# Kamlesh Kumar v. State of U.P

- **Citation:** (2023) 6 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Writ A No. 4029 of 2011
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-v-state-of-u-p-50451
- **Pages:** 5

## Headnote

A. Service Law - Appointment - Forged
document was used in obtaining the
appointment - Dispensing the service -
Violation of principle of natural justice -
Relevance
-
Held,
person
appointed
erroneously on a post must not reap the
benefits
of
wrongful
appointment
jeopardizing
the
interests
of
the
meritorious and worthy candidates - If
initial action is not in consonance with
Law, the subsequent conduct of a party
cannot sanctify the same - High Court
refused to interfere in the impugned
action of the respondents dispensing the
services of the petitioner. (Para 12, 13, 14
and 18)

B. Maxim - Subia Fundamento cofit opus -
Meaning - A foundation being removed,
the superstructure falls. (Para 13)

C. Maxim
- Fraus et jus nunquam
cohabitant - Meaning - Fraud and justice
never dwell together. (Para 16)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

6 All. Kamlesh Kumar Vs. State of U.P.
265
number of vacancies accrued for the post of
Asst. Engineer in the promotion quota by
applying the promotional quota of 25% as
is to be found in the old rules, 1936 & in
the light of observation made by this court,
for the period of 1997-1998 to 2003-2004
by constituting a High level committee as
mentioned in the present Judgment;

(b) After the said determination,
the state Authorities are directed to hold the
qualifying examination as provided under
rule 9(ii) of the old rule, 1936 and other
ancillary
rules
and
provide
equal
opportunity to the diploma holder Junior
Engineers forthwith, so as to enable them
to come within the consideration zone for
promotion to Asst. Engineers;

(c) Impugned promotion orders
dated 02.08.2008, 3.7.2009 and 5.2.2010
and the consequential orders for promotion
and posting as Assistant Engineers are not
sustainable, which are hereby quashed.

(d) Any promotion made to the
Junior Engineers, otherwise than the
aforesaid promotion order 02.08.2008,
3.7.2009
and
5.2.2010
shall
remain
undisturbed, as this court was only
examining the validity of these impugned
orders;

(e) The 105 new vacancies
(27+78), withheld by the State Govt, in the
requisition for promotion sent to the
UPPSC for the recruitment year 2013-14,
in support of the impugned orders dated
03.07.2009 and 05.02.2010 be released,
subject
to
the
re-calculation/redetermination of the promotional quota
seats by the High level Committee;

(f) Except for the vacancy seats
re-determined/re-calculated by the High
level committee for the promotion of Asst.
Engineers for vacancies arising during the
period of 1997-98 to 2003-04, all the
withheld seats may be filled as per the
provisions of new Service rules, 2004;

(g)
Since,
promotions
have
already been made as per the promotion
order dated 02.08.2008, it is hereby
directed that until and unless the aforesaid
exercise of re-determination and/or recalculation of the number of promotion
quota is not determined by the state
government and the list of promotion is not
prepared strictly as per the service rules of
1936, these promotees shall continue to
work & be posted in their respective
position;

(h) The State authorities are
directed
to
undertake
aforementioned
exercise and complete it within a period of
two months from the date of production of
certified copy of order passed by this court.

(192) With the aforesaid observations
and directions, all the writ petitions stands
disposed of finally.

(193) There shall be no order as to
cost.
----------
(2023) 6 ILRA 265
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 4029 of 2011

Kamlesh Kumar ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
266 INDIAN LAW REPORTS ALLAHABAD SERIES
S.C. Yadav, G.M. Kamil, Suresh Chandra
Yadava

Counsel for the Respondent:
C.S.C.

A. Service Law - Appointment - Forged
document was used in obtaining the
appointment - Dispensing the service -
Violation of principle of natural justice -
Relevance
-
Held,
person
appointed
erroneously on a post must not reap the
benefits
of
wrongful
appointment
jeopardizing
the
interests
of
the
meritorious and worthy candidates - If
initial action is not in consonance with
Law, the subsequent conduct of a party
cannot sanctify the same - High Court
refused to interfere in the impugned
action of the respondents dispensing the
services of the petitioner. (Para 12, 13, 14
and 18)

B. Maxim - Subia Fundamento cofit opus -
Meaning - A foundation being removed,
the superstructure falls. (Para 13)

C. Maxim
- Fraus et jus nunquam
cohabitant - Meaning - Fraud and justice
never dwell together. (Para 16)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Vinodan T. Vs University of Calicut; (2002) 4
SCC 726: AIR 2002 SC 1885: 2002 AIR SCW
2025

2. St. of U. P. Vs Neeraj Awasthi; (2006) 1
SCC667: 2006 AIR SCW 875: (2005) 10 SCALE
286

3. U.O.I. Vs Major General Madan Lal Yadav
(Retd.); AIR 1996 SC 1340: 1996 AIR SCW 1500
: (1996) 3 SCR 785

4. Lily Thomas Vs U.O.I.; AIR 2000 SC 1650:
2000 Cr LJ 2433; (2000) 6 SCC 224

5. S.P. Chengalvaraya Naidu Vs Jagannath;
(1994) 1 SCC 1: AIR 1994 SC 853
6. United India Insurance Co. Ltd. Vs Rajendra
Singh; (2000) 3 SCC 581 : AIR 2000 SC 1165

7. Mohammed Ibrahim Vs St. of Bihar; (2009) 8
SCC 751

8. Vimla Delhi Administration; AIR 1963SC
1572: 1963 (2) SC) 559 (1963) 2 Cr LJ 44

9. Indian Bank Vs Satyam Fibres (India) Pvt.
Ltd.; (1996) 5 SCC 550; AIR SCW3228: AIR
1996 SC 2592

10. St. of Andhra Pradesh Vs T. Suryachandra
Ran; AIR 2005 SC 3110: 2005 AIR SCW 3603:
(2005)6 SCC 149

11. K.D. Sharma Vs Steel Authority of India Ltd.;
(2008) 12 SCC 481: AIR 2009 SC (Supp) 1309 :
2008 AIR SCW 6654

12. Regional Manager, Central Bank of India Vs
Madhalika Gor Prasad Dahir; (2008) 13 SCC
170: AIR 2008 SC 3266 : 2008 AIR SCW 5525

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Shri G.M.Kamil, learned
Counsel for the petitioner and learned
Standing Counsel for the State.

2. Through this petition the petitioner
has prayed for issuance of a writ in the
nature of Certiorari quashing the oral order
of dispensing the services of the petitioner
dated 16.12.2010 passed by opposite party
no.5 and also a writ in the nature of
Mandamus
commanding
the
opposite
parties to allow the petitioner to work on
his post and pay him salary each and every
month regularly.

3. Learned Counsel for the petitioner
submits that the petitioner was engaged on
muster roll as daily wager in Work Charge
Establishment as Work Supervisor vide
Office Memorandum 369/W-1/Sin.Kha.Ta
6 All. Kamlesh Kumar Vs. State of U.P.
267
dated 12.3.2003 by the order of Executive
Engineer,
Irrigation
Division,
Tanda-
Ambedkar Nagar and he was posted at IInd
Sub Division, Baskhari, in compliance of
the Office Memorandum dated 20.2.2003
passed by Engineer-In-Chief (Work Charge
Establishment
Prakoshtha),
Irrigation
Department, U.P., Lucknow. In compliance
of letter dated 20.02.2003, the petitioner
has joined on 5.7.2003.

4. Learned Counsel for the petitioner
further submits that the service book of the
petitioner was also prepared on 05.07.2003.
Thereafter vide order dated 07.07.2003 the
Superintending
Engineer,
12th
circle,
Irrigation Work, Ganga Sinchai Bhawan,
Telibagh,
Lucknow,
appointed
the
petitioner to the post of Junior Clerk in pay
scale
of
Rs.3050-4590
in
regular
establishment,
from
work
charge
establishment in backlog quota of Schedule
Caste, in Group "C" and posted at Irrigation
Department, Sharda Nagar, Lakhimpur
Kheri, in compliance of D.O. letter dated
13.06.2003 of Chief Engineer (Sharda
Sahayak), Irrigation Department, U.P.,
Lucknow.

5. Learned Counsel for the petitioner
further
submits
that
the
Executive
Engineer, Irrigation Division, Ambedkar
Nagar relieved the petitioner and thereafter,
the petitioner has submitted his joining on
27.7.2003
before
Executive
Engineer,
Irrigation
Division,
Sharda
Nagar,
Lakhimpur
Kheri.
Vide
Office
Memorandum dated 10.9.2007 the services
of the petitioner was confirmed to the post
of Junior Clerk with effect from the date of
issuance of order in order to promote the
petitioner to the post of Senior Clerk (pay
scale of Rupees 4000-6000) from the post
of Junior Clerk. Thereafter, a Committee
was constituted by Executive Engineer,
Irrigation
Division,
Sharda
Nagar,
Lakhimpur Kheri to examine the original
documents of the petitioner, however, name
of the petitioner was not released for
promotion for the post of Senior Clerk
although the original documents of the
petitioner were verified and no suspicion
was found. Subsequently, vide Office
Memorandum dated 04.12.2010, charge of
the petitioner was given to Naim Ahamad,
Senior Clerk by opposite party no.5. In
pursuance thereof, the petitioner has
handed over his complete charge to Naim
Ahmad on 16.12.2010. The petitioner has
proceeded on casual leave and has returned
on 20.02.2011 with a request to make
payment of salary for the month of
December, 2010 onwards.

6. It is submitted that since 16.12.2010
the petitioner has not been authorized to do
work nor paid his salary nor any inquiry
has
been
contemplated
against
the
petitioner as provided under Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 nor the petitioner has
been permitted to resume duty.

7.
Per
contra,
learned
Standing
Counsel has submitted that the petitioner
has started working in the Work Charge
Establishment in the Irrigation Division
Tanda Ambedkar Nagar in furtherance of
the order dated 20.2.2003 allegedly passed
by the Engineer-in-Chief (Work Charge
Establishment) Irrigation Department, U.P.,
Lucknow.
The
Executive
Engineer,
Irrigation
Division,
Tanda,
Ambedkar
Nagar vide letter dated 24.3.2003 has
requested for information regarding the
joining on which it was informed vide letter
dated 24.4.2010 by the Executive Engineer
Office of the Engineer in Chief (Work
Charge
Establishment)
Irrigation
Department, U.P. that neither any such
268 INDIAN LAW REPORTS ALLAHABAD SERIES
letter dated 20.2.2023 was issued from the
his office nor the letter dated 24.3.2003
written by Executive Engineer, Irrigation
Division Tanda, Ambedkar Nagar has been
received in his office. Copy of the letter
dated 24.4.2003 has been annexed as
Annexure CA-3 to the Counter Affidavit.
Thus, an inquiry was ordered by the Chief
Engineer
(Sharda
Sahayak)
and
Superintending Engineer, 14th Division,
Irrigation Work Azamgarh was appointed as
Enquiry Officer. The Enquiry Officer has
submitted his report vide order dated
16.9.2010, a copy of which has been annexed
as Annexure CA-5 to the Counter Affidavit
wherein it was found that the petitioner has
obtained the appointment on the basis of
forged documents and, accordingly, vide
order dated 7.12.2010 passed by the
Superintending
Engineer
12th
Division
Irrigation Work, Lucknow, it was directed
that the charge of the petitioner be handed
over to some other officer and his salary be
stopped. An First Information Report was
also directed to be lodged vide letter dated
17.1.2011 addressed to Superintendent of
Police, Lakhimpur Kheri requesting him to
lodge an FIR against the petitioner.

8. Learned Standing Counsel has
further submitted that the letter dated
24.3.2003 was sent and the petitioner was
given all the benefits because there was no
information that the letter dated 20.2.2003
is a forged document and the appointment
of the petitioner is illegal and has been
obtained by committing fraud.

9. Learned Standing Counsel has also
produced the written instruction received
from the department dated 27.3.2023, the
same is taken on record.

10.
Learned
Standing
Counsel
further submitted that since the initial
appointment of the petitioner as a work
charge employee was on the basis of the
fake
and
forged
documents,
the
consequential
benefits
given
to
the
petitioner will not confer any right as fraud
vitiates everything.

11. I have considered the arguments
advanced by learned counsel for the parties
and perused the materials available on
record as well as documents (F.I.R. copy,
copy of letter by which inquiry officer was
appointed and Inquiry Report) produced by
learned Standing Counsel.

12. It is settled law that a person
appointed erroneously on a post must not
reap the benefits of wrongful appointment
jeopardizing the interests of the meritorious
and worthy candidates. However, in cases
where a wrongful or irregular appointment
is made without any mistake on the part of
the appointee and upon discovery of such
error or irregularity the appointee is
terminated, Supreme Court has taken a
sympathetic view in the light of various
factors including bonafide of the candidate
in such appointment and length of service
of the candidate after such appointment
(See: Vinodan T. v. University of Calicut,
(2002) 4 SCC 726: AIR 2002 SC 1885:
2002 AIR SCW 2025; State of Uttar
Pradesh v. Neeraj Awasthi, (2006) 1 SCC
667: 2006 AIR SCW 875: (2005) 10
SCALE 286)

13. It is also settled law that if initial action
is not in consonance with law, the subsequent
conduct of a party cannot sanctify the same
"Subia Fundamento cofit opus a foundation
being removed, the superstructure falls. A person
having done witing cannot take advantage of his
own wrong and plead bar of any law to frustrate
the lawful trial by a competent Court. Nullus
Commodium capere Potest De Iuria Sua Propria.
6 All. Ram Gopal Lodhi Vs. State of U.P. & Ors.
269
(Vide. Union of India v. Major General Madan
Lal Yadav (Retd.), AIR 1996 SC 1340: 1996
AIR SCW 1500 (1996) 3 SCR 785). The
violators law cannot be permitted to urge that
their offence cannot be subject matter of Inquiry,
trial or investigation. (Vide: Lily Thomas v.
Union of India, AIR 2000 SC 1650: 2000 Cr LJ
2433; (2000) 6 SCC 224)

14. So far as the arguments of learned
counsel for the petitioner that no opportunity has
been provided by the department before taking
charge from him and the action of the
department suffers from non-compliance of
principle of natural justice is concerned, law in
this regard is settled.

15. In S.P. Chengalvaraya Naidu v.
Jagannath, (1994) 1 SCC 1: AIR 1994 SC
853, the Apex Court held that it is settled
proposition of law that where an applicant gets
an order/office by making misrepresentation or
playing fraud upon the competent authority, such
order cannot be sustained in the eyes of law.
"Fraud avoids all judicial acts ecclesiastical or
temporal.

16. In United India Insurance Co. Ltd. v.
Rajendra Singh, (2000) 3 SCC 581 : AIR 2000
SC 1165, the Apex Court observed that "fraud
and justice never dwell together" (fraus et jus
nunquam cohabitant) and it is a pristine maxim
which has never lost its temper over all these
centuries.

17. In Mohammed Ibrahim v. State of
Bihar, (2009) 8 SCC 751, the Apex Court held
that the ratio laid down by Supreme Court in
various cases is that dishonesty should not be
permitted to bear the fruit and benefit to the
persons
who
played
fraud
or
made
misrepresentation and in such circumstances the
Court should not perpetuate the fraud. Fraud is
an intrinsic, collateral act, and fraud of an
egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud as a
deliberate deception with a design to secure
something, which is otherwise not due. The
expression "fraud involves two elements, deceit
and injury to the person deceived. It is a cheating
intended to get an advantage (Vide Vimla Delhi
Administration, AIR 1963 SC 1572: 1963 (2)
SC) 559 (1963) 2 Cr LJ 44 Indian Bank v.
Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC
550; AIR SCW 3228: AIR 1996 SC 2592; State
of Andhra Pradesh v. T. Suryachandra Ran AIR
2005 SC 3110: 2005 AIR SCW 3603: (2005) 6
SCC 149; K.D. Sharma v. Steel Authority of
India Ltd., (2008) 12 SCC 481: AIR 2009 SC
(Supp) 1309, 2008 AIR SCW 6654; and
Regional Manager, Central Bank of India v.
Madhalika Gor Prasad Dahir, (2008) 13 SCC
170: AIR 2008 SC 3266: 2008 AIR SCW 5525.

18. Keeping in mind the aforesaid legal
proposition of law and the fact that the
petitioner got appointment on the post in
question on the basis of forged and frivolous
documents, this Court is of the view that the
impugned
action
of
the
respondents
dispensing the services of the petitioner
w.e.f. 16.12.2010, does not require any
interference under Article 226 of the
Constitution of India.

19. The writ petition is, accordingly,
dismissed.
----------
(2023) 6 ILRA 269
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 9491 of 2011

Ram Gopal Lodhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents