Telangana High Court
J. Prathyusha vs The State Of Telangana on 5 January, 2021
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Interlocutory Application No.2 of 2018 in Writ Petition No.38599 of 2018
And
Writ Petition No.38599 of 2018
and
Contempt Case No.3232 of 2018
COMMON ORDER :
The petitioner herein is the married daughter of Late Sri J. Padma Reddy who was working as Shroff / Sub-Treasurer, Thungathurthy, Nalgonda District who had expired while in service on 30.08.2015.
2. The petitioner's mother, Smt. J. Shakunthala, wife of Late J. Padma Reddy, submitted a representation on 06.05.2016 stating that her husband had died while in service on 30.08.2015, that petitioner is her daughter who had been deserted by her husband and she was staying with them at the time of death of Sri J. Padma Reddy, that she was wholly dependent on them and a compassionate appointment may be granted to petitioner as Junior Accountant.
3. The petitioner herein had also made a similar representation stating that she had been deserted by her husband, that she was staying with her father who had died while in service on 30.08.2015, and she has to take care of her mother, that she had also passed Intermediate Examination and a compassionate appointment may be granted to her.
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4. An affidavit was also submitted by her stating that her husband deserted her and she was living with her parents since the previous four years and was wholly depending on her father at the time of his death, along with 'No Property Certificate' as well as 'No Earning Member Certificate' along with 'Family Members Certificate' from the Revenue Divisional Officer, Bhongir Mandal, Nalgonda District.
5. The certificates submitted by petitioner were verified and having accepted the genuineness, and the fact that she was a local candidate to Nalgonda District, she was given appointment on compassionate basis as Junior Accountant subject to her acquiring requisite educational qualification for appointment to the post of Junior Accountant and also computer qualification within five (05) years vide proceedings No.A1/2243/2016 dt.02.09.2016.
6. She joined in the post of Junior Accountant on 03.09.2016 at Sub-Treasurer's Office, Nakrekal in Nalgonda District and after bifurcation and creation of new Districts she was allotted to District Treasurer's Office, Suryapet w.e.f. 11.10.2016.
7. A complaint was filed against her by one V. Ramesh on 01.02.2017 in the Office of the Director of Treasuries and Accounts, Telangana State, Hyderabad alleging that she was the married daughter of Late J. Padma Reddy, Shroff / Sub-Treasurer that her husband was working as a State Government teacher and her appointment as Junior Accountant was illegal.
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cc_3232_2018
8. On 20.05.2017, an Enquiry Officer was appointed to conduct preliminary enquiry into the matter and to furnish factual report with relevant material.
9. A preliminary enquiry was conducted on 15.06.2017 in the Office of the Dy. Director, District Treasurer, Nalgonda on the said allegations and a report was submitted to the Director of Treasuries and Accounts with the following findings, viz., :
(i) that petitioner was married to one L. Srinivas Reddy, who was working as State Government teacher in Education Department, and that he was presently working as School Assistant in G.H.S. Gunj, Yadadri;
(ii) though petitioner had stated that she had separated herself from her husband on an agreement made in the presence of elders and they were staying separately, no such valid proof was furnished by her before her appointment on compassionate grounds;
(iii) and upon verification of employee details of Sri L. Srinivas Reddy, her husband, it is found that he had mentioned her as his wife and declared her name as his nominee on 15.02.2017 in his service records.
10. Thereafter, the Director of Treasuries and Accounts, Telangana State, Hyderabad issued proceedings on 11.07.2018 to cancel the alleged irregular appointment given to petitioner on compassionate ::4::
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cc_3232_2018 grounds immediately after informing facts to the District Collector, Nalgonda.
11. Thereafter, the petitioner was given a notice on 27.07.2018 asking her to submit her objections within (7) days.
12. She submitted a report thereto on 03.08.2018 reiterating that she was married to one L. Srinivas Reddy, that he had deserted her and she was living with her parents and was wholly dependent on them. She also referred to G.O.Ms.No.350 General Administration (SER.A) Department dt.30.07.1999 whereunder a married daughter could be considered for compassionate appointment if she was dependent on the deceased government employee and satisfied all other conditions and instructions issued from time to time. She also stated that there was an agreement made in the presence of elders because of which she was staying separately by being dependent wholly on the parents. She also sought a regular enquiry to prove her case under Rule 21 of the C.C.S. (CCA) Rules, 1991.
13. However, on the ground that petitioner failed to produce valid documents in support of her defence and her reply was not satisfactory, the Dy. Director, District Treasury, who was the appointing authority, passed the impugned order in Memo No.A1/2081/2018 dt.14.08.2018 canceling petitioner's appointment as Junior Accountant made on 02.09.2016.
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14. Assailing the same, the petitioner filed Writ Petition No.38599 of 2018.
I.A.No.1 of 2018 in W.P.No.38599 of 2018
15. The petitioner had also filed Interlocutory Application No.1 of 2018 in Writ Petition No.38599 of 2018 seeking suspension of the said impugned order passed on 14.08.2018.
16. On 26.10.2018, in Interlocutory Application No.1 of 2018 in Writ Petition No.38599 of 2018, interim suspension as prayed for was granted holding that prima facie the finding in the impugned order that she must establish that she and her husband are not living together, is perverse.
I.A.No.2 of 2018 in I.A.No.1 of 2018 in W.P.No.38599 of 2018
17. Interlocutory Application No.2 of 2018 in I.A.No.1 of 2018 in W.P.No.38599 of 2018 was filed by respondents to vacate the order dt.26.10.2018 passed in Interlocutory Application No.1 of 2018 in Writ Petition No.38599 of 2018.
C.C.No.3232 of 2018
18. Since the petitioner was not re-instated into service in spite of the interim order granted on 26.10.2018 in I.A.No.1 of 2018 in Writ Petition No.38599 of 2018, petitioner filed Contempt Case No.3232 of 2018 alleging willful disobedience of the said interim order.
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19. Heard the counsel for petitioner Sri K. Rammurthy, and the learned Government Pleader for Services-I in the Writ Petition / applicants in I.A.No.2 of 2018 in I.A.No.1 of 2018 in Writ Petition No.38599 of 2018.
20. The counsel for petitioner contended that though the petitioner was undoubtedly married to L. Srinivas Reddy, she was not living with him, and that she had furnished an affidavit at the time of her appointment asserting to the said fact mentioning that there was an agreement in the presence of elders that petitioner and her husband would stay separately; merely because her husband had given her name as a nominee on 15.02.2017 in his Service Record, it does not alter the fact that she is not living with him; that the 3rd respondent while passing the impugned order had no evidence (other than mentioning of her name as her husband's nominee in service record) to show that she and her husband were living together. It was also pointed out that as per G.O.Ms.No.350 dt.30.07.1999, a married daughter is eligible for 'compassionate appointment' if she is dependent on the deceased Government employee, and she cannot be said to be not dependent on her father when her husband had deserted her.
21. In the counter-affidavit filed by respondents, it was contended that G.O.Ms.No.350 dt.30.07.2019 no doubt entitles a married daughter for compassionate appointment if she is dependent on the deceased Government employee. But, it was stated that there is a ::7::
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cc_3232_2018 subsequent Memo dt.20.03.2004 wherein it is stated that in respect of daughter of deceased Government employee, if she is married, she cannot be treated as dependent on her father or mother, even if she is unemployed or her husband is unemployed.
22. In my opinion, this Government Memo cannot come to the aid of respondents because the said Memo did not deal with a situation where a married daughter is deserted by her husband and is dependent on her father. It only deals with the situation of a married daughter who is living with her husband who is unemployed.
23. The leaned Government Pleader then contended that petitioner should produce a Divorce Decree to show that she and her husband were living separately, but the said counsel could not produce any Government Order which mandates such a requirement to prove that spouses were not living separately.
24. It cannot be denied that even if there is no divorce between parties, if the relationship between the spouses is strained, they would not be living together.
25. When there is no requirement of any provision of Law including G.O. which mandates that petitioner should have been legally divorced by her husband, and in the impugned order there is no reference to any such requirement at all, such a requirement cannot be insisted upon by way of counter-affidavit by respondents to come to a conclusion that she is living separately from her husband.
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cc_3232_2018 Therefore, this contention raised by the learned Government Pleader for Services-I is rejected.
26. It is settled law that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise [See Mohinder Singh Gill vs. Chief Election Commissioner1 and Commissioner of Police, Bombay vs. Gordhandas Bhanji2]
27. This legal position is not disputed by the learned Government Pleader and so he cannot seek to support the impugned order by adding a new reason of requirement of a divorce decree to prove that petitioner and her husband were living separately.
28. In the instant case, the petitioner has alleged that her husband had deserted her and no material is referred to in the impugned order by 3rd respondent to show that she and her husband were living together and she was not dependent on her father. No affidavits of any third party, who has seen them living together, are filed before the Dy. Director, District Treasury for him to draw any inference that petitioner was living with her husband and was not dependent on her father.
29. In my opinion, the burden is on the respondents to prove that petitioner is living with her husband. It is not for the petitioner to 1 (1978) 1 S.C.C. 405 2 AIR 1952 S.C. 16 ::9::
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cc_3232_2018 prove that she is not living with her husband. The impugned order wrongly places burden on the petitioner and cancels her appointment on compassionate grounds by stating that "she did not produce valid documents in support of her defence" and is perverse.
30. Whatever nomination petitioner's husband had given cannot be put against petitioner, and a conclusion cannot be drawn that petitioner had suppressed the fact of her marriage and that she was living with her husband and was not deserted by him.
31. More importantly, when a major penalty of removal from service under rule 9 of the T.S Civil Services (Classification, Control and Appeal) Rules is being imposed on petitioner by canceling the appointment of petitioner on compassionate grounds, it was incumbent on respondents to follow the procedure under Rule 20 and 21 of the said Rules and conduct a detailed disciplinary enquiry and take action. They cannot remove her from service through a discreet enquiry by merely taking her explanation.
32. In this view of the matter, the Writ Petition is allowed; the impugned Memo No.A1/2081/2018 dt.14.08.2018 issued by 3rd respondent is set aside; it is declared that petitioner had been rightly given appointment as Junior Accountant on 'compassionate grounds' by respondents as the sole legal heir of her Late father J. Padma Reddy as she was dependent on him having been deserted by her husband L. Srinivas Reddy; the respondents are directed to reinstate ::10::
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cc_3232_2018 petitioner into service within four (04) weeks from the date of receipt of copy of the order with all consequential benefits including continuity of service and arrears of salary from the date of passing of impugned order till the date of her reinstatement.
33. Accordingly, the Writ Petition is allowed as above. As a sequence, I.A.No.2 of 2018 in I.A.No.1 of 2018 in Writ Petition No.38599 of 2018 is dismissed. No order as to costs. C.C.No.3232 of 2018
34. In view of the orders passed in Writ Petition No.38599 of 2018 allowing it, I am not inclined to punish respondents for contempt for not implementing the order dt.26.10.2018 passed in I.A.No.1 of 2018 in Writ Petition No.38599 of 2018.
35. Therefore, the C.C.No.3232 of 2018 in I.A.No.1 of 2018 in Writ Petition No.38599 of 2018 is closed. No order as to costs.
36. As a sequel, miscellaneous petitions pending if any in the Writ Petition and in Contempt Case, shall stand closed.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 05 01.2021 Ndr