* THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR + WRIT PETITION No.17979 of 2001 % Dated: 25.11.2010 D.Subbaramaiah …………….Petitioner Vs. The Chief General Manager, APGENCO, Khairatabad, Hyd. And another ……………….Respondents. ! Counsel for the Petitioner : Sri J.Ashvini Kumar ^Counsel for the Respondents: None. <Gist: >Head Note: ? Citations: 1) 1996 (4) SCC 17 THE HON’BLE RI JUSTICE B.CHANDRA KUMAR WRIT PETITION NO.17979 OF 2001 DT.25.11.2010 Between: D.Subbaramaiah …………….Petitioner Vs. The Chief General Manager, APGENCO, Khairatabad, Hyd. And another ……………….Respondents. O R D E R: This writ petition has been filed in the nature of Mandamus to declare the impugned proceedings passed by the second respondent vide proceedings Lr.No.CE/E/G & M/RTPP/PO/F.D./D.No.3213/2000, dated 15.11.2000 as arbitrary and illegal, besides violative of Articles 14 and 21 of the Constitution of India and also contrary to the orders passed by this Court in W.P.No.3649 of 1998, dated 12.08.1998. The brief facts of the case are as follows: The then A.P.S.E.B., which is now called as APGENCO, represented by respondents 1 and 2 acquired Ac 0.93 cents of the land of the petitioner situated at Kallamalla Village, Yerraguntla Mandal, Cuddapah District in the year 1991 for the purpose of construction of Rayalaseema Thermal Power Project. The petitioner was paid Rs.28,915/- towards compensation by award No.4/1991-92, dated 30.08.19991. While acquiring the lands, the erstwhile A.P.S.E.B., had assured suitable employment to the displaced persons in terms of G.O.Ms.No.98, Irrigation (Project Wing) department, dated 15.04.1986. According to the petitioner, since his entire lands were acquired, he was deprived of his livelihood and he was entitled for the suitable employment as a displaced person in terms of the above referred G.O. When he submitted an application to provide suitable employment, the said application was forwarded to the concerned authorities and his name was shown at S.No.54. However, his case was not considered. It appears that incidentally, there is a clerical mistake showing the land as Ac 5.93 cents instead of 0.93 cents of land and then again his case was re-considered. Though he requested for reconsideration, his application was not yet considered. Then he filed W.P.No.3649 of 1998 and this court allowed the said writ petition vide its order, dated 12.08.1998 and the respondents were directed to consider the claim of the petitioner for appointment for a suitable post in terms of G.O.Ms.No.98, dated 15.04.1986. Aggrieved by the same, the respondents preferred an appeal in W.A.No.1092 of 2000 and the said appeal was dismissed by a Bench consisting of the then Honourable the Chief Justice and the Honourable Justice Goda Raghuram on 19.10.2000. In the said appeal, the following order was passed: “It is agreed to by the learned counsel for both the parties that the appellants will consider the case of the respondent for employment as a displaced person land oustee on account of his land having been acquired by the Government, without treating him as an earning member, solely on account of his having entered into some contracts with the respondents either in the post of which are still subsisting. Accordingly, we dispose of the writ appeal in the above terms. However, in view of the fair stand taken by the learned counsel for the appellants, we delete the costs of Rs.3,000/-, imposed by the learned Single Judge. No costs.” In pursuance of the orders passed by this Court, the petitioner had again sent a representation, dated 25.10.2000. However, the second respondent issued the impugned proceedings stating that the Government had negatived the proposals for the appointment of displaced persons by its letter, dated 03.04.1998 and the petitioner was convicted for an offence under Section 353 of I.P.C., in C.C.No.23 of 1997 and therefore, he was disqualified for employment. Then he filed a detailed representation on 23.11.2000 mainly contending that Act 2 of 1994 has no application in respect of the displaced persons, who were displaced way back in 1993 and that in the earlier writ petition, the said issue was not raised by the respondents. No counter has been filed. The main contention of the learned counsel for the petitioner Sri J.Ashvini Kumar is that admittedly, the land of the petitioner was acquired in the year 1991 and at that time, Act 2 of 1994 was not communicated and that as per the relevant G.O.Ms.No.98, Irrigation (Project Wing) Department, dated 15.04.1986, the petitioner was entitled for employment as a displaced person. Referring to the conviction in C.C.No.23 of 1997, Judicial Magistrate of First Class, Kamalapuram, it is submitted that the offence with which the petitioner was charged does not come under the definition of moral turpitude and more over, the petitioner was imposed punishment of Rs.250/- and when the conviction and sentence of fine alone is imposed, such kind of conviction would not make the petitioner dis-entitle for employment. He has also placed judgment of the Supreme Court in PAWAN KUMAR VS. STATE OF HARYANA AND ANOTHER[1]. It is also his submission that in the earlier writ petitions and writ appeals, the respondents had not taken a plea that Act 2 of 1994 is applicable to the facts of this case or that it has got any retrospective effect. The only point that arise for consideration is whether the impugned proceedings are liable to be set aside. Whenever a representation has been made across the Bar before a court and when the court believes the same as the honest representation and acts upon such representation and passes an order, a party on whose behalf such representation has been made, cannot and should not consider such a representation. A reading of the order of the Bench consisting of the then Chief Justice and the Honourable Sri Justice Goda Raghuram in W.A.No.1092 of 2000 reveals that the learned counsel for both the parties made a representation before this court that the appellants i.e., respondents in this case will consider the case of the respondent therein, i.e., the petitioner herein. Having made such a representation that they would consider the case o the petitioner and invited an order on 19.10.2000 in W.A.No.10 of 2000, I am of the firm view that the respondents herein cannot go back and act contra to the representation made by them before the Bench consisting of the then the Honourable Chief Justice and another learned Judge. Be that as it may, no counter has been filed till this date by the respondents, though the writ petition has been pending since 2001. Admittedly, the land of the petitioner was acquired in 1991 and he was paid compensation by orders dated 30.08.199 and admittedly, G.O.Ms.No.98, Irrigation (Project Wing), dated 15.04.1986 was in force, which makes the petitioner entitled to the job as a displaced person and admittedly, Act 2 of 1994 was not in force when the land of the petitioner was acquired. There is nothing on record to show that Act 2 of 1994 has got retrospective effect and it is applicable to the persons whose lands were acquired much before the Act came into force. More over, as seen from the recitals of the orders in W.P.No.3649 of 1998 and the order in W.A.No.1092 of 2000, dated 19.10.2000, it appears as contended by the learned counsel for the petitioner that the respondents herein had not taken a plea in those proceedings with regard to Act 2 of 1994. When they have not taken such a plea in the earlier proceedings, which was to their knowledge on the date of passing of those orders, the respondents are precluded from denying an opportunity to the petitioner basing on the said Act. Coming to the second ground, on which the claim of the petitioner is recorded is that he was convicted for the offence under Section 353 I.P.C. Admittedly, according to the learned counsel for the petitioner, he was imposed a fine of Rs.250/- in C.C.No.23 of 1997 by the Judicial Magistrate of First Class, Kamalapuram. According to the learned counsel for the petitioner, a fine amount which is only Rs.250/- cannot be treated as a dis- qualification for employment under A.P.GENCO. It is also submitted that the second ground that the petitioner is not entitled for employment on the ground that he was convicted was already taken in the grounds of appeal filed by the respondents in W.P.No.1092 of 2000. In spite of taking that ground and when their counsel made a representation that the case of the appellant would be considered and having invited an order from this Court, now the respondents cannot take the same ground. He has also relied on the judgment of the Supreme Court in case between PAWAN KUMAR VS. STATE OF HARYANA AND ANOTHER (supra-1), wherein the Honourable the Supreme Court observed as follows: “The attention of Parliament was drawn to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs.2000 or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever.” It was also observed as follows: ”Moral turpitude” is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 02.02.1973 (Annexure E in the Paper- book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26-3-1975 explained the policy decision of 2.2.1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: “The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; 1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general 2) Whether the motive which led to the act was a base one. 3) Whether on account of the act having been committed the preparatory could be considered to be of a depraved character or a person who was to be looked down upon by the society. Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude.” Section 294 IPC still remains out of the list. Thus the conviction of the appellant under Section 294 IPC on its own would not involve moral turpitude depriving him of the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirements of the policy decision above- quoted.” Though it is not clear under what circumstances the petitioner alleged to have committed the offence under Section 353 IPC, but the fact remains that he was sentenced to pay Rs.250/- and having regard to the observations made by the Supreme Court as referred to above and also the fine amount imposed against the petitioner, I am of the considered view that the same cannot come in the way of providing employment to the petitioner. In view of the above circumstances, the writ petition is allowed directing the respondents to consider the case of the petitioner for appointment basing on his earlier representation, dated 25.10.2000 within a period of three months and pass appropriate orders. No order as to costs. ______________________ B.CHANDRA KUMAR J., Dt.25.11.2010 tjs [1] ) 1996 (4) SCC 17