IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.06.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.35545 of 2006 Chandrasekaran .. Petitioner Vs. 1.Director General of Police, Government Estate, Madras-600 002. 2.Office of the Commandant, Tamil Nadu Special Police, IInd Battalion, Avadi, Madras-54 .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus directing the respondents to consider and re-appoint the applicant in any post in the Police department commensurate with his qualification as the only legal heir of the deceased Constable Narayanasami who expired on 10.10.1986 while in harness on compassionate ground. For Petitioner : Mr.P.K.Rajagopal For Respondents: Mr.P.Gurunathan, GA - - - - ORDER The petitioner filed O.A.No.601 of 1998, seeking to challenge the order, dated 4.5.94 rejecting his request for re-appointment. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.35545 of 2006. 2.The petitioner's father was appointed as a Police Constable. He died in harness on 10.10.1986. Thereafter, the petitioner requested for a compassionate appointment on the ground of the death of his father. At that time, the petitioner did not have the minimum general educational qualification, i.e. a pass in the SSLC to get appointed to the post of Junior Assistant. The petitioner in order to get that appointment corrected his mark sheets as if he had passed the SSLC. Conceding the request of the petitioner, he was appointed as a Junior Assistant in the office of the Tamil Nadu Special Police, II Battalion at Avadi, by an order, dated 17.11.86. 3.On coming to know about the forged document produced by the petitioner, a criminal case was registered at the District Crime Branch, St. Thomas Mount in Crime No.10/87. The petitioner was charged under Sections 468 and 471 IPC. The Judicial Magistrate https://hcservices.ecourts.gov.in/hcservices/ Court, No.1, Poondamalli found the petitioner guilty of the charges. Even when questioning under Section 313 Cr.P.C., the petitioner had admitted his guilt and applied for leniency. The learned Magistrate, after holding the petitioner guilty, convicted the petitioner, but however the petitioner was released under probation for a period of one year under Section 4 of the Probation of Offenders Act, 1958. The trial court also observed that he can have the benefit of Section 12 of the said Act. In the meanwhile, the petitioner was dismissed from service for having produced a forged certificate. 4.The petitioner did not challenge the order of removal, but after the judgment of the criminal court, he sent a representation, stating that since the criminal court had reduced him on probation, he can atleast be given an appointment commensurate with his educational qualification. It is this representation which was rejected by the impugned order. 5.The Supreme Court has held that an appointment secured by fraud cannot be condoned. In this context, it is necessary to refer to the judgment of the Supreme Court in A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar reported in (2007) 13 SCC 352 to show that an appointment obtained on compassionate ground on false grounds was set aside by the court. It is necessary to refer to the following passage found in para 7 of the said judgment, which is as follows: "7. ... These facts clearly disclose that the appointment on compassionate ground was secured by playing fraud. Fraud cloaks everything. In such admitted facts, there was no necessity of issuing show-cause notice to him. The view of the High Court that termination suffers from the non-observance of the principles of natural justice is, therefore, clearly erroneous. In our view, in the given facts of this case, no prejudice whatsoever has been caused to the respondent. The respondent could not have improved his case even if a show-cause notice was issued to him." 6.Even while dealing with the removal of disqualification found under Section 12 in relation to a government servant governed by the protection given under Article 311(2), the Supreme Court had an occasion to consider the said issue. It will be relevant to refer to the judgment of the Supreme Court in Divisional Personnel Officer, Southern Rly. v. T.R. Chellappan reported in (1976) 3 SCC 190. The relevant passages found in paragraphs 13 to 20 may be usefully extracted below: "13. .... If Section 12 of the Probation of Offenders Act completely wiped out the disqualification contained in Article 311(2) proviso (a) then it would have become ultra vires as it would have come into direct conflict with the provisions of the proviso (a) to Article 311(2). In our opinion, however, Section 12 of the Act refers to only such disqualifications as are expressly mentioned in other statutes regarding holding of offices or standing for elections and so on. This https://hcservices.ecourts.gov.in/hcservices/ matter was considered by a number of High Courts and there is a consensus of judicial opinion on this point that Section 12 of the Act is not an automatic disqualification attached to the conviction itself. 14. In R. Kumaraswami Aiyar v. Commissioner, Municipal Council, Tiruvannamalai Rajagopala Ayyangar, J., as he then was, observed as follows: If for instance the petitioner is dismissed from service because he has been found guilty of an offence involving moral turpitude it cannot be said that he is suffering from a disqualification attaching to a conviction. What Section 12-A has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the accused. In my judgment the possibility of disciplinary proceedings being taken against a person found guilty is not a disqualification attaching to the conviction within the meaning of Section 12-A of the Probation of Offenders Act. The same view was endorsed by the Full Bench of the Punjab and Haryana High Court in Om Prakash v. Director, Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala where it was observed: “What Section 12 removes is a disqualification attaching to a conviction. In my opinion, neither liability to be departmentally punished for misconduct is a disqualification, nor it attaches to the conviction. “Disqualification” in its ordinary dictionary meaning connotes something that disqualifies or incapacitates. To disqualify a person for a particular purpose means to deprive that person of the qualities or conditions necessary to make him fit for that purpose.” It was further observed by the High Court: “The other reason why Section 12 of the Act does not help the petitioner is that the departmental proceedings are not attached to the conviction of the offence. Departmental proceedings are not taken because the man has been convicted. The proceedings are directed against the original misconduct of the government servant.... No part of Section 12 is intended to exonerate a government servant of his liability to departmental punishment for misconduct. This provision does not afford immunity against disciplinary proceedings for the original misconduct. What forms basis of the punishment is the misconduct and not the conviction.” 15. A Full Bench of the Delhi High Court in Director of Postal Services v. Daya Nand held the same view and observed thus: “Firstly, the ordinary meaning of ‘qualification’ is the possession of some merit or quality which makes the https://hcservices.ecourts.gov.in/hcservices/ possessors eligible to apply for or to get some benefit. The word ‘disqualification’ used in Section 12 has the opposite meaning. It imposes a disability on the person to whom the disqualification is attached in applying for or getting such benefit. The disqualification contemplated by Section 12 is, something attached to the conviction, namely, something which is a consequence or the result thereof. Instances of such disqualification may be found in a statute, statutory rule or in administrative practice. Under Section 108 of the Representation of People Act, 1951, a person is disqualified to be a member of Parliament or State Legislature if he is convicted of certain offences. It would also be an administrative consideration in entertaining applications for jobs or for grant of licences to disfavour an applicant who is a convict. Such a disqualification is removed by Section 12. This meaning of disqualification does not include the reason by a hearing prior to punishment is dispensed with by proviso (a) to Article 311(2) of the Constitution. Secondly the object of Section 12 is to remove a disqualification attached to conviction. It does not go beyond it.” 16. The decision in R. Kumaraswami Aiyar case was followed in a later case in Embaru v. Chairman, Madras Port Trust. 17. The Andhra Pradesh High Court in Akella Satyanarayana Murthy v. Zonal Manager, Life Insurance Corporation of India, Madras5 appears to have taken the same view where it was observed thus: “…we are of the view that what Section 12 of the Central Act has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the official concerned. The disciplinary authority is not precluded from proceeding under Regulation 89(4).” 18. The Madhya Pradesh High Court also took the same view in Premkumar v. Union of India where it was observed: “We have heard the learned counsel at some length but we find ourselves unable to agree with the above contention. The relevant words of the section are ‘shall not suffer disqualification, if any, attaching to a conviction of an offence under such law’. The words can only be read so as to remove the disqualification which under some law may attach to a person on account of his conviction. For instance, if a person is convicted of an offence, he is disqualified from standing for election to the Central or State Legislatures. But if such a person is given benefit under the Probation of Offenders Act, then by virtue of Section 12 of that Act the disqualification for that purpose (standing for election) will stand removed.” https://hcservices.ecourts.gov.in/hcservices/ 19. A Division Bench of the Delhi High Court in Iqbal Singh v. Inspector General of Police, Delhi took a contrary view but that decision has been overruled by a later decision of the Full Bench of the same High Court in Director of Postal Services v. Daya Nand to which we have already referred to. 20. Even the Rajasthan High Court in its judgment concerning Civil Appeal No. 891 of 1975 has endorsed the view taken by the Madras High Court and followed by the other High Courts. We find ourselves in complete agreement with the view taken by the Madras High Court as referred to above and as endorsed by the Delhi, Rajasthan, Punjab, Andhra Pradesh and Madhya Pradesh High Courts." 7.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Director General of Police, Government Estate, Madras-600 002. 2.The Office of the Commandant, Tamil Nadu Special Police, IInd Battalion, Avadi, Madras-54 W.P.NO.35545 of 2006 GGK(CO) SRA(12/6/2009) https://hcservices.ecourts.gov.in/hcservices/