THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
WRIT APPEAL No.132 of 2021
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present writ appeal is arising out of the order
dated 05.01.2021 passed by the learned Single Judge in
W.P.No.38599 of 2018.
The facts of the case reveal that the respondent
before this Court is a married daughter of late Sri J.Padma Reddy who was working as Shroff/Sub- Treasurer, Thungathurthy, Nalgonda District. Late Sri J.Padma Reddy expired on 30.08.2015 leaving behind his wife and after the death of the deceased Government servant, the widow along with the respondent herein, who is certainly the daughter of the deceased, submitted an application for grant of compassionate appointment . The application was processed and finally an appointment order was issued on 02.09.2016. It is nobody's case that the respondent has suppressed the factum of desertion by her husband while submitting the application for grant of compassionate appointment. In the representation which was submitted by her mother, it was categorically mentioned that the daughter has been 2 deserted by her husband and she was staying with the deceased Government servant and in those circumstances, with open eyes, the State Government considered her application and granted her appointment. While she was working as a Junior Accountant, a complaint was submitted by one V. Ramesh stating that the respondent is a married daughter and her husband is a Teacher and therefore, as a married daughter has been granted compassionate appointment, the same deserves to be set aside. A notice was issued on 27.07.2018 and thereafter, an order was passed, after receiving the reply of the respondent, on 14.08.2018 cancelling her appointment. The respondent, while submitting the reply to the show cause notice, stated that she is only dependant upon her parents, she is a deserted lady and in spite of the aforesaid, her appointment was put to an end.
The learned Single Judge has allowed the writ petition and the relevant portion of the order passed by the learned Single Judge reads as under:-
"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 3 respondents to come to a conclusion that she is living separately from her husband. 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 Commissioner ((1978) 1 SCC 405) and Commissioner of Police, Bombay vs. Gordhandas Bhanji (AIR 1952 SC 16)].
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 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 4 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 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."
5
The respondent's services were put to an end by inflicting a major penalty. The Telangana State Civil Services (Classification, Control and Appeal) Rules provides for imposition of major punishment only after following the procedure prescribed under Rules 20 and 21 of the said Rules. Merely by giving a show cause notice and after receiving a reply, the employer inflicted the capital punishment upon the respondent and therefore, the learned Single Judge was justified in setting aside the order of cancellation of appointment, which was based upon some discreet enquiry.
The other important aspect of the case is that the Government Order dated 30.07.1999, which is on record, certainly provides for grant of compassionate appointment to a deserted daughter. In the Government Order, there is no requirement for a daughter to submit a divorce decree. It is nobody's case that the respondent has suppressed the factum of desertion by her husband while submitting the application for grant of compassionate appointment. Otherwise also, this Court fails to understand the logic for discriminating the married daughter and married son.
In the considered opinion of this Court, as the respondent was a deserted daughter of the deceased 6 Government servant and it was disclosed by her at the time of grant of compassionate appointment, the learned Single Judge has rightly allowed the writ petition. It is also noteworthy to mention that a divorce petition is also pending between the respondent and her husband and the aforesaid has not been controverted by the State Government and therefore, for all purposes, she is and she was a deserted lady and has rightly been granted appointment. This Court does not find reason to interfere with the order passed by the learned Single Judge.
The writ appeal is accordingly dismissed. The miscellaneous applications pending in this writ appeal, if any, shall stand closed. There shall be no order as to costs.
___________________________ SATISH CHANDRA SHARMA, CJ ___________________________ A.RAJASHEKER REDDY, J 30.11.2021 vs