IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 32309 of 2009(G) -------------------------- PETITIONER(S): ------------------- SRI.A.GOPALAN, (FORMER L.D. CLERK, PANDANAD GRAMA PANCHAYAT) DHANYA SADANAM, PANDANAD, CHENGANNUR, ALAPPUZHA DT. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF PANCHAYATS, ALAPPUZHA. 4. THE SECRETARY, PANDANAD GRAMA PANCHAYAT, CHENGANNUR, ALAPPUZHA DT. GOVT.PLEADER SMT.ANU SIVRAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 32309 OF 2009 (G) ===================== Dated this the 12th day of November, 2009 J U D G M E N T This is a case where the petitioner is claiming compassionate allowance under Rule 5 of Part III KSR. 2. Petitioner was an LD Clerk under the Mulakkuzha Panchayat. On allegations of misappropriation of Panchayat funds collected as tax, a Criminal case was registered against him as Crime No.4/92. The case was investigated and the charge sheet was laid before the court of Enquiry Commissioner and Special Judge, Trivandrum for offences under Prevention of Corruption Act and the Indian Penal Code as CC No.3/94. Petitioner was convicted and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.15,000/- with a default sentence. 3. He filed Criminal Appeal No.218/96 before this Court and sentence was suspended. Meantime, he was placed under suspension and though he was reinstated by Ext.P2 order dated 5/7/99, finally petitioner was removed from the service. The order or removal from service was challenged before this Court in OP WPC 32309/09 :2 : NO.18684/99. During the pendency of the original petition, Criminal Appeal No.218/96 was dismissed by judgment dated 28/6/04. On 2/7/04, OP No.18684/99 filed against his removal from service was also dismissed by Ext.P4 judgment. The judgment of this Court in Criminal Appeal No.218/96 was confirmed by the Apex Court by dismissing SLP (Criminal) No.5704/04, as a result of which, the petitioner underwent the imprisonment and has also remitted the fine. 4. Subsequently, he approached the Government by filing a representation on 3/2/2005 for compassionate allowance as provided under Rule 5 of Part III KSR. That was rejected by Ext.P7 order stating that Rule provides that no pension shall be granted to an employee dismissed or removed for misconduct, but that such employees so dismissed may be granted compassionate allowance, in cases deserving special consideration. It is stated in Ext.P7 that a person who has suffered conviction in a Vigilance Case does not deserve any compassion or special consideration. Petitioner pursued the matter by filing Ext.P8 and that also was rejected by the Government by Ext.P9 order. It is challenging Exts.P7 and P9 the writ petition is filed. WPC 32309/09 :3 : 5. The contention raised by the counsel for the petitioner is that Rule 5 is meant to apply to persons like him and therefore the reasoning in Exts.P7 and P9 rejecting his application is illegal. It is also contended that the view taken in Exts.P7 and P9 is opposed to the principles laid down by this Court in Thankappan Nair v. State of Kerala (2001(3) KLT 855). 6. In so far as the judgment in Thankappan Nair's case (supra) is concerned, it should be noticed that, that was a case where a person was dismissed from service and that only for the reason that he was dismissed from service, compassionate allowance was declined. This Court held that the Rule is meant to apply to such persons and therefore the rejection on the ground that the claimant was a dismissed employee was erroneous. On that ground, the matter was directed to be reconsidered. It has held that though it is a matter of discretion, still the discretionary power should be exercised according to rules of reason and justice, and not according to the whims and fancies of the decision maker. 7. However, the distinguishing fact as far as this case is concerned is that in Ext.P7, the reason stated by the Government WPC 32309/09 :4 : is that they do not find any ground to show compassion to a person who suffered imprisonment consequent on the conviction by a Vigilance Court. Therefore, rejection was not on the ground that the petitioner is a dismissed Government servant. That certainly is a valid reason and therefore the judgment relied on can have no application to the facts of this case. 8. As rightly noticed in the judgment referred to above, the power conferred under the Rule is discretionary. Discretion has to be exercised in accordance with rules of reason and justice. Applying the discretion, the Government have decided that a person who has suffered conviction of offences committed by him in the course of discharge of his official duties do not deserve any compassion. Such reasoning cannot be said to be an arbitrary or perverse one warranting to be interfered with in a proceedings under Article 226 of the Constitution of India. I am not persuaded to interfere. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp