Madras High Court
R.Alagar Samy vs The District Collector on 3 November, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/11/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.3799 of 2007
W.P.(MD)NO.6061 of 2009
and
W.P.(MD)NO.13384 of 2009
2513, 2558, 7579, 8165, and 8814 of 2010
and
M.P.(MD)Nos.1 and 2 of 2007, 1 and 1 of 2009,
2,2,2,1 and 2 of 2010
W.P.No.3799 of 2007 :
R.Alagar Samy
Secretary,
Sri Ambal Kala Nilayam Primary School,
Mughavoor, Rajapalayam,
Virudhunagar District. .. Petitioner
Vs.
1.The District Collector,
Virudhunagar District.
2.The Personal Assistant to
Collector of Virudhunagar,
Noon Meal Scheme,
Collector's office,
Virudhunagar.
3.The Commissioner/Block Development Officer,
Cheranmahadevi Panchayat Union,
Rajapalayam.
4.S.Seetha .. Respondents
W.P.(MD)No.6061 of 2009 :
R.E.M.S.Mohammed Kassim,
The Correspondent,
Kassimia Dawood Middle School,
Rajagiri-614 207
Thanjavur District. .. Petitioner
Vs.
1.The District Collector,
Thajavur District.
2.The Personal Assistant to Collector
of Thanjavur,
Noon Meal Scheme, Collector's office,
Thanjavur.
3.The Commissioner/Block Development Officer,
Panchayat Union, Papanasam Block,
Thanjavur District.
4.K.Vennila .. Respondents
W.P.(MD)No.13384 of 2009 :
M.Periyasamy,
Secretary,
Sri Ambal Kala Nilayam Primary School,
Mughavoor, Rajapalayam,
Virudhunagar District-626 111. .. Petitioner
Vs.
1.The District Collector,
Virudhunagar District.
2.The Personal Assistant to Collector of Virudhunagar,
Noon Meal Scheme, Collector's office,
Virudhunagar.
3.The Commissioner/Block Development Officer,
Cheranmahadevi Panchayat Union,
Rajapalayam. .. Respondents
W.P.(MD)No.2513 of 2010 :
P.T.Murugesan,
Secretary,
Marutha Muslim Aided Elementary School,
Pallapatti-639 207,
Aravakurichi Taluk,
Karur District. .. Petitioner
Vs.
1.The District Collector,
Karur District,
Karur.
2.The Personal Assistant to Collector of Karur,
Noon Meal Scheme,
District Collector's office,
Karur.
3.The Commissioner/Block Development Officer,
Aravakurichi, Karur District.
4.Mallika .. Respondents
W.P.(MD)No.2558 of 2010 :
C.Balu .. Petitioner
Vs.
1.The District Collector,
Tirunelveli District,
Tirunelveli.
2.The Personal Assistant to Collector of Tirunelveli,
Noon Meal Scheme,
District Collector's Office,
Tirunelveli.
3.The Commissioner/Block Development Officer,
Panchayat Union,
Vasudevanallur,
Tirunelveli District.
4.Guruvammal .. Respondents
W.P.(MD)No.7579 of 2010 :
The Secretary,
Thirumurugan Middle School
Palayam,
Vedasandur Taluk,
Dindigul District. .. Petitioner
Vs.
1.The District Collector,
Dindigul District,
Dindigul.
2.The Personal Assistant to Collector of Dindigul,
Noon meal Scheme,
District Collector office,
Dindigul.
3.The Commissioner of Panchayat Union
Gujiliamparai,
Dindigul District.
4.P.Nallammal .. Respondents
W.P.(MD)No.8165 of 2010 :
The Secretary,
T.D.T.A. Middle School,
Subbulapuram,
Sankaran koil Taluk, Tirunelveli. .. Petitioners
Vs.
1.The District Collector,
Tirunelveli District,
Tirunelveli.
2.The Personal Assistant to Collector,
Collector's office,
Tirunelveli.
3.The Commissioner,
Sankarankoil Panchayat Union,
Tirunelveli District.
4.Bhavana Subbulaxmi . . Respondents
W.P.(MD)No.8814 of 2010 :
The Secretary,
Hindu Middle School,
Paraipatti Village,
Karishathan Post,
Sankaran Koil Taluk,
Tirunelveli. .. Petitioner
Vs.
1.The District Collector,
Tirunelveli District,
Tirunelveli.
2.The Personal Assistant to Collector,
Collector's office,
Tirunelveli.
3.The Commissioner,
Kurivikulam Panchayat Union,
Tirunelveli District.
4.K.Vijaya .. Respondents
W.P.(MD)No.3799 of 2007 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the first
respondent in Na.Ka.R.3/7174/2006 dated 06.03.2007 appointing the fourth
respondent as Cook and quash the same and to direct the respondents 1 to 3 to
select and appoint only from the panel sponsored by the petitioner school.
W.P.(MD)No.6061 of 2009 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the first
respondent in Na.Ka.1259-2008, NMS-1, dated 30.6.2009 appointing the fourth
respondent as Noon meal organiser and quash the same and to direct the
respondents 1 to 3 to select and appoint Tmt.M.Mohana as noon meal organiser
sponsored by the petitioner school.
W.P.(MD)No.13384 of 2007 has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of certiorarified mandamus
to call for the entire records connected with the impugned order passed by the
second respondent in Na.Ka.No.R3/1485/09, dated 30.11.2009 and quash the same
and to direct the respondents to select and appoint any suitable persons for the
post of noon meal organiser from the list of candidates submitted by the
petitioner's school, dated 11.7.2007 as per G.O.Ms.No.294, Social Welfare and
Nutritious Meal Programme (NMP-I), Department, dated 21.10.1993.
W.P.(MD)No.2513 of 2010 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the first
respondent in Na.Ka.No.1001/2009 SA.U.THI.A1 dated 05.02.2010 appointing the
fourth respondent as noon meal organizer in the petitioner school as illegal and
quash the same and to direct the respondents 1 to 3 to select and appoint a noon
meal organizer from the candidates' list sponsored by the petitioner school.
W.P.(MD)No.2558 of 2010 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the first
respondent in Na.9/85165/2010, dated 04.02.2010 appointing the fourth
respondent as noon meal cook in the petitioner school as illegal and quash the
same and to direct the respondents 1 to 3 to select and appoint a noon meal cook
from the candidates' list which will be sponsored by the petitioner school.
W.P.(MD)No.7579 of 2010 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the third
respondent in Na.Ka.No.1418/2010/A6, dated 9.6.2010 appointing the fourth
respondent as noon meal cook in the petitioner school as illegal and quash the
same and to direct the respondents 1 to 3 to select and appoint a noon meal cook
from the candidates' list sponsored by the petitioner school.
W.P.(MD)No.8165 of 2010 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the third
respondent in A6/2782/2010 dated 28.6.2010 appointing the fourth respondent as
noon meal assistant in the petitioner school as illegal and quash the same and
to direct the respondents 1 to 3 to select and appoint a noon meal assistant
from the candidates' list sponsored by the petitioner school.
W.P.(MD)No.8814 of 2010 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the entire records connected with the impugned order passed by the second
respondent in Na.Ka.9/85165/2009, dated 24.6.2010 appointing the fourth
respondent as noon meal assistant in the petitioner school as illegal and quash
the same and to direct the respondents 1 to 3 to select and appoint a noon meal
assistant from the candidates list sponsored by the petitioner school.
!For Petitioners ... Mr.S.N.Ravichandran
Mr.K.K.Kannan
^For Respondents ... Mr.TS.Md.Mohideen, AGP for RR1 to 3
in W.P.(MD)Nos.3799 of 2007, 6061/2009,
13384/2009
for RR1 and 2 in W.P.(MD)Nos.2513,
2558, 7579 and 8814 of 2010
Mr.G.Karnan for R-4 in WP(MD).6061/2009
Mr.K.A.Thirumalaippan for R-3
in W.P.(MD)No.2513 of 2010
Mr.D.Gandhiraj for R-3 in
WP(MD).2558 and 8814 of 2010
Mr.K.Balasubramanian for R-3
in W.P.(MD)No.7579 of 2010
Mr.M.Govindan, Spl.G.P. for RR1 and 2
in W.P.(MD)No.8165 of 2010
Mr.R.Janakiramulu for R-3
in WP(MD)No.8165 of 2010
Mr.V.Kathirvelu for R-4
in WP(MD)No.8165 of 2010
- - - -
:COMMON ORDER
These writ petitions were filed by persons who are seeking employment under the Noon Meal Scheme coming under the department of Social Welfare and Noon Meal Programme organized by the State Government. In all these writ petitions, the petitioners were seeking employment for candidates recommended by them and in some cases the challenge is to the appointment of the contesting respondents who were appointed contrary to the choice of the school management (minority or non minority) in the various centres attached to the schools concerned. Except W.P.(MD)No.2558 of 2010, in all cases the School management are the petitioners in the writ petitions. Pending the writ petitions, in some cases, there were interim orders granted. But in most of the cases, the contesting respondents are functioning in the Centres. In some cases, the department had appointed the respondents by transfer from some other centres.
2.These writ petitions were grouped together and a reference was made to a division bench so as to decide the nature of employment in the Noon Meal Centres and Anganwadi Centres relating to the mode of appointment and the role of private school management in having a say in the matter of appointment as a constitutional right. The Registry was directed to place the entire batch, including the present writ petitions before the division bench.
3.When the matters were listed before the division bench headed by N.Paul Vasanthakumar, J., the division bench took up only W.P.(MD)No.8710 of 2009 filed by the Tamil Nadu Recognized Aided Private School Managers Association, represented by its State President and finally disposed of the same on 03.02.2011. Though the order of reference made by this court was running as many as 12 pages, the division bench made a one line reference to the reference order. Paragraph 7 of its order reads as follows:
"7.....As the Government has now issued the orders dated 06.07.2010 and 18.08.2010, the question raised by the learned Single Judge in the reference order dated 15.09.2010 need not be answered....."
4.Since the division bench did not make a reference to the order of reference made by this court, it is necessary to extract relevant paragraphs from the order of reference so as to understand the nature of dispute involved in these writ petitions and it reads as follows:
"5.It must be noted that the programme is organised by the Social Welfare Department. The programme is administered by the Ministry of Social Welfare and headed by the Principal Secretary to the Government. The school nutritious meal centres are administered by the Commissioner of Social Welfare. The Anganwadi centres are administered by the Commissioner, Integrated Child Development Scheme (ICDS). At the District level, it is administered by the Personal Assistant (NMP) to the District Collector. In the Anganwadi centres, it is administered by the Programme Officer, ICDS.
6.It was stated that the appointment noon meal workers and Anganwadi centres vest with the District Collector. The programme is not an educational programme. It is entirely run by the Government. The entire expenditure is borne by the Government. The private management running the school have no role to play. It is not covered by the provisions of the Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 and the 1974 Rules framed therein. The school management have no power to appoint a noon meal staff and they are not governed by the grant in aid code. It was also stated that the interview of selected candidates are approved by the committee, in which one member will be the concerned Correspondent/Headmaster of the School. Their role ends there itself and not beyond.
7.It was also stated that the Government Order in G.O.Ms.No.294, Social Welfare and Nutritious Meal Programme Department, dated 21.10.1993 gave the composition of committee. Before 2006, the power to fill up the post was vested with the Block level, whereas the Government had changed the policy from 2006 onwards. The Government is directly administering both noon meal programme and Anganwadi centres under ICDS. It was also stated that no power has been delegated to private school managements to select any candidate. The Government is mandated to follow communal roster. Hence no concurrence need be obtained from a private school. Reliance was placed upon the order made by this court in W.P.No.13732 of 1992, wherein this court has held that the Correspondents of the Aided Schools have no right to have a say in the administration of Nutritious Meal Programme. They are entirely run by the Government and the whole expenditure for the scheme is borne by the Government.
10.It must be noted that the post of noon meal organizer, Cook and Assistant Cook as well as Helpers in the Anganwadi centres are not created by any rule framed under Article 309 of the Constitution. It is not a constituted service. But, nevertheless since the Government took over to maintain the entire scheme and had created a separate Ministry for administering the scheme and bearing the entire cost of the scheme, including food provisions, utensils and overhead expenditures, it is none the less a "public employment". Any appointment to the post must be subjected on the touchstone of Articles 14 and 16 of the Constitution. Whatever may be the circumstances prevailing before, the Government has directly started implementing the scheme headed by a Secretary to the Government and the District Collector at the District level. Hence, the question of leaving the choice of selection to fill up the post cannot be left to the school management. It does not come within the purview of school and are not covered by the provisions of the Private Schools Act. The schools cannot have any say in the matter of feeding of the children.
12.Though the petitioner schools claim that they have choice of giving five names and out of which one can be selected by the District Collector, such an arrangement is not borne out by any constitutional guarantee. No promise can be held out by the State Government de hors the constitutional provisions. On the other hand, there is no guarantee that the school management will keep in mind social justice, which is the fabric of the Indian Constitution. The basic structure of the Constitution includes equal opportunity in public employment. The division bench merely relied on the clarificatory letter of the Government and stated that the letter had not been rescinded and that was the intention of the State Government to give such powers to school managements to recommend names. The decision was rendered without any written brief filed by the State Government. In the case of policy of this nature, the State Government must be heard in order to put forth its view. Even otherwise the court has to oversee the implementation of the constitutional mandate enshrined under Articles 14 and 16, the Scheme must satisfy that such private arrangements are kept out and such scheme is in tune with Articles 14 and 16."
This Court referred to the following decisions of the Supreme Court for the consideration of the division bench.
a)Punjab State Warehousing Corpn. v. Manmohan Singh reported in (2007) 9 SCC 337,
b)Punjab Water Supply & Sewerage Board v. Ranjodh Singh reported in (2007) 2 SCC 491,
c)Union of India v. Pushpa Rani reported in (2008) 9 SCC 242,
d)Dipitimayee Parida v. State of Orissa reported in (2008) 10 SCC 687,
e)State of W.B. v. Kaberi Khastagir reported in (2009) 3 SCC 68,
f)Raghavendra Rao v. State of Karnataka reported in (2009) 4 SCC 635,
g)Uttaranchal Jal Sansthan v. Laxmi Devi reported in (2009) 7 SCC 205.
5.The division bench on the other hand felt that the issues raised herein were covered by the earlier order of the division bench in a judgment in Aided Primary School, represented by its Secretary, Correspondent, Dindigul District and others Vs. District Collector, Dindigul District reported in (2008) 1 MLJ
726. In that case, the division bench only referred to the earlier history of appointment in the noon meal centres as can be seen from paragraphs 9 to 12 which reads as follows:
"9.......
As per G.O.Ms.No.918 dated 03.11.1989, a panel of five names would be prepared by the Correspondent of the School and sent to the District Collector for approval. The District Collector would select one of the names from the panel and give his approval for being appointed as Noon Meal Organiser of the Centre attached to the school and the Correspondent of the school concerned, on receipt of communication of such approval, would issue appointment order to such person. Subsequently by virtue of G.O.Ms.No.294 dated 21.10.1993, the procedure of getting a panel of five names from the Correspondent of the school to which the Nutritious Meal Centres was attached was kept in tact, but with a modification that the selection of one of the names from the panel was entrusted to a Committee consisting of the following persons:
(i)Personal Assistant (NMP) to the Collector - Chairman;
(ii)Correspondent/Headmaster of the concerned School - Member; and
(iii)Commissioner of the concerned Panchayat Union - Member.
The power of issuing appointment orders has also been taken away from the Correspondent/Headmaster of the school and the appointment order was directed to be issued in the name of the Personal Assistant (NMP) to the Collector. In G.O.Ms.No.206 dated 13.09.1996, further modification in the manner of issuing appointment orders was made. By such modification, the Personal Assistant (NMP) to the Collector, as Chairman of the selection committee, has been directed to submit the connected papers in full shape to the District Collector for his approval and the appointment orders have been directed to be issued in the name of the District Collector.
10.The learned counsel further submitted that in none of the G.Os. Issued subsequent to G.O.Ms.No.918 dated 03.11.1989, the procedure of getting a panel of five names from the Aided Minority/Non-minority schools for being considered either by the Personal Assistant (NMP) to the Collector or by the subsequent committee has been dispensed with and that the only change made by those G.Os. was in respect of the prescription of the authority to select the candidate for appointment and the authority in whose name the appointment order should be issued.
11.In support of the contention raised on behalf of the appellant and the writ petitioners, the learned counsel relied on the unreported judgment of Justice K.P.Sivasubramaniam in "Packiyathai Middle School, Chinthamani, Puliyangudi, Tirunelveli District vs. The District Collector, Tirunelveli District, Tirunelveli and 2 others" (W.P.No.17473 of 1997), wherein it was held that the Personal Assistant to Collector or Collector could not make any appointment without getting a panel of five names as per Sub-clauses (a) to (c) of paragraph 7(f) of G.O.Ms.No.918 dated 03.11.1989. The learned Single Judge, while referring to the above said observation made in the earlier judgment, has observed that the change in the procedure of appointment of Noon Meal Organisers brought about by virtue of G.O.Ms.294 dated 21.10.1993 constituting a selection committee could not have been brought to the notice of the Judge in the earlier case and hence dissented from the view expressed by Justice K.P.Sivasubramaniam. The relevant paragraph of the order of the learned Single Judge runs as follows:
"However, the material fact of existence of another G.O. in G.O.Ms.No.294, Social Welfare and Nutritious Meal Programme (NMP-I) Department, dated 21.10.1993, has not been brought to the notice of the learned Judge, while passing the order. In the said Government Order, the earlier G.O.Ms.No.918, dated 03.11.1989 has been modified by constituting a selection committee consisting of the Personal Assistant (NMP) to the Collector as Chairman, the Correspondent/Headmaster of the concerned school and the Commissioner of the concerned panchayat union as members. Hence reliance on clauses (a) to (c) of paragraph 7(f) of the G.O.Ms.No.918, dated 03.11.1989, cannot hold good now, and the prayer as sought for by the petitioner by placing reliance on the clauses of paragraph 7(f) of G.O.Ms.No.918, dated 03.11.1989, which has been subsequently modified, cannot be granted."
12.The learned counsel representing the appellant in W.A.No.125 of 2005/petitioner in W.P.No.2478 of 2007 and the petitioner in W.P.No.2401/2007 has drawn our attention to the Government letter No.21126/NMP2/2003 dated 25.03.2003. In the said Government letter, it has been clarified that the only modification made in the procedure for appointment of Noon Meal Organisers in the Centres attached to Minority/Non-Minority Aided Schools was the introduction of a selection committee in the place of Collector/Personal Assistant (NMP) to the Collector as the authority competent to make selection of the candidate for appointment; that the further modification made by G.O.Ms.No.206 dated 13.09.1996 was to the effect that the Chairman of the selection committee [Personal Assistant (NMP) to the Collector] should submit the connected papers regarding selection of candidates made by the committee, in full shape to the District Collector for his approval and the appointment orders are required to be issued in the name of the Collector and that the said G.O. did not get rid of the requirement of getting a panel of five names from the Correspondent of the school concerned as envisaged in Sub-Clauses (a) to (c) of paragraph 7(f) of G.O.Ms.No.918 dated 03.11.1989. The relevant paragraph of the Government Letter is extracted here under, for the sake of convenience:
"Further there is no scope for difference of opinion between the Management of minority/non-minority aided schools and the appointing authority, since the management is supposed to sponsor a panel of five eligible candidates and one of the above candidates is appointed by the Collector."
6.After referring to the earlier history, the division bench placed its decision on the basis of a letter written by a Government's Secretary, dated 25.3.2003 referred to above. Therefore, the practice of the school management in which the centre was situated was to sponsor the names of five candidates eligible for appointment and the selection committee comprising of P.A (NMP) to the District Collector as its Chairman, the Correspondent/Headmaster of the concerned School and the Commissioner of the concerned Panchayat Union to be made as the selection authority was to select one name from out of the panel was made to continue. Therefore, the then division bench did not answer the core question regarding the change of the scheme of administration of the noon meal scheme and the constitutional impact of Articles 14 and 16 on allowing the earlier appointment procedures.
7.The present division bench which heard the writ petition in W.P.(MD)No.8710 of 2009 only referred to the earlier division bench judgment in (2008) 1 MLJ 726 cited above.
8.Even before the matter came up for final hearing before the Division Bench, this court had an occasion to consider the scope of employment under the noon meal scheme and also whether the employment under the noon meal scheme as well as anganwadi scheme were bound to follow the communal roster pursuant to the Tamil Nadu Act 45 of 1984 in D.Pothumallee and others Vs. District Collector, Collectorate, Thiruvarur District and others reported in (2010) 5 MLJ
46. In that case, this court exhaustively dealt with the nature of employment. In paragraphs 8.5 and 9.1, it was held as follows:
"8.5.It is surprising to note that the State is taking umbrage under the judgment of the Supreme Court in State of Karnataka Vs. Ameerbi case, but not referring to the subsequent judgments in Dipitimayee Parida Vs. State of Orissa and State of W.B. Vs. Kaberi Khastagir's case (cited supra) as well as the interim order passed by the Supreme Court in PUCL's case. It also ignores the scheme of appointment formulated in this State which is vastly different from the State of Karnataka.
XI.Relief Granted:
9.1.In the light of the above, this court has no hesitation to reject the stand taken by the respondent State and by giving a positive direction to provide for Reservation in terms of Tamil Nadu Act 45/1994, and also in the light of the interim order dated 20.4.2004 passed by the Supreme Court in W.P.(C)No.196 of 2001 in People's Union for Civil Liberties, Rajasthan Vs. Union of India and to provide for reservation for SC/STs. Till such time they provide such rules of reservation, the State is forbidden to fill up such large number of posts (as many as 20000 posts) without due representation to SC/ST communities ignoring the Constitutional mandate. "
9.After this judgment, the State Government had issued a Government Order in G.O.Ms.No.142, Social Welfare and Noon Meal Programme Department, dated 6.7.2010. In that Government Order, the State Government had agreed that they should follow the rule of reservation for all employments under both the schemes. The order came into effect from 6.7.2010. The division bench faced with the stand of the State Government that it was a public employment and that appointments should be made strictly on the basis of the rules of reservation, yet on the basis of the earlier Government letter and on the basis of the earlier division bench judgment 2008 (1) MLJ 726 held that the school management must have a say in the matter of appointment. The division bench in its brief order (7 paragraphs), dated 3.2.2011 held in paragraphs 3 to 7 as follows:
"3....After the order was passed on 19.04.2010 in W.P.(MD).Nos.10748 of 2009, 3840 to 3842, 3950, 5116, 5117 and 6645 of 2010 by the learned Single Judge, the Government issued G.O.Ms.No.142, Social Welfare and Nutritious Meals Programme (NMP1) Department, dated 06.07.2010 and issued certain guidelines and the same is subsequently amended by issuing G.O.Ms.No.163, Social Welfare and Nutritious Meals Programme dated 18.8.2010. Thus, as on today, the said Government Orders dated 06.07.2010 and 16.08.2010 are in force.
4.The learned counsel appearing for the petitioner submitted that the appointments made in the Noon Meal Centres in minority and non minority schools may be ordered to be approved, in terms of the Judgment of the Division Bench of this Court in the case of Aided Primary School V. District Collector reported in 2008 (1) MLJ 726.
5.The learned Additional Advocate General submitted that now the appointments are to be made as per the present Government Orders.
6.The said submission made by the learned counsel for the petitioner is well founded. Admittedly, the Government Order issued in G.O.Ms.No.294, Social Welfare and Nutritious Meal Programme (NMP-1) Department, dated 21.10.1993 and the clarifications issued were in operation, which was approved by the Division Bench in the Judgment cited supra.
7.In the light of the above submission made by the learned counsel on either side, this Writ Petition is disposed of with a direction to the respondents to approve the appointments of the Noon Meal Organizers already made in Noon Meal Centres in schools prior to the issuance of G.O.Ms.No.142, Social Welfare and Nutritious Meals Programme (NMP1) Department, dated 06.07.2010. It is made clear if any appointment is made on or after 06.07.2010, the said Government Order as amended subsequently by G.O.Ms.No.163, Social Welfare and Nutritious Meals Programme dated 18.08.2010 will govern. The petitioner or any person, aggrieved by the present Government Orders, is entitled to challenge the said Government Order in a manner known to law, if he is so aggrieved. As the Government has now issued the orders dated 06.07.2010 and 18.08.2010, the question raised by the learned Single Judge in the reference order dated 15.09.2010 need not be answered. It is made clear that whenever the Government Orders are challenged, all the issues can be raised by the respondents and the same will be decided by this Court in accordance with law...." (Emphasis added)
10.After disposing of the writ petition in W.P.(MD)No.8710 of 2009, the division bench did not deal with the individual cases had directed the matters to be listed before the single bench. Accordingly, all these matters came to be listed before this court.
11.In these writ petitions, arguments were addressed by Mr.S.N.Ravichandran, learned counsel appearing for petitioners and Mr.TS.Md.Mohideen, learned Additional Government Pleader for the official respondents and the other counsels noted above appearing for various contesting respondents.
12.It is rather unfortunate that both the division benches did not go into the core constitutional issue relating to the nature of appointment and the constitutional scheme of appointment. While the first division bench in (2008) 1 MLJ 726 went by the letter written by the Secretary (not even a full Government Order) and continued the practice of the school management having a say in the matter of employment, though the scheme itself was conceived, funded and operated by the State Government under a Minister in-charge of the Portfolio, the second division bench found an easy way out by holding that the issue relating to the appointment was covered by G.O.Ms.No.142, Social Welfare and Noon Meal Programme Department, dated 6.7.2010 and the question raised by this court need not be answered by the bench. As can be seen it held that if appointments made before issuance of the Government Order, dated 6.7.2010 will continue to be based upon the earlier pattern of appointment as approved by the division bench in (2008) 1 MLJ 726. This approach leaves the entire matter in a state of flux. The very purpose of the need for a larger bench answering legal issues got frustrated.
13.In any event, apart from these two division bench judgments, there were also two other division bench judgments on this issue given during earlier periods. One in W.A.No.157 of 2009 in The District Collector, Tanjore District and others Vs. R.Sivaraman. In that case the division bench disposed of the matter by an order dated 29.09.2009 by setting aside the order passed by an another learned judge, who held that it was the management's right to make appointment. The question posed before that division bench was found in paragraph 2 of the order and it reads as follows:
"2.The only question that arises for consideration in this appeal is as to whether the respondent-school authority should have sent a panel of three names or five names for appointment as Noon Meal Organisers. Learned Special Government Pleader has drawn our attention to the relevant G.O of the State Government dated 21st October, 1993 which requires each minority as well as non minority schools to send a panel of five names to the Collector for appointment as Nutritious Meal Organizers. The respondent had, admittedly, sent three names and as the Government did not take any action, the respondent filed the writ petition."
(Emphasis added)
14.While answering the issue, the Division Bench went by the admission made by the Special Government Pleader which is found in paras 4 and 5 which reads as follows:
"4.Learned Special Government Pleader did not dispute the right of the school authorities that some body from their panel alone should be selected. But he submits that the panel has to be of five names so that there is wide choice available to the State Government. Since he has shown a G.O in that behalf, Ms.Krishnaveni, learned counsel appearing for the respondent does not dispute that proposition. She, however, submits that the school authorities are agreeable to send five names. She states that the names will be sent within four weeks and in the event, the names are sent, the authorities of the Collector will take further action within four weeks thereafter to select one of those five persons as Noon Meal Organiser.
5.In the circumstances, nothing further requires to be passed in this order. The order passed by the learned single Judge is substituted by this order." (Emphasis added) Therefore, no legal issue was decided.
15.The second division bench judgment was in W.A.Nos.1022 and 1023 of 2010 in J.latha and another Vs. G.Jayasudha and others, wherein the Principal Bench of this court had disposed of the same on 16.7.2010 (since reported in 2010 Writ L.R. 737). In that case, in paragraph 17, the division bench had observed as follows:
"17.......Acceptance of the abovesaid contention would amount to taking away the discretion of the District Collector/Appointing Authority in appointing a suitable candidate. Being the head of District administration, the appointing authority should have a leverage in exercising discretion in selecting the suitable candidate. Mere use of the expression "final approval of the District Collector" in G.O.Ms.No.918 BCWNP & SWD dated 03.11.1989 does not mean that grant of approval by the District Collector is automatic. It is pertinent to note that Selection Committee not merely sends name of one candidate whose name has been recommended; but the entire panel of the candidates with necessary details and remarks of the Selection Committee are sent to the 2nd Respondent- District Collector to enable the 2nd Respondent-District Collector to apply the mind in granting the approval and by selecting the suitable candidate. Even though, the expression is used "..... final approval of the District Collector.....", in our considered view, the recommendation of the Selection Committee is only recommendatory in nature and the District Collector is not obligated to affix his seal of approval to all recommendations. However when the 2nd Respondent-District Collector takes a different view, it is necessary for the 2nd Respondent-District Collector to record reasons. We do not find any such resonings recorded by the 2nd Respondent-District Collector for taking a different view."
(Emphasis added)
16.After finding fault with the District Collector's order not recording the reasons for disagreement, the division bench also took exception to the view taken by an another learned Judge who had issued a positive mandamus to appoint the person recommended by the school. Thus the matter was remitted back for fresh disposal. All these events only point out that if no clear reasons are laid down by courts, it will unnecessarily create confusion among the officials of the Government, leading to different interpretations and diverse orders, thus multiplying litigations before this court. It would also send wrong signals about lack of consistency in the judicial reasoning of court orders. Only to highlight this point the earlier litigations are referred to earlier. However it is unnecessary to go into the past issues since the division bench had remitted the mater for disposal by a single bench laying down two parameters for deciding these matters as extracted from the order. Once again it may be referred to here:
"7.....this Writ Petition is disposed of with a direction to the respondents to approve the appointments of the Noon Meal Organizers already made in Noon Meal Centres in schools prior to the issuance of G.O.Ms.No.142, Social Welfare and Nutritious Meals Programme (NMP1) Department, dated 06.07.2010. It is made clear if any appointment is made on or after 06.07.2010, the said Government Order as amended subsequently by G.O.Ms.No.163, Social Welfare and Nutritious Meals Programme dated 18.08.2010 will govern."
17.In most of the cases, the management had come up with the plea that their nominee should be appointed. There is no claim that they have sent five names. In some of the cases, the Correspondent of the School himself sat in the selection committee, but did not make objection to the name considered and approved. Since no appointments have been made in terms of the earlier G.O.Ms.No.294 which was pending approval by the State Government and any appointment made also became subject matter of the challenge before this court, the question of considering the first parameter of the order of the division bench does not arise. In fact if a panel was not sent as required under the G.O., then the question of the District Collector selecting any one of them will not arise as held in J.Latha's case (cited supra) (2010 WLR 737). Since the procedures contemplated were not followed by the school management, there is no obligation for the District Collector to approve any of the names at this point of time. As already noted by the latest division bench that with effect from 6.7.2010, the nature of appointment itself is completely changed, the role of the school management is completely eclipsed. It is a public employment governed by Articles 14 and 16, where only by a public advertisement, names can be considered by an appointing authority.
18.Mr.S.N.Ravichandran, learned counsel appearing for petitioners contended that even if the school management did not succeed as they do not come within the ratio laid down by the division bench, the present contesting respondents working in the schools as they were not appointed in terms of the earlier order in G.O.Ms.No.294, it can be set aside and the authorities may be directed to fill up the posts in accordance with law.
19.This is an argument made in desperation. The court will never agree to pass ineffectual orders. If the case of the school management as projected now is implemented, then it will only result in a fresh advertisement of names, in which the school management will have no say as held by the division bench which had remanded the matter once again for consideration by this court in respect of each case. After 6.7.2010, if the selections are to be made only in accordance with G.O.Ms.No.142, then it is the prerogative of the State to appoint candidates in accordance with the guidelines and consistent with the principles of Articles 14 and 16. The contesting respondents were appointed only through such process even earlier. Therefore, it is unnecessary to disturb those candidates at this point of time merely because the school management want to cut the nose to spite the face. The writ court is not merely a court involved in legal interpretations, but its actions and orders must be made consistent with constitutional principles to render social justice. When the management cannot have any further say in the matter of appointment and the present appointments were made following proper appointment procedures, this court is not inclined to disturb those appointments. No rival candidates except in W.P.(MD)No.2558 of 2010 have questioned the appointments. Even in that case, the petitioner only wanted to approve the management's recommendation contrary to the procedures prescribed even under the earlier G.O.Ms.No.294. In such context, the concept of useless formality theory will apply.
20.In this context it is necessary to refer to a judgment of the Supreme Court in M.C. Mehta v. Union of India reported in (1999) 6 SCC 237. The following passages found in paragraph 17 may be usefully reproduced below:
"17......
The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law."
21.Further, the Supreme Court in Aligarh Muslim University v. Mansoor Ali Khan reported in (2000) 7 SCC 529 in paragraphs 21 to 24 referred M.C.Mehta's case and quoted it with approval which reads as follows:
"21.As pointed recently in M.C. Mehta v. Union of India1 there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P.2 it is not necessary to quash the order merely because of violation of principles of natural justice.
22.In M.C. Mehta1 it was pointed out that at one time, it was held in Ridge v. Baldwin3 that breach of principles of natural justice was in itself treated as prejudice and that no other "de facto" prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan4 Chinnappa Reddy, J. followed Ridge v. Baldwin3 and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23.Chinnappa Reddy, J. in S.L. Kapoor case4 laid down two exceptions (at SCC p.
395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
24.The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India5 Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para
31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma6. In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P.7 "
22.In view of the above discussion on broad facts, it is unnecessary to go into each of the factual issue in each case as no particular fact had been pointed out to take a different view in those cases.
23.Before concluding the matters, it was brought to the notice of this court by the learned Additional Government Pleader that the State Government had issued a Government Order in G.O.Ms..No.4, Social Welfare and Noon Meal Programme Department, dated 06.01.2011 reiterating the same issue. But when it came to appointment in a noon meal centre established in the aided minority school, it is now stated that the school management can continue sponsoring five names and that the District Collector shall appoint any one of them as a noon meal organizer. In respect of appointment of Cook and Cook Assistant, Personal Assistant (NMP) to the District Collector is the appointing authority and no rule of reservation can be followed. This is completely a volte-face of the earlier order issued by the Government in G.O.Ms.No.142, SW&NMP Department, dated 6.7.2010 which was issued pursuant to the directions issued by this court in D.Pothumallee's case (cited supra). Having held that it is the public employment, a different view cannot be taken if the centres are situated in minority school or non minority school. As long as the scheme is administered by the State Government with cent percent funding, supervisory staff appointed by them who are directly under the supervision of the District Collector and under the control of the Ministry of Social Welfare and Noon Meal Department, the Government cannot barter away such employments to any private school. In fact, in D.Pothumallee's case, this court in paragraph 8.1 to 8.3 dealt with the scope of reservation which reads as follows:
VIII.Reservation need of the hour:
8.1.It is needless to mention that such reservations will not only help empower the members of underprivileged sections of the Society to get economically empowered, but also it will bring social integration in the Civil society which is already fractured by communal and caste divisions. In the existing guidelines framed by the Government for filling up the post of workers under the Nutritious Meal scheme as well as Anganwadi workers, preference is given to residents of the village or to persons who are living with the same locality. In most of the cases, either schools or Anganwadi centres are located in the hamlets dominated by upper castes and applying preference as indicated in the guidelines, will clearly edge-out the members of scheduled caste from getting opportunity to work in such centres, since hardly there are any schools or Anganwadi centres situated in the Dalit colonies. That was why the Supreme Court also in the Right to Food case gave direction to States to make efforts that all Scheduled Caste and Scheduled Tribe colonies in the Country must have Anganwadi Centres. Such direction may take years to achieve. Social integration can be achieved by providing reservation for the underprivileged sections of the society in such employment. That is why, by its interim orders in the Right to Food case, the Supreme Court had directed giving preference in employment of dalits as Cooks, helpers in such centres as noted already.
8.2.Feeding of children by members of the Scheduled caste will go a long way in removing social disparities and practice of untouchability in different forms. Feeding of children belonged to different communities by a Dalit cook being resisted by the caste Hindus is another form of apartheid and it is not something new to this Country. Even during the Freedom struggle, controversies arose among the National leaders as noted above.
8.3.After bitter experiences, it was emphasised that by communal feasting and food being served to various groups by engaging cooks from underprivileged society will remove instantaneously some form of untouchability and will be a milestone in our march to an egalitarian society."
24.Even in the order of reference given by this court, this court dealt with the danger of giving power to any private authority whether minority or otherwise and as noted above in paragraph 11 had observed as follows :
"11.It is an autonomous scheme implemented by the State Government directly under the supervision of the State Government. In case of any public employment, the choice of consideration is equally available to every citizen subjected to qualification prescribed therein. If power is given to the school Correspondent, it will only result in creating extra power centre, i.e. an aspirant/applicant will have to approach the school and the Correspondent of the school who may belong to a dominant community or different religion will recommend his own choice thereby infringing the mandate of Articles 14 and 16 of the Constitution."
25.After the decision was accepted and implemented by G.O.No.142, the State has no power to delegate its essential constitutional power of employment to any private agency and cannot compromise the scheme of communal roster in such employments. First of all, the minority management do not have any say in a matter if children who are studying in the centres are fed by the State Government. The State Government do not require the consent of the management for feeding poor children under the noon meal scheme. Even the minority management is bound by the constitutional scheme of rendering social justice. They are bound to obey the laws of the land. It is only in case where the right of the management is taken away in the matter of appointment of their own teachers and non teaching staff, the question of exercising right under Article 30(1) will come into play. Even a minority management should follow the laws of the land as held by the Supreme Court in Christian Medical College Hospital Employees' Union v. C.M.C. Vellore Assn., reported in (1987) 4 SCC 691. The following passage found in paragraph 18 may be usefully extracted below:
"18......Due obedience to those laws would assist in the smooth working of the educational institutions and would facilitate proper administration of such educational institutions. If such laws are made inapplicable to minority educational institutions, there is very likelihood of such institutions being subjected to maladministration. Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment, unemployment, security of work and other conditions of workmen it cannot be said that the right guaranteed under Article 30(1) of the Constitution of India is violated. If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages as the case may be due to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit is Article 30(1) violated? Certainly not. Similarly the right guaranteed under Article 30(1) of the Constitution is not violated, if a minority school is ordered to be closed when an epidemic breaks out in the neighbourhood, if a minority school building is ordered to be pulled down when it is constructed contrary to town planning law or if a decree for possession is passed in favour of the true owner of the land when a school is built on a land which is not owned by the management of a minority school. In the same way if a dispute is raised by an employee against the management of a minority educational institution such dispute will have necessarily to be resolved by providing appropriate machinery for that purpose. Laws are now passed by all the civilised countries providing for such a machinery. ......"
26.Therefore, while dismissing all the writ petitions, a direction will issue to the State Government to withdraw G.O.Ms.No.4, Social Welfare and Noon Meal Programme Department, dated 6.1.2011 insofar as it had changed the appointment procedure of noon meal staff in the centres attached to minority schools. The State Government shall take a decision within eight weeks from the date of receipt of a copy of this order and bring employment in consistent with the constitutional scheme covered by G.O.Ms.No.142, Social Welfare and Noon Meal Programme Department, dated 6.7.2010 and in accordance with the judgment in D.Pothumallee's case (cited supra). Otherwise it would amount to contravening the judgment of this court which had become final.
27.With the above directions, all writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. A copy of this order will be marked to the Secretary to Government, Social Welfare and Noon Meal Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009 for appropriate action and compliance.
vvk To
1.The Secretary to Government, Social Welfare and Noon Meal Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009.
2.The District Collector, Virudhunagar District.
3.The Personal Assistant to Collector of Virudhunagar, Noon Meal Scheme, Collector's office, Virudhunagar.
4.The Commissioner/Block Development Officer, Cheranmahadevi Panchayat Union, Rajapalayam.
5.The District Collector, Thajavur District.
6.The Personal Assistant to Collector of Thanjavur, Noon Meal Scheme, Collector's office, Thanjavur.
7.The Commissioner/Block Development Officer, Panchayat Union, Papanasam Block, Thanjavur District.
8.The District Collector, Karur District, Karur.
9.The Personal Assistant to Collector of Karur, Noon Meal Scheme, District Collector's office, Karur.
10.The Commissioner/Block Development Officer, Aravakurichi, Karur District.
11.The District Collector, Tirunelveli District, Tirunelveli.
12.The Personal Assistant to Collector of Tirunelveli, Noon Meal Scheme, District Collector's Office, Tirunelveli.
13.The Commissioner/Block Development Officer, Panchayat Union, Vasudevanallur, Tirunelveli District.
14.The District Collector, Dindigul District, Dindigul.
15.The Personal Assistant to Collector of Dindigul, Noon meal Scheme, District Collector office, Dindigul.
16.The Commissioner of Panchayat Union Gujiliamparai, Dindigul District.
17.The Commissioner, Kurivikulam Panchayat Union, Tirunelveli District.
18.The Commissioner, Sankarankoil Panchayat Union, Tirunelveli District.