .
Such a judgment decree- by the first court
or by the highest court- has to be treated as
a nullity by every court, whether superior or
inferior. It can be challenged in any court
even in collateral proceedings".

19. For the foregoing reasons, I do no
find any illegality or infirmity in the
impugned orders under challenge in the
present writ petition thus lacks merits and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2012

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No.8082 (SS) of 2003

Babu Ram

 ...Petitioner
Versus
State of U.P. And another

 ...Opposite Parties

U.P. Recruitment of Dependants of Govt.
Servants Dying in Harness Rule 1974,
Section
2(1)-
compassionate
appointment-petitioner being grand son
of deceased employee although can not
be terms of family-where the son of
deceased
employee
being
physically
handicapped unable to do any jobcertainly the petitioner being grandson
stepped to save the family for survivalbeing lineal decedent of deceased-heldentitle to get appointment.

Held: Para-7 and 8

I am of the view that the dependents,
who are placed even beyond the term of
'family', are definitely entitled to get the
appointment under the Rules, otherwise
the
purpose
of
framing
the
Rules
definitely shall be defeated, therefore, I
am of the view that the purposive
construction of the Rules would be to
extend the benefit of compassionate
1 All] Babu Ram V. State of U.P. and another
71
appointment particularly in such an
extra
ordinary
situation
to
other
members of the family also who are
dependent of the deceased being in the
lineal descendant.

In the case at hand, the petitioner's
father
is
a
permanent
physically
handicapped person and the petitioner is
not a stranger to the family, rather he is
lineal
descendant
of
the
deceased,
therefore, it is the petitioner only who
can be held to be entitled to get the
appointment.

(Delivered by Hon'ble Shri Narayan
Shukla, J.)

1. Heard Ms.Prashansha Singh,
learned
Advocate
holding
brief
of
Mr.S.K.Upadhyay, learned counsel for the
petitioner as well as learned Standing
Counsel.

2. The petitioner has challenged the
order dated 25th of January, 2002, passed
by the Executive Engineer, Construction
Division No.3, Public Works Department,
Sultanpur.

3. The petitioner, on the demise of
his grand-father, namely, Ram Dularey,
who died while in service on the post of
Mate
on
19.8.2001,
claimed
compassionate appointment under the
U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974( in short 'Rules). On the
demise of his grand father, his father
Lahuri moved an application before the
authority
concerned
to
extend
the
compassionate appointment in favour of
the petitioner, who is his son as he is a
permanent
physically
handicapped
person. Thus, since the deceased's son
Lahuri is not capable to discharge the
duty and the deceased was only the bread
earner of the family, he consented to
extend the compassionate appointment in
favour of the petitioner, being grand-son
of the deceased. It is further stated that the
deceased's son and grandson (petitioner)
all were dependent for their livelihood
upon the source of income of the
deceased.

4. The learned counsel for the
petitioner
submits
that
except
the
petitioner no other person is there in the
family to earn the bread for the family and
thus after the death of Ram Dularey, the
whole family is passing through the
unsustainable position of starvation. The
authority concerned has rejected the
petitioner's claim on the ground that being
grand son of the deceased, he does not
come within the term 'family' as is defined
under Section 2 (c) of the U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974. Section 2(c) defines the term
'family' as under:-

[(c) "family" shall include the
following relations of the deceased
Government servant;

(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;]"

5. Admittedly, the petitioner being
grand son of the deceased, does not come
within the term of 'family', but upon
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
perusal of the Rules, I find that Rule 3
provides that these Rules shall apply to
recruitment of dependents of the deceased
government servants to public services
and posts in connection with the affairs of
State of Uttar Pradesh, except services
and posts which are within the purview of
the
Uttar
Pradesh
Public
Service
Commission.

6. The statement of aims and objects
of the Rules also provides that in exercise
of powers conferred by the proviso to
Article 309 of the Constitution of India
and all other powers enabling him in this
behalf, the Governor of Uttar Pradesh is
pleased to make the following special
rules regulating the recruitment of the
dependents of Government servants dying
in harness. Thus, the Rules have been
framed to the benefit of the dependents of
the deceased and it is a beneficial
legislation. There may be occasion that on
the demise of the bread earner of the
family, there may be some other persons
being alive in the family, who were
completely dependent upon the bread
earner, like the petitioner, but are not
covered under the definition of "family".
If the construction of word 'dependent' is
given the narrow meaning by confining it
to the term 'family', then the purpose of
framing of the Rules is bound to be
defeated as it has been framed for the
benefit of the dependents of the deceased,
who may not come under the term
'family'.

7. The position of the case at hand is
very peculiar as the son of the deceased is
permanently
physically
handicapped
person and is unable to do any job, even
after
extension
of
benefit
of
the
compassionate appointment, therefore, the
grand son necessarily has to come
forward and step to lead the family for
survival of other members, who come
within the term 'family'. Therefore, in
such a situation, I am of the view that he
would be only the eligible and competent
person to get the employment for survival
of the family. In such a situation, I am of
the view that the dependents, who are
placed even beyond the term of 'family',
are
definitely
entitled
to
get
the
appointment under the Rules, otherwise
the purpose of framing the Rules
definitely shall be defeated, therefore, I
am of the view that the purposive
construction of the Rules would be to
extend the benefit of compassionate
appointment particularly in such an extra
ordinary situation to other members of the
family also who are dependent of the
deceased being in the lineal descendant.

8. In the case at hand, the
petitioner's
father
is
a
permanent
physically handicapped person and the
petitioner is not a stranger to the family,
rather he is lineal descendant of the
deceased, therefore, it is the petitioner
only who can be held to be entitled to get
the appointment.

9. Under the circumstances, I hereby
quash the order impugned dated 25th of
January, 2002, passed by the Executive
Engineer, Construction Division No.3,
Public Works Department, Sultanpur and
issue a writ of mandamus to the
respondents to extend the benefit of
compassionate appointment in favour of
the petitioner within one month after
receipt of a certified copy of this order.

10. In the aforesaid terms the writ
petition is allowed.
---------
1 All] Shyam Bihari V. State of U.P. and another
73
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2013

BEFORE
THE HON'BLE ASHOK SRIVASTAVA, J.

Criminal Misc. Writ Petition No. - 9560 of
2012

Shyam Bihari

...Petitioner
Versus
State of U.P. & another ...Respondents

Counsel for the Petitioner:
Sri S.K. Dubey

Counsel for the Respondents:
Govt. Advocate

Criminal Procedure Code, Section 451released of Motor Cycle involved in case
no. 1429 of 2011, the Police rubbed the
engine
and
chassis-rejected
by
the
Magistrate-learned Session Judge also
without appreciating the law laid down
by the Apex Court in Sunderbhai Ambalal
Desai-rejected-held-the
magistrate
is
not limb but a judicial officer, he should
have acted in more responsible mannerorder passed by the Court below set-aside-liberty to file a fresh application-it
shall be decided in accordance with law.

Held: Para-10

Keeping in view the character of U.P.
Police the possibility that the number
plate has been changed or the engine &
chassis numbers have been rubbed to
make it illegible, can not be ruled out. In
such circumstances the duty of a judicial
officer is enhanced and it necessitates
that the Court should behave in a more
responsible manner. In the instant case
the way in which the learned Magistrate
has acted while disposing of the release
application of the petitioner cannot be
appreciated. He must not forget that he
is not a limb of the police, but is a
judicial officer. The learned Additional
Sessions Judge also did not care to go
deep in the matter and appreciate the
law as laid down by the Apex Court in
Sunderbhai Ambalal Desai Vs. State of
Gujrat (2003) SC 6318 & Sulekh Chnad
Vs. Suresh Chand (1991) Crl. L.J. 469
(SC).
Case Law discussed:
(2003) SC 6318; (1991) Crl. L.J. 469 (SC)

(Delivered by Hon'ble Ashok Srivastava, J.)

1. The instant writ petition has been
filed as the petitioner has felt aggrieved
by an order dated 12.4.2012 passed by V
additional Sessions Judge, Mirzapur in
criminal revision No.11 of 2012 and order
dated 8.11.2011 passed by the Addl.
Chief Judicial Magistrate 1st, Mirzapur in
S.T.No.253 of 2011(arising out of case
crime No.260 of 2011), State Vs. Ashish
Patel & others, P.S.Ahrora, district
Mirzapur.

2. Respondent No.2 of this case is
Station Officer of P.S. Ahrora district
Mirzapur who is properly represented by
the learned AGA and so is the case of
respondent no.1, hence no notice has been
issued to respondent no.2 and with
consent of the parties present before this
Court this petition is finally disposed of
after due hearing.

3. In a police encounter which took
place at 12.45 p.m. on 17.5.2011 one
Ashis Patel was also arrested by the
police. Ashish Patel is the son of the
petitioner Shyam Bihari. After detention
and arrest of all the accused persons
named in the FIR certain stolen articles
and illicit arms and ammunitions were
recovered from their possession. Asish
Patel was riding a Hero Honda Passion
motorcycle which too was taken into
custody by the arresting officer and it was