Allahabad High Court
Kamlesh Kumar vs State Of U.P. Thorugh The Principal ... on 31 May, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED ON 28.3.2023 DELIVERED ON 31.5.2023 Case :- WRIT - A No. - 4029 of 2011 Petitioner :- Kamlesh Kumar Respondent :- State Of U.P. Thorugh The Principal Secy. Irrigation Dept. Counsel for Petitioner :- S.C.Yadav,G.M Kamil,Suresh Chandra Yadava Counsel for Respondent :- C.S.C. 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 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 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. (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.
Order Date:-31.5.2023 Madhu