IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 7893 of 2001 Between: Burada Kanaka Ratnam, Roll No.A-16, W/o.Late Suryaprakasha Rao, R/o. C/o.Y.Satyanarayana, Door No.44-12-17, Annapurnamapeta, Rajahmundry, East Godavari District. ..... PETITIONER AND 1 The Senior Superintendent of Posts, Bhimavaram Division, Bhimavaram, West Godavari District-534 201. 2 The Post Master General, Vijayawada. 3 The Chief Post Master General, Hyderabad. 4 The Administrative Officer, Office of the Director, Postal Training Centre, Mysore, Karnataka-570 010. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records in O.A.No.1713 of 1998 on the file of Central Administrative Tribunal, Hyderabad and to Quash the order in O.A.No.1713 of 1998 and the Memo.No.TRG-1/2-1/151 at Mysore dt:19.11.1998 issued by the 4th respondent. Counsel for the Petitioner:MRS.NANDA R. RAO Counsel for the Respondents : MR.ARAJASHEKAR REDDY (SC FOR CG) The Court made the following : ORDER: (per P.S.Narayana.,J) Burada Kanaka Ratnam, the writ petitioner filed the present Writ Petition praying for issuance of a writ of certiorari calling for records in O.A.No.1713/98 on the file of Central Administrative Tribunal, Hyderabad, hereinafter in short referred to as “Tribunal” for the purpose of convenience, and quash the said order and the Memo No.TRG-1/2-1/151 at Mysore dated 19-11-1998 issued by the 4th respondent and to pass such other suitable orders. The petitioner claims to be a widow and it is stated that her name was sponsored by Employment Exchange, Eluru in connection with recruitment of Postal Assistants in Bhimavaram Postal Division for the year 1997 and subsequent thereto on 24-9-1998 she was interviewed in the office of the Superintendent of Posts, Bhimavaram Region, Bhimavaram and thereafter she was directed to undergo induction training for a period of two months at Postal Training Centre, Mysore for appointment as Postal Assistant by proceedings of Senior Superintendent of Post Offices, Bhimavaram Division dated 30-9-1998. After completing necessary formalities, the petitioner reported for training at the Postal Training Centre, Mysore. While she was undergoing training, the 4th respondent discharged her from Session with effect from 19-11-1998 Forenoon by Memo No.TRG- 1/2/1-151 dated 19-11-1998 as per the Telegraphic Information received from the 1st respondent on 18-11-1998 and further directed to report to the 1st respondent. It was further stated that in the affidavit filed in support of the Writ Petition that the 1st respondent directed the writ petitioner to credit the amount of Rs.1742/- which was paid to her towards stipend for the period from 5-10-1998 to 31-10-1998 in connection with the aforesaid Training. On 8-12-1998 once again the 1st respondent directed the writ petitioner to credit the amount and when the writ petitioner approached the 1st respondent personally, the 1st respondent stated that she had illicit contact with one K.Satyanarayana, R.T.C. Conductor, Eluru, West Godavari District and if the same is not made she would be arrested in a case to be filed against her and the writ petitioner also was orally informed that she was no longer in service in Postal Department. It was further pleaded that discharge was made without giving notice and the same is illegal and in violation of principles of natural justice. It is further stated that the Tribunal by the order dated 16-12-1999 dismissed the O.A.No.1713/98 on the ground that the writ petitioner was remarried and hence she does not enjoy the status of the widow any longer. It was also specifically pleaded that the writ petitioner had not married the said K.Satyanarayana and even the said K.Satyanarayana had specifically stated so in his reply to the charge of remarriage and in fact he had removed her name from P.F. benefits and had placed the names of his two sons. Absolutely there is no evidence to show that the writ petitioner had remarried the said K.Satyanarayana and hence assailing the said order, the present writ of certiorari was filed by the writ petitioner. The respondents filed a counter affidavit in detail even before this Court taking the self-same stand which they had taken before the Tribunal. It was pleaded n para-3 of the counter affidavit that Smt.Burada Kanakaratnam, the writ petitioner herein, was sponsored by the Employment Exchange, Eluru for recruitment to the cadre of Postal Assistant for the year 1997 under O.B.C. category. The objective-type test was conducted on 30-5-1998 and the Type test and Interview were conducted on 24-9-1998. On the date of interview, the writ petitioner submitted the death certificate of her husband and also gave a letter declaring that her husband expired in 1976 and she was not remarried. In the D.P.C. held on 24-9-1998 the writ petitioner was selected as Postal Assistant under OBC category by allowing the age relaxation of ten years under widow category as sponsored by the Employment Exchange, Eluru and she was directed to Postal Training Centre, Mysore along with other candidates for Induction training commenced on 5-10-1998. It was further pleaded in para-4 of the counter affidavit that the death certificate submitted by the writ petitioner was sent to the Superintendent of Post Offices, Rajahmundry on 16-10-1998 for verification as it was issued by the Gram Panchayat, ‘G’ Kothapalli, East Godavari District and the Superintendent of Post Offices, Rajahmundry was also requested to cause enquiries in the village about her widow status. The O.B.C. certificate submitted by the writ petitioner was sent to Superintendent of Post Offices, Eluru for verification and report. It was also requested to verify the widow status of the writ petitioner at the address given by her. It was further stated that the Superintendent of Post Offices, Rajahmundry in his letter No.B3/3/Misc. dated 11-11-1998, which was received on 13-11- 1998, returned the death certificate duly verified. The Superintendent of Post Offices, Rajahmundry further informed that the writ petitioner re-married one R.T.C. Conductor after 12 years from the date of death of her first husband and she is having one daughter by her first husband and a son through the second husband. The writ petitioner was recalled from the Postal Training Centre, Mysore as she had given a false declaration on 24-9-1998 that she had not re-married after the death of her husband and since she got selection as a result of age relaxation of 10 years given under widow category. The date of birth of the writ petitioner is 19-4-1960 and the upper age limit for O.B.C. candidate is 28 years for selection to the post of Postal Assistant. At the time of sponsoring by the Employment Exchange, Eluru her age was 37 years. The Director, Postal Training Centre, Mysore was requested to discharge the petitioner from training with instructions to attend the office of the 1st respondent. The Postal Training Centre, Mysore discharged the writ petitioner on 19-11-1998 Forenoon and she attended the office of the 1st respondent on 23-11- 1998 accompanied by her father and gave a statement in the presence of her father Meesala Suryanarayana. In her statement, the writ petitioner stated that her husband B.Surya Prakasa Rao expired on 12-11-1976 at ‘G’ Kothapalli village in East Godavari District and she has been living with Sri Kancherlapalli Satyanarayana, R.T.C. Conductor, Eluru for the last ten years and she had a son through Kancherlapalli Satyanarayana, R.T.C. Conductor and his name is Kancherlapalli Siva Prasad and he is studying 5th class in Bahuguna Memorial Police School, Eluru and she also stated that her name had been recorded in the service records of Kancherlapalli Satyanarayana as nominee. It was also further pleaded in para-5 of the counter affidavit that in the light of the aforesaid facts, the writ petitioner was directed to credit the stipend paid to her for the month of October, 1998 during the training period but she had not so far credited the stipend amount. Meanwhile another report was received from the Superintendent of Post Offices, Eluru by Lr.No.B/Misc. dated 30-12-1998 informing that enquiries made with the A.P.S.R.T.C. authorities, Eluru revealed that Kancharla Satyanarayana, RTC conductor No.69805 s/o. Hanumantha Rao is working as Conductor in Eluru Depot and he had submitted a revised nomination for P.F. benefits on 1-12-1995 nominating the writ petitioner as wife to the extent of 50% and his two sons Srinivas and Vijay Kumar to the extent of 25% each which was accepted by the R.T.C. authorities on 13-12-1995. The Depot Manager, A.P.S.R.T.C., Eluru in his Lr.No.E/255(Genl)98-ELR dated 4-1-1999 informed that as per personal case and service register of Kancherlapalli Satyanarayana E.69805, Conductor of Eluru Depot, Smt.Kanaka Ratnam, the writ petitioner, is his wife. It was further pleaded in para-6 of the counter affidavit that the writ petitioner filed O.A.No.1713/98 on the file of Central Administrative Tribunal, Hyderabad seeking the relief of reinstatement as Postal Assistant Induction Trainee or in any suitable post. The Tribunal issued interim order with directions to send the applicant for the training for the next course to Postal Training Centre, Mysore by order dated 21-1-1999 and based on the interim orders of the Tribunal, the writ petitioner was again deputed for training with effect from 10-5-1999 by Memo No.B5/PAs/Trg/99 dated 3-5-1999. It was further pleaded in para-7 of the counter affidavit that the petitioner failed to secure the required marks in all the tests held and also in the final test held on 23-7-1999 and she was one of the five candidates who failed to secure the passing marks in the final test held on 25-6-1999. Her training was extended by 15 days and then a test was conducted on 9-7-1999 and in respect of the said test also she failed to secure the required marks. The writ petitioner was given two more chances to pass the qualifying test but she had not been able to get qualifying marks and therefore she could not be certified fit for appointment. The marks secured by the writ petitioner as furnished in the counter affidavit are as hereunder : ---------------------------------------------------------------------------------------- Date of Re-test Marks: Paper-I Marks : Paper-II ---------------------------------------------------------------------------------------- 9-7-1999 22 19 16-7-1999 24 32 23-7-1999 19 39 ---------------------------------------------------------------------------------------- It was stated in para-8 of the counter affidavit that in the meanwhile M.A.No.326/99 was filed by the Department in the Tribunal which was dismissed on 28-4-1999 and later the writ petitioner sent xerox copies of revised nominations of Kancharlapalli Satyanarayana, RTC conductor, Eluru issued on 12-4-1999 by deleting the name of the petitioner. It was further pleaded in para-9 of the counter affidavit that the Tribunal dismissed the O.A. on 16-12-1999 upholding the action of the 1st respondent and basing on the final orders of the Tribunal the name of the writ petitioner was deleted from the select list as the petitioner was not entitled for the age relaxation available to widow candidates since the writ petitioner got re-married after the death of her husband and she is no longer in widow status. It was further pleaded in para-10 of the counter affidavit that the writ petitioner was selected to the cadre of Postal Assistant under O.B.C. category by allowing age relaxation of ten years under widow category. The enquiries made by the Department revealed that the writ petitioner got re-married after the death of her husband and was no longer in widow status. As the petitioner claimed the benefit by giving false declaration, the Postal Training Centre, Mysore was asked to discharge the petitioner from the Training center as the widow status of the applicant was found bogus. In reply to para-4 of the affidavit of the writ petitioner, at para-11 of the counter affidavit of the respondents it was pleaded that the petitioner was directed to credit back the stipend paid to her during the training period as she was discharged from the Postal Training Centre. It was specifically pleaded that there is no truth in the allegation that the 1st respondent threatened the writ petitioner etc. In reply to para-5 of the affidavit of the writ petitioner, in para-12 of the counter affidavit it was pleaded that since the writ petitioner is not appointed as Postal Assistant on regular basis, there is no case for issuing a notice. As the petitioner had been living with an A.P.S.R.T.C. employee of the State Government since ten years and also had a son through him, the widow status of the writ petitioner was found to be questionable. It was further stated that the writ petitioner got selection as Postal Assistant by getting age relaxation under widow status and in the statement given by the writ petitioner on 23-11-1998 she stated that she has been living with K.Satyanarayana, R.T.C. Conductor, Eluru as nominee. The R.T.C. authorities also accepted the nomination given by Kancherlapalli Satyanarayana, R.T.C. Conductor. The statement given by the petitioner on 23-11-1998 and the revised nomination given by K.Satyanarayana, R.T.C. Conductor showing the name of the writ petitioner had proved that her widow status is not correct. The other allegations also had been denied in the counter affidavit. Smt.Nanda R.Rao, the learned Counsel representing the writ petitioner had taken this Court through the impugned order questioned in the O.A. and also the relevant portions of the order made in the O.A. which had been challenged by way of the present Writ Petition. The learned Counsel would contend that absolutely there is no proof of remarriage and unless there is clear proof of remarriage, the writ petitioner won’t cease to be a widow and her status as a widow continues. The learned Counsel also would maintain that no specific statutory provision or service rule or regulation had been shown that on the ground of unchastity or on the ground on which the writ petitioner had been disqualified the writ petitioner would cease to be a widow in the eye of law. The learned Counsel also would submit that the mere fact that the writ petitioner begot a child by living with the said K.Satyanarayana would not alter the status of the writ petitioner in any way as a widow and she continues to enjoy the status of the widow whatever may be the other legal rights of the illegitimate child under the relevant personal law. The learned Counsel also would ultimately conclude that the Courts of law are expected to enforce the provisions of law and unless the respondents are able to show any specific legal bar in this regard, the discharge is illegal and the same is in violation of principles of natural justice and hence the impugned order made by the Tribunal cannot be sustained. The learned Counsel also placed reliance on certain decisions in this regard. Per contra, the learned Senior Standing Counsel for Central Government would submit that this is a matter relating to service and it is not a case of any malafide action. The authorities made bona fide enquiries and on the material available on record, the respondents were satisfied that on a misrepresentation relating to her status as a widow, she got relaxation and made an attempt to enter the service. It was at that stage having detected the same the 4th respondent had communicated the order which had been questioned in the O.A. aforesaid. The Counsel also had pointed out to the relevant portion where a finding of fact had been recorded and the Counsel would point out that this is not a case where a finding had been recorded without any evidence and on the material available on record inasmuch as the authorities had arrived at the correct conclusion and on the aspect of remarriage a finding of fact on the basis of such evidence and also on inference had been made by the Tribunal and also in view of the limitations imposed on a writ Court while exercising writ jurisdiction and issuance of writ of certiorari in particular, the impugned order needs no disturbance at the hands of this Court. Heard both the Counsel. The facts already had been narrated supra and the same need not be repeated again. This Court by order dated 28-12-2004 directed the writ petitioner to produce educational certificate of the son of the petitioner and the same was not produced. The relevant portion of the order impugned in the O.A. dated 19-11-1998 reads as hereunder : “Smt.B.Kanakaratnam (Roll NO.A-16) PA Induction trainee, who has reported for training at this center on the forenoon of 5.10.98 is hereby discharged from the session with effect from 19.11.98 forenoon as per the telegraphic information received from the Sr.Supdt. of Pos, Bhimavaram on 18.11.1998. The candidate should immediately report to the Senior Supdt. of Pos, Bhimavaram”. Even before the Tribunal specific stand was taken by the Department relating to the remarriage of the writ petitioner with Sri K.Satyanarayana. Even in the rejoinder filed before the Tribunal, the Writ Petition had taken a specific stand that she had not remarried K.Satyanarayana even though she resided with him and got a child through him and in that event she cannot be considered as a legally wedded wife of Sri K.Satyanarayana and further K.Satyanarayana had withdrawn his nomination for P.F. benefits and the applicant also had been discharged from service and thus the applicant not only lost the employment but also the share from P.F. of K.Satyanarayana and she was put to disadvantage from all angles and hence she should be allowed to continue in service as Postal Assistant. The Tribunal had discussed the facts and also had taken into consideration the respective pleadings of the parties and had recorded a finding at para-6 as hereunder : “We have heard both the sides. The applicant was sent to PTC, Mysore along with other candidates for induction training for appointment as Postal Assistant. She was sent for training on 5-10-1998. On that day, it is evident from letter No.B/Misc. dated 30-12-1998 (Annexure-4 to the reply) that Sri K.Satyanarayana, RTC Conductor had nominated her even earlier from 1-12-1995 to receive his PF benefits stating that she is his wife. That letter is also accepted by the Depot Manager, Eluru Depot wherein it was stated that on verification of P.case and SR of Sri K.S.Narayana, E.69805 Conductor of Eluru Depot Smt.Kanaka Ratnam (applicant herein) is his wife. Hence the respondents had sufficient proof to come to the conclusion on 5-10-1998 that the applicant had re-married and she is not a widow. Hence the decision taken by the respondents that the age relaxation given to her is invalid as she was not a widow on the day of submitting her application and on the day of sponsoring her to Postal Training Centre.” It is needless to say that this is a finding of fact. What had been contended in elaboration by the learned Counsel for the writ petitioner is that there is no clear proof relating to remarriage of the writ petitioner and on the mere fact of the nomination made by Satyanarayana or on the mere fact that the writ petitioner begot a child while living with Satyanarayana, it cannot be said that the factum of remarriage had been established and hence the writ petitioner would not lose the status of a widow. In other words, the specific stand taken by the writ petitioner is that unless in service jurisprudence there is a specific statutory provision, rule or regulation relating to disqualification on the ground of unchastity or immoral life, this ground is not available and the discharge made without affording opportunity is definitely bad in law. This is a case involving legality, morality and equity. Morality and legality are two different concepts. Many a time they do coincide and quite often they won’t. Whether a widow would lose the status of a widow for being considered for the benefit of either reservation or relaxation falling under widows quota because of her unchaste life or begetting a child through another person without a remarriage is the question in controversy which had been argued in elaboration. Traditionalism, intolerance by the society, immorality or unchastity, according to the Counsel for the writ petitioner, cannot operate as a bar relating to enjoyment of the status of a widow unless the service rules, regulations, scheme or policy in such cases clearly specify such disqualification while conferring such benefits. It is no doubt true that Courts of Law are bound to enforce Law. Submissions at length were made relating to the burden of proof and the discharge of burden of proof relating to the factum of marriage and the validity of the marriage. In NARSIMHULU Vs. MANEMMA while dealing with Sections 4, 6 Proviso, Sections 24 to 26 and 28 of Hindu Succession Act, 1956 and right of inheritance vis-à-vis unchastity it was held : “Unchastity of a widow is not a bar to inherit her deceased husband’s estate. S.4 provides that any pre-existing law, which is inconsistent with the provisions of the Act, shall cease to have effect. Sections 24 to 26 prescribe disqualifications; and Section 28 removes disabilities. Under the Shastrik law preceding the Act, unchastity of a widow was a disqualification. But the legislature did not engraft the unchastity as a disqualification. Under Section 24 remarriage was provided as a disqualification but not unchastity. On the other hand, Section 28 engrafts a wide language ‘on any other ground whatsoever’ encompassing within its ambit any other ground which was a disqualification under the Shastrik law excepting those disqualifications expressly recognized. Articles 14 and 15 of the Constitution provide equality of every citizen regardless of sex and prohibits invidious discrimination, enables the legislature to make inroads into the pre-existing law. The legislature felt the need most acute to remove many a disability under which the Hindu women are reeling from in matters of inheritance, succession rights. It animated to remove all the disabilities except those prescribed under the Act, used the appropriate language in Section 4 and chose not to make unchastity a disqualification. On the other hand, Section 28, while enumerating removal of named disabilities, used in a wide language ‘on any ground whatsoever’ which engulfs in its ambit ‘unchastity too’. Youthful urge and satiety of biological need may lead to astray and its abhorrence to keep to family prestige or social cohesion may be understandable. But moral or righteous indignation to unchastity or ethical foundation or sentiments of the people ‘would not should not’ stand in the way to the statutory construction of the wide language ‘on any ground whatsoever’ and effect given. The doctrine of ejusdem generis cannot be applied while interpreting the term “on any ground whatsoever” and it must be construed broadly. The legislature intended to wipe out the pre-existing disqualification of unchastity as a bar to succeed to the deceased coparcener”. In YAMUNABAI Vs. ANANTRAO while dealing with the expression “wife” used in Section 125 Cr.P.C. and also Sections 5, 11, 12, 14, 16 of the Hindu Marriage Act, 1955, the Apex Court held at paras 3, 4, 5 and 6 as hereunder : “For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms :- “11. Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5”. Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged