Madras High Court
M. Muthulakshmi vs The Secretary To The Government Of on 1 October, 2012
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01/10/2012
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
W.P.(MD) Nos.4451 of 2012
10704, 10412, 10413, 7916, 4817, 11646, 11172, 10420,
11086, 11306, 11668, 11669, 11670, 8557, 9952, 9049, 11024, 11518, 8325, 9100,
11565, 8837, 8838, 8108, 8808, 11297, 11461, 8859 and 12727 of 2012
and
Connected Miscellaneous Petitions
W.P.(MD)No.4451 of 2012
M. Muthulakshmi,
W/o. Marrieswaran,
2/79/119, Pappaiyapuram,
Peraiyur (Taluk),
Madurai District. ....... Petitioner
Vs
1. The Secretary to the Government of
Tamil Nadu Social Welfare and
Nutrition Meals Department,
Secretariat, Chennai.
2. The District Collector,
Madurai District,
Madurai - 625 020.
3. The District Project Officer,
Madurai District.
4. The Project Officer,
Child Development,
T. Kallupatty,
Madurai District.
5. Chitra,
W/o. Somasundaram,
Papaiyapuram,
Peraiyur (Taluk),
Madurai District. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records and appointment order issued by the fourth respondent in favour of the
fifth respondent in pertaining to the proceedings in Na.Ka.No.168/A/2009 dated
16.09.2010 and quash the same and consequently direct the fourth respondent to
appoint the petitioner as a child nutrition worker (Anganwadi Paniyalar) at
Pappaiyapuram Village, Peraiyur Taluk, Madurai District according to the Rules
as this Hon'ble Court may deem fit.
!For Petitioner ... Mr. A.G. Senthil Kumar
^For Respondents... Mr. A. Navaneethakrishnan
Advocate General Assisted by
Mr. M. Govindan
Special Government Pleader
- - - - - - - -
:COMMON ORDER
This Common Order shall dispose of W.P.(MD) Nos.4451,10704, 10412, 10413, 7916, 4817, 11646, 11172, 10420, 11086, 11306, 11668, 11669, 11670, 8557, 9952, 9049, 11024, 11518, 8325, 9100, 11565, 8837, 8838, 8108, 8808, 11297, 11461, 8859 and 12727 of 2012, as they all relate to the appointment of Anganwadi Worker and Noon Meal Nutrition Organiser and the question of law are raised in all these writ petitions are identical.
2. In W.P.(MD)Nos. 4451,10704, 10412, 7916, 4817, 11646, 11172, 10420, 11086, 11306, 11668 of 2012, the prayers made are issuance of a Writ, in the nature of Certiorari, to quash the appointment of the private respondents and direct the official respondents to appoint the petitioner as Nutrition Worker / Anganwadi Worker at a particular village.
3. The facts pleaded in W.P.(MD)No.4451 of 2012 reads as under:-
The Government of Tamil Nadu has proposed to appoint Child Nutrition Worker at every Taluk all over Tamil Nadu and in order to achieve this Object, the Department of Social Welfare and Nutrition Meals Scheme issued a Government Order G.O.Ms.No.142 dated 06.07.2010. By way of G.O.Ms.No.142 dated 06.07.2010, instructions have been issued to make appointment in the ratio 1:4 i.e., one reserved and 4 unreserved and further more, the appointing Authority is to adopt the communal rotation ratio of 1:4 and the rule of the allotment for women and disabled, simultaneously. The instructions further stipulate that as per G.O.Ms.No.241 Department of Public Servants and Reformation (K) dated 29.10.2007, 200 points communal rotation is fixed and in the allotment of O.Cs, 3.5% is allotted to the Backward Christians and the Backward Muslims. In G.O.Ms.No.20 Department of Public Servants and Reformation (K) dated 10.02.2008, it is provided that once the appointments are made, in addition to the ratio 1:4, the communal rotation has to be adapted simultaneously, and the first place is to be given to the reserved and the next 4 places to be given to the unreserved of the same cadre of the communities among the common competitors, Scheduled Caste, Backward Class (Backward Christians and Muslims), M.B.C and Seer Marabinar, Backward Christians, Backward Muslims and Scheduled Tribes. Again, by G.O.Ms.No.101 Department of Public Servants and Reformation (K) dated 30.05.2008, the 200 points roster is modified and 3.5% allotment was made for the B.C. Christians and Muslims. Again in G.O.Ms.No.374 Department of Public Servants and Reformation (K) Dated 11.09.2008, it is directed that ratio of 1:4 is to be followed to one reserved and four unreserved, thereby 3.5% allotment for the backward Christians was reversed. It also provides that elaborate orders were given vide G.O.Ms.No.10Department of Public Servants and Reformation (K) dated 09.02.2009 to adopt the method of appointment of one reserved and four unreserved in one community, during appointments made through employment exchanges. It also provides that now, as per the Tamil Nadu Law 4 /2009, 200 points roster is altered in the places of the tabled communities, serial numbers 2, 32, 66, 102, 132 and 166 are allotted to the "Arunthathiyar" community and the order is issued vide G.O.Ms.No.65 Department of Public Servants and Reformation (K) dated 27.05.2009.
4. It is submitted by the petitioner that Government of Tamil Nadu has framed the Rules and Reservation for appointment of every child nutrition work, providing that candidate should be a married woman aged between 20 and 35 years and they should be a resident of very same locality or panchayat and passed 10th standard and in case of more than one person having same qualification, among the candidates, the senior age and higher marks obtained in the S.S.L.C exam and other additional qualification will be preferred.
5. The petitioner submits that she was born on 24.05.1985 and permanent resident of Pappaiyapuram Village, Peraiyur Taluk, Madurai District and now aged 26 years and also belongs to backward community. The petitioner has passed S.S.L.C examination by getting 434 out of 500 marks and also passed in H.S.L.C. first group examination by getting 933 out of 1200 marks. She also possesses a Diploma in P.C. Professional as a additional qualification.
6. In the year 2010, as per G.O.Ms.No.142 dated 06.07.2010, the third respondent herein invited application for appointment of Child Nutrition Workers at Pappaiyapuram Village, Peraiyur Taluk, Madurai District. The Interview date was fixed on 23.09.2010, in which the petitioner attended and furnished necessary documents. It is the case of the petitioner that the fifth respondent was issued the appointment letter, even though the petitioner in better qualified and senior in age. It is the submission of the petitioner that as per the Rules, it was the petitioner, who was to be selected.
7. W.P.(MD)Nos.8557 and 9952 of 2012 have been filed by the petitioners for issuance of Writ, in the nature of Certiorari to list the vacancy list showing the positions at Anganwadi in different Villagers and to direct the respondents to restore the communal rotation.
8. The facts pleaded in W.P.(MD)No.8557 of 2012 reads as under:-
The petitioner is permanent resident of Paganathi Village, Mudhukulathur Taluk, Ramanathapuram District and passed 12th Standard. The petitioner belongs to Backward Community. She and her husband are agricultural coolies. It is submitted that the post in the village of the petitioner was shown as General Category, against which the petitioner applied and she was interviewed on 12.01.2011. The result of the interview was not declared and a fresh notice was issued on 04.06.2012. In that notice also, again the post of Anganwadi Worker at Paganathi was declared as General Category. Thereafter, another list was issued on 09.06.2012, declaring the post at Paganathi Anganwadi Worker as MBC / BC. It is the contention that this action of the respondents in changing the reservation for the village now and then is totally arbitrary and therefore, the prayer is to quash the reservation of MBC / BC to her village and for communal rotation.
9. In W.P.(MD)No.9049 of 2012, the petitioner prays for issuance of a Writ, in the nature of Certiorari to quash the select list published by the District Collector, Virudhunagar dated 27.06.2012 and direct the respondents to issue a fresh Notification to call for application for the post of Anganwadi and Nutritious Meal Workers through out Virudhunagar District.
10. The pleaded case of the petitioner is that the State of Tamil Nadu announced the recruitment of Nutritious Meals Organizer through a G.O.Ms.No.72 dated 30.04.2012. This G.O reads as the Hon'ble Chief Minister announced in State Assembly that 28,596 posts, which were vacant upto 31.07.2011 in the Nutritious Meal Centres functioning under Puratchi Thalaivar MGR Nutritious Meal Programme and Intergrated Child Development Services Scheme shall be filled up. The details for available vacancies were called for from the concerned Head of Departments and orders were issued by the Principal Secretary to the Government to fill up total vacancies (28,596) of Noon Meal Organizers / Cook / Cook Assistant / Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helper under order Puratchi Thalaivar MGR Scheme and Integrated Child Development Services by direct recruitment. It also stipulated details of district wise and cadre wise vacancies as under:-
Annexure - I G.O.(Ms)No.72 Social Welfare and Nutritious Meal Programme Dept dated 30.04.2012 S.No District Organiser Vacancy Position Total Cook Cook Assistant
1. Ariyalur 106 88 87 281
2. Coimbatore 68 166 71 305
3. Chennai 60 75 138 273
4. Cuddalore 148 115 285 548
5. Dindigul 147 154 306 607
6. Dharmapuri 145 182 176 503
7. Erode 150 309 244 703
8. Krishnagiri 232 243 339 814
9. Kanniyakumari 105 120 196 421
10. Kancheepuram 192 304 439 935
11. Karur 64 136 52 252
12. Madurai 141 274 173 588
13. The Nilgiris 40 103 82 225
14. Namakkal 133 161 149 443
15. Nagapattinam 102 124 200 426
16. Perambalur 36 38 47 121
17. Ramanathapuram 166 197 198 561
18. Sivagangai 171 102 380 653
19. Salem 97 232 231 560
20. Theni 80 74 117 271
21. Thanjavur 96 60 156 312
22. Tuticorin 99 76 161 336
23. Tirunelveli 229 158 215 602
24. Tiruppur 201 265 274 740
25. Thiruvannamalai 160 285 445 890
26. Tiruvarur 49 151 104 304
27. Thiruvallur 109 343 173 625
28. Tiruchirappalli 40 06 13 59
29. Vellore 292 315 286 893
30. Virudhunagar 244 312 266 822
31. Villupuram 247 297 439 983 4149 5465 6442 16056 Annexure - II G.O.(Ms)No.72 Social Welfare and Nutritious Meal Programme Dept dated 30.04.2012 S.No District Anganwadi Vacancy Position Anganwadi Worker Mini Anganwadi Anganwadi Worker Worker Helper
1. Coimbatore 120 0 97 217
2. Chennai 105 0 152 257
3. Cuddalore 121 16 306 443
4. Dindigul 165 0 116 281
5. Dharmapuri 87 51 96 234
6. Erode 86 0 94 180
7. Krishnagiri 207 0 198 405
8. Kanniyakumari 150 34 228 412
9. Kancheepuram 168 41 186 395
10. Karur 49 22 37 108
11. Madurai 172 6 138 316
12. The Nilgiris 32 1 51 84
13. Namakkal 167 15 228 410
14. Nagapattinam 57 6 55 118
15. Perambalur 54 30 94 178
16. Ramanathapuram 209 73 228 510
17. Sivagangai 252 40 262 554
18. Salem 121 0 181 302
19. Theni 102 0 48 150
20. Thanjavur 207 113 249 569
21. Tuticorin 145 7 120 272
22. Tirunelveli 194 0 140 334
23. Tiruppur 185 65 209 459
24. Thiruvannamalai 33 241 413 687
25. Tiruvarur 150 67 158 375
26. Thiruvallur 202 35 298 535
27. Tiruchirappalli 101 13 158 272
28. Vellore 590 37 749 1376
29. Virudhunagar 230 62 256 548
30. Villupuram 142 34 275 451 4603 1009 5820 11432 The petitioner applied for the post of Nutritious Meal Organizer and was called for interview on 16.06.2012, which was subsequently postponed to 24.06.2012. The petitioner possess B.A qualification and belongs to Hindu Reddy Ganjam Community, a Backward class. It is stated that the G.O.Ms.No.72 dated 30.04.2012 refers to the G.O.Ms.Nos.142, 163 and 4.
11. G.O.Ms.No.142 dated 06.07.2010 deals with reservation and mode of filing up on the posts by following reservation.
12. G.O.Ms.No.163 dated 18.09.2010 prescribes the age limit, educational qualification and the distance norms, which are reported in G.O.Ms.No.4 dated 06.01.2011.
13. The grievance of the petitioner is that distance norms was not followed in the selection and further more, the Government Orders were not followed in the selection process, as the selected candidates have the distance of 5 to 10 K.Ms away from the place of selection. It is also the case of the petitioner that thought she was called for the interview, no interview was held and selection was made in arbitrary manner. The petitioner has not challenged the appointment of the fourth respondent and prays for issuance of a writ to issue fresh Notification of selection.
14. In W.P.(MD)No.11024 of 2012, the petitioner prays for issuance of a Writ, in the nature of Certiorari to quash the order dated 25.07.2012, vide which the candidature of the petitioner has been rejected for not having prescribed educational qualification, below / above the prescribed age limit, not belonging to the category as per the communal roaster, applying for other Anganwadi Post, which has not been notified. The impugned order does not show as to which the condition the petitioner did not fulfill.
15. The petitioner submits that she is resident of Aachankulam Village and has passed higher secondary studies. It is stated that interview was to be held on 28.01.2011, which was postponed. But, when the petitioner, was told that her application was rejected on the ground of roster system, which according to the petitioner, was to adjust favorites.
16. In W.P.(MD)No.11518 of 2012, the petitioner prays for issuance of a Writ, in the nature of Certiorari to quash the order in Na.Ka.No.204/2012 dated 14.08.2012 and to direct the respondents to issue interview card to the petitioner.
17. By way of the impugned order, the application of the petitioner was rejected on the ground she did not enclose certificates regarding proof of marriage, residence and Income and also on the ground that she is possessing higher qualification than the one prescribed under the Rules.
18. The stand of the petitioner is that she possesses the requisite qualification and the reasons for rejection of her candidature are not sustainable.
19. W.P.(MD)Nos.8325, 9100 and 11565 of 2012 have been filed by the petitioners for issuance of Writ, in the nature of Mandamus, for grant of benefit of age relaxation for appointment to the post of Anganwadi Teacher under the category of Worker for the Anganwadi School.
20. The pleadings in W.P.(MD)No.8325 of 2012 are that the petitioner has studied upto higher secondary and belongs to Scheduled Caste Community. In pursuance to the announcement dated 25.02.2012, and office notice displayed on the Notice Board, the petitioner submitted application for Anganwadi Teacher. It is submitted that Scheduled Caste community candidate was to be selected for the post at Sanarpatti. The application to be submitted on 20.06.2012. The age limit prescribed was 35 years. The petitioner had completed 35 years and therefore, seeks a direction to the respondents to give age relaxation.
21. W.P.(MD)Nos.8325, 9100 and 11565 of 2012 are Prima facie, not maintainable, as it is not within the jurisdiction of this Court to legislate or lay down the Rule for appointment or age relaxation. It is prerogative of the State Government to consider the age relaxation for a category or for a particular category of candidates. This Court, in exercise of writ jurisdiction, cannot issue such a direction as prayed for.
22. The petitioners in W.P.(MD)Nos. 8837, 8838, 8108, 8808 of 2012 pray for issuance of a Writ, in the nature of Madnamus to direct the respondents to appointment the petitioners as Mini Anganwadi Workers.
23. The pleadings in W.P.(MD)No.8837 of 2012 are that the petitioner passed S.S.L.C and belongs to Scheduled Caste Community. In February 2010, applications were invited for the posts of Mini Anganwadi Workers for various Centres in Sivagangai District. The petitioner appeared for the interview on 19.02.2010. The respondents had selected the petitioner for Mini Anganwadi Worker, but failed to issue any appointment letter, though appointment letters have been issued to other selected candidates. It is the case of the petitioner that the respondents are under the legal obligation to appoint the petitioner as Mini Anganwadi Worker. The action of the respondents is therefore said to be arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India.
24. The petitioners in W.P.(MD)Nos. 8837, 8838, 8108, 8808 of 2012 have neither impleaded the selected candidates nor challenged the selection and claimed mere right of appointment on the allegation that the petitioners were selected and therefore, are entitled to appointment. This prayer is also not within the jurisdiction of this Court, as to appoint or not to appoint is the prerogative of the State Government. This Court can only interfere if there is allegation of arbitrary exercise of power or a person junior in merit is appointed by giving the person of higher mark. No such case is set up in W.P.(MD)Nos. 8837, 8838, 8108, 8808 of 2012.
25. In W.P.(MD)No.11297 of 2012, the petitioner prays for issuance of a Writ, in the nature of Prohibition, restraining the respondent from filling up the post of Anganwadi Assistant in the Anganwadi Centre at Perumbacheri in pursuance to an interview on 17.08.2012.
26. It is pleaded case of the petitioner that applications were invited for Anganwadi Assistant in June 2012. The petitioner applied for the post on 18.06.2012 with all relevant documents. It is the case of the petitioner that she was not called for interview, as the application filed by the petitioner was returned. It is the case of the petitioner that her application was returned to appoint the relative of the second respondent i.e., the Child Welfare Officer.
27. The remedy with the petitioner was to seek the right of consideration or in the alternative to challenge the order of appointment of the person without considering her name, and not prohibit or restrain the respondent from proceeding with the interview.
28. In W.P.(MD)No.11461 of 2012, the petitioner prays for issuance of a Writ, in the nature of Certiorari to declare the selection pertaining to the recruitment to the posts of Anganwadi Workers in Sivagangai District through recruitment process during August 2012 and the consequential appointments as illegal, null and void.
29. The petitioner was appointed as Anganwadi Worker in the year 2009 and she joined on 26.11.2009 at Ammapatti Mini Anganwadi Centre and till date, she is working as Anganwadi Worker.
30. It is submitted that in the year 2011, two persons were appointed as Anganwadi Worker at two main Anganwadi Centres and after disbursement of salary, it was noticed that the Anganwadi Workers working in main Anganwadi Centres are drawing higher salary. It is submitted that the Association of Anganwadi workers at Mini Centres filed representation to remove discrimination in pay scale of Anganwadi Worker and on representation, the second respondent stated that Anganwadi Workers at Mini Centres could be transferred to main Centres. The petitioner submits that thereafter G.O.Ms.No.72 dated 30.04.2012 was issued without considering the claim of transfer to main centre and therefore, the selection of process for vacancy is contrary to the assurance given to the petitioner. It is the contention of the learned counsel for the petitioner that in case this process is allowed to proceed, it will lead to discrimination as the persons recruited will get higher salary.
31. The prayer in W.P.(MD)No.8859 of 2012 is for issuance of a Writ of Mandamus, to direct the respondents to conduct the interview for the post of Nutrition Organiser in Irunchirai Government High School, Thiruchuli Taluk, Virudhunagar District.
32. It is the case of the petitioner that she belongs to economically backward family. She has completed B.A., History in the year 1998 and has got her name registered with employment exchange, which is regularly renewed. It is submitted that the petitioner has gone through the advertisement in the daily newspapers calling for an interview to the post of Nutrition Organiser stipulating therein a condition or residing within the limit of 10 K.M from Government High School, Irunchirai Government High School. The petitioner was called for an interview on 09.06.2012. But, the interview date was postponed. It was the submission of the petitioner that the next date of interview was on 23.06.2012, but communication was received only on 26.06.2012. Thus, it is prayed that the petitioner has been denied the right of consideration and therefore, she is entitled to be considered for appointment.
33. Counter Affidavits have been filed by the respondents in W.P.(MD)Nos. 8557, 9952 and 11172 of 2012.
34. In the Counter Affidavit, stand taken is that as per G.O.Ms.No.72 dated 30.04.2012, read with G.O.Ms.No.138 dated 23.05.2012, the vacancies of Anganwadi Workers are notified from all districts in the State of Tamil Nadu. In Ramanathapuram District, there are 216 posts of Anganwadi Workers and 66 posts of Mini Anganwadi Workers and 228 posts of Anganwadi helpers, which are to be filled up by direct recruitment by adopting the Rule of Reservation, as notified vide G.O.Ms.No.55 dated 08.04.2010 and also as per the eligibility criteria laid down in G.O.Ms.No.110 dated 14.05.2012. Vide G.O.Ms.No.110 dated 14.05.2012, revised instructions regarding the eligibility criteria for appointment as Anganwadi Workers, Mini Anganwadi Worker and Anganwadi Helper have been issued. It is also the case that announcements have been made in the daily newspaper inviting applications for various posts of Anganwadi Worker and was also published in the Website and on the Notice Board, and communal rotation was published on 31.05.2012. Whereas the revised list of all vacancies was published on 07.06.2012 in accordance with the guidelines regarding rule of reservation, communal rotation and for reservation roster of 200 point was considered for the District as a Unit and the same was followed from the revised roster including all the centre wise vacancies were published on 07.06.2012, calling upon eligible candidates to apply. Interview for the post was fixed on 07.08.2012.
35. The interview was conducted by the Committee consisting of District Programme Officer ICDS, Child Development Programme Officer, Mudukulathoor and Deputy Director of Health Services Ramanathapuram and the said Committee was headed by the District Collector, Ramanathapuram. According to the publication dated 31.05.2012, the ICDS centre at Paganthi Village, Mudukulathur was alloted as Backward Class category, which was revised on 07.06.2012, by following rule of reservation and the revised roster was published on 20.06.2012. It is the case of the respondent No.3 that vide G.O.Ms.No.110 dated 14.05.2012, detailed criteria for appointment of Anganwadi Worker have been published. It is the stand of the respondents that the guidelines laid down in G.O.Ms.No. 55 dated 08.04.2010 are legally valid. It is the case of the respondents that the selection process was completed on 07.08.2012 and candidates have joined the Centres on 16.08.2012.
36. Similar counter affidavits have been filed by other respondents.
37. The counter affidavit of the respondent itself shows that even after Notification, there have been necessary changes and it does not disclose as to whether application for all the posts were invited on due publication in the newspapers or other modes to allow all eligible persons to consider for appointment as Anganwadi Worker.
38. In view of the facts that number of Government Orders are issued from time to time laying the conditions for appointment, which are changed at the drop of the hat, the learned Advocate General was requested to assist the Court to consider whether the process of selection could be sustained in law?
39. Learned Advocate General placed on record the Government Orders issued from time to time and also produced the Scheme of the Government, being implemented for appointment of Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helpers.
40. The Guidelines issued by the Ministry of Human Resource Development (Department of School Education and Literacy) issued in September 2006, placed on record by the learned Advocate General, shows that Mid Day Meal in Schools has long history in India, which was started in 1925 for disadvantaged children in Madras Municipal Corporation. It was in the mid 1980s, three States viz., Gujarat, Kerala and Tamil Nadu and the U T of Pondicherry had universalized the cooked Mid Day Meal programme with their own resources for children studying in the primary stage. The Mid Day Meal was also provided to children in Tribal areas in some States like Madhya Pradesh and Orissa. In 1990
- 91, number of States increased to 12 viz., Goa, Gujarat, Kerala, Madhya Pradesh, Maharashtra, Meghalaya, Mizoram, Nagaland, Sikkim, Tamil Nadu, Tripura and Uttar Pradesh. In another three States viz., Karnataka, Orissa and West Bengal, the programme was being implemented with State resources in combination with international assistance. Whereas two states viz., Andhra Pradesh and Rajasthan were implementing the programme entirely with international assistance.
41. This programme was given a national recognition by Ministry of Human Resource Development. The State of Tamil Nadu therefore can take pride for being the first in country to think and implement a beneficial scheme of this nature and magnitude.
42. It was, in order to, implement programme that different State Governments have decided to appoint employees to carry out the scheme effectively.
43. Articles 309 and 162 of the Constitution of India reads as under:-
"309. Recruitment and conditions of service of persons serving the Union or a State:- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such servies and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.
162. Extent of Executive Power of State:- Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof".
44. The reading of these Articles of Constitution of India show that while making public appointments, it is open to the State Government either to frame statutory Rules under Article 309 of the Constitution of India, which should be in consonance with the provisions of the Constitution. It is also permissible to issue Government Instructions in exercise of powers under Article 162 of the Constitution of India.
45. The only restriction is that the instructions or Rules so framed should not be violative of the constitutional mandate, so as to deny the right of consideration to every eligible citizen.
46. The State of Tamil Nadu has issued Government Orders / Instructions from time to time. These Government Orders are not consolidated therefore, it leads to confusion with regard to appointment and process of selection.
47. It is therefore necessary to consider the different Government Orders issued from time to time, consider its effect in the process of selection for appointment.
48. As per the Government Orders placed on record by the learned Advocate General, the first instructions were issued vide G.O.Ms.No. 370 Backward Classes Welfare, Nutritious Meal Programme and Social Welfare Department dated 16.04.1989 which stipulated that the State of Tamil Nadu introduced the Scheme for supply of free Nutritious Noon Meal to the poor children covering the age group from 2 to 10 with effect from 01.07.1982. In order to implement this scheme, the Government sanctioned for each of the school centres one post of part time Cook and one Helper, to assist the cook, to be appointed from among the local residents. Each centre was ordered to be managed by the Child Welfare Organiser with two Child Welfare Assistants under the overall control of the Block Development Officer. However, vide G.O.Ms.No.277 Public (CMNMP) Department dated 22.02.1983, the Government sanctioned 33,831 posts of part time Nutritious Meal Organisers, one in each school feeding centre. The persons so appointed was only paid only honorarium.
49. Thereafter, vide G.O.Ms.No.1243 Public (CMNMP) Department dated 31.07.1984, the Government created 3360 temporary posts of Part time Nutritious Meal Organizers, cooks and Helpers for appointment in school feeding centres and extended the scheme to school children in the age group of 10 to 15 from 15.09.1984. These employees were not covered under any Service Rule, being only part time employees appointed on honorarium.
50. It was for this reason, G.O.Ms.No.370 dated 16.04.1989 was issued to give job security to the part time employees. A decision was taken to make the employees working under the Programme as Permanent Part-time employees of the respective local bodies and these employees became Permanent Part - time employees of respective local bodies i.e., Panchayat, Panchayat Union, Municipalities and Municipal Corporation, excluding the employees of Integrated Child Development Centre.
51. The State Government, thereafter issued G.O.Ms.No.918 Backward Classes Welfare, Nutritious Meal Programme and Social Welfare Department dated 03.11.1989 for laying down the selection process of the candidates for appointment of Organisers for Child Welfare Centres and Nutritious Meal Centre. Though this G.O., mentioned G.O.Ms.No.215 Backward Classes Welfare, Nutritious Meal Programme and Social Welfare Department dated 09.12.1988 and number of letters to regulate the appointment, but the copies of these have not been placed on record.
52. Vide G.O.Ms.No.918 dated 03.11.1989, a procedure was prescribed for selection of candidate for the post of Organisers under Tamil Nadu Government Nutritious Meal Programme with effect from 09.12.1988. It was stipulated that whenever a vacancy for the post of organizer in Nutrition Meal Centre arose in the Panchayat area, the Deputy Inspector of Schools was to intimate the vacancy to the Panchayat Union Commissioner, having jurisdiction of that area, who was to inform the Panchayat President within a week of availability of vacancy, who was to prepare the panel of not e less than 3 and not exceeding 6 per vacancy along with the Bio-data of individual and thereafter, get approval of Panchayat Board for appointment.
53. The appointments were to be made as per the procedure laid down under the Rules. The qualification prescribed was 10th Standard as one of the qualifications. The G.O., also provided regarding relaxation of age by adopting the age limit of 18 years in the Hill area and upto 20 years in backward and other areas, which was to continue in force. But, this age relaxation was to be adopted in case of persons in the age group 25 to 40 were not available.
54. Thereafter, vide G.O.Ms.No.837 Public (CMNMP) Department dated 24.05.1988 the Rule of Reservation in matter of appointment of Organisers with the cycle of rotation of communities were adopted. The Rules laid down vide the G.O., is that the appointment for the post of Noon Meal Organizers in Nutritious Meal Centres in all the School Centres in Panchayat Union areas was to be by the local people in the respective centre. It was stipulated that the vacancies of Noon Meal Organizers got to be advertised in local daily calling for application with reference to the qualification now prescribed by following the principle of communal rotation while making the appointment to the post. The applications after scrutiny were directed to be submitted to the District Collector for approval and the Collector was made the appointing Authority, but no Selection Committee was constituted. The provision was also made with regard to Corporation Schools where it was stipulated that application from a candidate will be invited in dailies and appointment made after selection through selection committee and in case Noon Meal Organiser in the Muncipal School, the appoitment was to be made by G.O. through advertisement through a committee. In case of appointment of noon meal organiser in minority / non minority aided school, different procedure was laid down.
55. The State of Tamil Nadu, thereafter issued G.O.Ms.No.125 Social Welfare and Nutritious Meal Programme Department dated 04.09.2008. This G.O. was issued to appoint qualified Nutritious Meal Cooks (414 Members) and Cook Assistants (396 Members) totalling 810 employees as Nutritious Meal Organiser and elaborate provisions were made to Cook Assistants. Provisions were made to fill up Nutritious Meal Cooks through promotion.
56. G.O.Ms.No.142 Social Welfare and Nutritious Meal Programme (SW7) Department dated 06.07.2010 was issued in order to make appointment to 13753 vacancies by direct recruitment. Vide this Government Order, in order to implement the Judgment of the Hon'ble High Court, the following decisions were taken :-
(a)Rules of Reservation should be followed on commual rotation basis while appointing Anganwadi Worker, Mini Anganwadi Workers and Anganwadi Assistances in Integrated Child Development Services Scheme Centres and also in the appointment of Cook, Assistant in Puratchi Thalaivar MGR Nutritious Meal Scheme Centres by direct recruitment.
(b)The Rule of Reservation which already is in vogue should be continued in the appointment of Nutritious Meal Organizer.
(c)Rule of Reservation should be followed in all the above said posts considering the district as one unit.
(d)The orders that shall be issued periodically by the Personnel and Administrative Reforms Department in concern with the Rule of Reservation should be adhered to.
57. G.O.Ms.No.163 Social Welfare and Nutritious Meal Programme Department dated 18.09.2010 was issued with regard to appointment for the post of Nutritious Meal Organizer. It was provided that only women candidates could apply for the post. In the case of Commissioner of Panchayat Union / Municipality / Corporation, the Commissioner was to conduct the Interview and issue appointment order after approval of the District Collector. The appointing officer was District Collector and for Chennai Corporation, Commissioner of Social Welfare. The educational qualification for general category and downtrodden was 10th standard, whereas Scheduled Caste is 8th Standard. The Age for general category was 21 years and not exceeding 40 years and for Widows 20 to 40 years. The distance between the residence and work was fixed as 3 K.M. The rule of reservation was re-iterated and 25% of the posts should be filled up as under:-
1. On promotion - 25 %
2. Widows / Destitute - 25 %
3. Others (By direct recruitment)-50% The opportunity was given to the Panchayat Union Municipal Commissioner, Commissioner of Corporation or District Collector, who advertise vacancies by prescribing the educational qualification, age, distance criteria and other eligibility. It was stated that appointment should be restricted to Women candidates only. The Commissioner of Panchayat Union / Municipality / Corporation were directed to examine and conduct the Interview and send the file to the Personal Assistant (NMP) for approval for appointment. The educational qualification for general and downtrodden for Cook was 8th standard pass or fail, for Assistant, 5th standard pass or fail, for Cook to know how to read and write. The age from general category and downtrodden (SC) was fixed at 21 and not exceeding 40 years, Scheduled Candidates from 18 to maximum 40 years, Widows and destitutes from 20 to 40 years. The distance criteria was maintained at 3 K.M. The rule of reservation was directed to be applied and criteria was made for promotion and 25% of the posts shall be promotion posts cooks and Assistants as Nutritious Meal Organiser. A provision was also made that 25% of the remaining number of posts, after filling up the allotted promotion posts should be filled with widows / destitute and 50% for direct recruitment. It provided that all advertisement were to be issued for inviting applications.
58. G.O.Ms.No.4 Social Welfare and Nutritious Meal Programme (NMP) Department dated 06.01.2011 was issued with regard to Nutritious Meal Workers. This also stipulated that advertisement regarding details of vacancies and conduct of interview was to be carried out and out of the persons who applied, the School Management was to recommend 5% and District Collector was authorised to issue appointment letter to the persons recommended by the School in the case of aided minority schools and whereas in the case of non-minority Government aided school, the appointment procedure as applicable to Panchayat Union / Municipal Corporation schools as noted above was to be followed.
59. The Government, thereafter issued G.O.Ms.No.72 Social Welfare and Nutritious Meal Programme (NMP2) Department dated 20.04.2012 notifying the 28,596 posts in different districts for appointment, which have been noticed above.
60. Thereafter, G.O.Ms.No.139 Social Welfare and Nutritious Meal Programme (NMP1) Department dated 28.05.2012 has been issued. This was to provide 3% reservation for Differently Abled Persons while giving appointment to Noon Meal Anganwadi Workers and Helpers.
61. The Government has also issued G.O.Ms.No.110 Social Welfare and Nutritious Meal Programme (SW7) Department dated 14.05.2012 to issue instructions regarding appointment of Anganwadi Workers. The rules laid down reads as under:-
"ANGANWADI WORKER 2.1 Method of Recruitment:-
The District Collector concerned except Chennai will call for applications for filling up of vacancies in the respective Anganwadi Centre indicating the eligibility criteria through press release. The HOD of Integrated Child Development Services Department will call for applications in respect of vacancies in the respective Anganwadi Centre in Chennai District.
2.2. Appointing Authority:-
The District Collector is the appointing authority for the post of Anganwadi Worker except Chennai District. The Commissioner / Director Department of Integrated Child Development Services Scheme is the Appointing Authority for the post of Anganwadi Worker in respect of Chennai District. 2.3. Transferring Authority The District Collector is the transferring authority for the post of Anganwadi Worker except Chennai District. The Commissioner / Director Department of Integrated Child Development Services Scheme is the Transferring Authority for the post of Anganwadi Worker in Chennai District.
2.4.Mode of Recruitment The Government direct that 25% of posts of Anganwadi Worker shall be reserved to be filled up from amongst the Anganwadi Helper who have put in 10 years of satisfactory service and also possess requisite qualifications (age, education etc., ) for selection of Anganwadi Workers. 2.5. Age Limit Candidates who have completed 25 years and who are not more than 35 years of age will be recruited. The upper age limit for all categories shall be extended by 5 years (five years) for Widows, destitute and candidates in Hill areas (35+5 = 40 years) and Minimum age for candidates in Hill areas shall be reduced by 5 years (25-5=20 years) 2.6. Gender:-
As the Integrated Child Development Services Scheme aims to improve the Nutritional and health status of children of 6 months to 3 years, pregnant women and nursing mothers providing package of services including Supplementary Nutrition, Pre-School Education, immunization, health check up referral services etc., the Government direct that female candidates only be appointed in the post of Anganwadi Worker.
2.7. Educational Qualification:-
Educational qualification recommended is a pass in 10th Std for Anganwadi Worker. Educational qualification shall be relaxed to 8th Std for candidates in Hill areas.
2.8. Residency:-
The Government direct that the applicant should be the resident of the same hamlet. If no eligible / suitable candidate from the same hamlet is available, the candidates from the neighbouring hamlets of the same panchayat of the particular centre shall be considered. Even then, eligible / suitable candidates are not available, the candidates from the neighbouring panchayats located within 10 Kms shall be considered for the appointment of Anganwadi Worker.
In respect of Anganwadi Centres in the Municipality / Corporation area, the applicant residing in the same ward shall be considered. If no eligible / suitable candidate from the same ward is available, the candidates from the nearby ward shall be considered. Even then the eligible candidates are not available, candidates from the Division shall be considered for appointment of Anganwadi Worker.
2.9. Proof of Residence:-
The Government direct that the following documents shall be considered for the Proof of Residence.
1.Voter I.D
2.Panchayat / Municipality / Corporation Tax Receipt
3.Ration Card 2.10 Communal Rotation:-
The Government direct that rule of Reservation and commual rotation shall be strictly followed in the appointment of Anganwadi Worker taking the concerned district as one unit as per orders issued in the G.O.8th read above. The Government further direct to follow 3% reservation for the Different Abled Persons with Loco Motor disability (i.e.) orthopedically Different Abled Persons who are capable of handling small children (below 6 years) of their own, as ordered in Government Letter 10th read above.
2.11. Selection Committee:-
The Government direct, that the selection committee for the recruitment of Anganwadi Worker in all districts and Chennai shall be as follows:-
For all Districts except Chennai:-
1.District Programme Officer
2.Deputy Director (HS)
3.Child Development Project Officer (concerned) Selection Committee for Chennai:-
1.Deputy Director (ICDS) O/o. Principal Secretary / Special Commissioner, Integrated Child Development Services, Chennai - 113.
2.Joint Director / Deputy Director (Health)
3.District Programme Officer, Chennai
4.Child Development Project Officer (concerned) 2.12. Retirement Age:-
The Government direct that completion of 60 years shall be the retirement age for Anganwadi Worker.
62. Thereafter, another G.O.Ms.No.206 Social Welfare and Nutritious Meal Programme (SW7) Department dated 04.07.2012 has been issued. In this G.O., age relaxation was considered and the decision taken reads as under:-
1.The existing upper age limit stipulated in G.O.Ms.No.110 Social Welfare and Nutritious Meal Programme Department dated 14.05.2012 in the appointment of Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helper may be relaxed by 3 years for the differently abled persons.
2.The existing upper age limit stipulated in G.O.Ms.No.163 Social Welfare and Nutritious Meal Programme Department dated 18.08.2010 for the appointment of Noon Meal Organiser may be relaxed by 3 years for the different abled persons".
63. The reading of the different Government Orders from time to time shows that as per the Instructions, the Rule of Reservation is to be followed for appointment to these posts by considering District as one unit. Once this instructions has been framed, then the posts of these Anganwadi Worker have to be treated as based on as a District and therefore, one of the requisite condition would be that the post in a District are required to be advertised, beside calling the names from Employment Exchange etc. The State Government is therefore bound to make reservation for different categories and notify those posts in a consolidated advertisement, so as to enable all the candidates to compete for the posts. The process of selection as adopted by the State Government does not fit in the scheme as the applications are considered by taking the posts in a particular village as a unit. This process makes the selection illegal as it not only takes the right of consideration to eligible persons, but violates the constitutional mandate as there cannot be 100% reservation. In case the posts are advertised district wise and the candidates are selected on merits, then those persons can be appointed to different schools as per the reservation quota, which will be as per the Constitutional mandate and also the Government policy of reservation by communal rotation.
64. The Hon'ble Division Bench of this Court in the case of UNEMPLOYED SECONDARY GRADE TEACHERS WELFARE ASSOCIATION, SOCIETY REG. NO.48 OF 2007 ..VS.. STATE OF TAMIL NADU (REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SCHOOL EDUCATION), CHENNAI AND ANOTHER (2008 (4) L.L.N. 560) has been pleased to lay down as under :-
"6.2. While focussing on the question whether the process of employment can be confined only to the candidates sponsored by the employment exchange, the learned Single Judge, by placing reliance upon the Supreme Court decision in (2006) 4 SCC 1 (SECRETARY OF KARNATAKA v. UMADEVI), has concluded that the impugned Government Orders and proceedings had not been issued in derogation of any statutory rule and unless the statutory rules are held to be ultra vires in appropriate case, it would not be possible to hold that the impugned Government Orders and the proceedings were unconstitutional.
11. Article 16(2) clearly envisages that no person can be denied employment in public service on the ground of his residence alone. If a person with residence of a particular district who has to register his name willy-nilly in the same District Employment Exchange, is disabled from seeking employment in another part of the very same State, the only result is denial of opportunity of employment solely on the ground of residence and nothing else. Article 16(3) envisages an exception in the sense that it enables the Parliament and not any State Legislature to make a law.
16. In KAILASH CHAND SHARMA ..VS.. STATE OF RAJASTHAN AND OTHERS (2002 (4) L.L.N.36) (vide supra), in the context of public employment and the Supreme Court observed :-
"Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio-economic backwardness of the area for the purpose of admissions to professional colleges, it has been suggested that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself - be it within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Article 16."(emphasis added) 16.1 While recognizing the possibility of preference on the basis of rural backwardness for the purpose of admission to medical colleges, the Supreme Court proceeded to observe:-
"27. These observations, in our view, cannot be legitimately pressed into service for the purpose of justifying reservation or weightage in favour of rural candidates on the ground of nativity/residence for purposes of public employment. The difference in approach in relation to Articles 15 and 16 was indicated by Bhagwati, J. in Pradeep Jain case and we have quoted the relevant passage extensively. It was made clear in Pradeep Jain case that in the matter of admissions to professional colleges the considerations were different. As far as public employment is concerned, the classification on the basis of residence in a region or locality was broadly held to be constitutionally impermissible. Moreover, the preferential treatment of rural candidates in the instant case is not on the ground that they hail from the backward region. All or most of the villages in the district or the State cannot be presumed to be backward educationally or economically. Such a claim was not accepted in Pradip Tandon case by the three-Judge Bench. Even in Nidamarti case it was held that in the absence of material, certain regions cannot be dubbed as backward.
28. The justifiability of the plea stemming from the premise that uplifting the rural people is an affirmative action to improve their lot can be tested from the concrete situation which confronts us in the present cases. We are here concerned with the selections to the posts of teachers of primary schools, the minimum qualification being SSC coupled with basic training course in teaching. Can the Court proceed on the assumption that the candidates residing in the town areas with their education in the schools or colleges located in the towns or its peripheral areas stand on a higher pedestal than the candidates who had studied in the rural area schools or colleges? Is the latter comparatively a disadvantaged and economically weaker segment when compared to the former? We do not think so. The aspirants for the teachers' jobs in primary schools " be they from rural area or town area " do not generally belong to the affluent class. Apparently they come from the lower middle class or poor background. By and large, in the pursuit of education, they suffer and share the same handicaps as their fellow citizens in rural areas. It cannot be said that the applicants from non-rural areas have access to the best of schools and colleges which the well-to-do class may have. Further, without any data, it is not possible to presume that the schools and colleges located in the towns "small or big" and their peripheral areas are much better qualitatively, that is to say, from the point of view of teaching standards or infrastructure facilities so as to give an edge to the town candidates over the rural candidates. (Emphasis added) 16.2 While considering the possibility of reluctance of candidates from urban areas to serve in rural areas and the consequential absenteeism and propensity to seek transfer (pleas which are very similar to submissions made by the learned Addl. Advocate General), the Supreme Court repelled such submission in no uncertain term by observing:-
"Coming then to the next plea that the residents of towns, if appointed will not be willing to serve the rural areas and they will be more interested in getting themselves transferred to "relatively urban area and forward districts", does not in our view, stand a moment's scrutiny. The apprehension that "teacher absenteeism" will be rampant if non-rural candidates are appointed, to say the least, is based on irrelevant and unwarranted assumptions. First of all, as rightly pointed out by Dr A.M. Singhvi, postings and transfers are managerial functions. The authorities in charge concerned cannot be heard to say that there will be undue pressures from the candidates from extraneous sources and they will have to succumb to such pressures. Secondly, the question of non-rural candidates trying to avoid working in villages and seeking transfer to town or urban areas does not arise for the simple reason that the appointees would have no option but to work in villages coming within the jurisdiction of the Panchayat Samiti concerned. The only other possibility is that they may like to have postings in the villages close to the town. If the non-rural candidates would like to have postings at places close to the town, the rural area candidates may equally have the desire to get postings close to their native villages and many of them may even prefer working at places near the town. Thus desire and aspiration in regard to choosing the place of work need not be on a set pattern. Ultimately, it is a matter of regulation of postings of rural as well as non-rural candidates. As regards the candidates coming from other districts, the question of seeking inter-district transfer does not arise, as they are required to work within the particular district in which they are selected and appointed. The factors which may exist in the context of appointments to State-wide cadre does not exist here. The difficulties sought to be projected by the State appear to be more imaginary rather than real. We have, therefore, no hesitation in rejecting this argument."
(Emphasis added)"
19. In view of the provisions contained in Article 16 and in view of the above decisions, there cannot be any doubt that no person can be denied equality of opportunity in employment on the ground of residence alone.
30. May be because of the peculiar position, the candidates who have registered their names in some Employment Exchange or the other have not felt the necessity of challenging the validity of such a provision. The contention raised in the present appeals by the writ petitioners is to the effect that while selecting for the post of Secondary Grade Teacher, the authorities cannot confine the process of selection to the persons whose names have been included in the Employment Exchange of a particular district. Rule 10A does not specifically provide that the process of selection has to be confined to the names registered in a particular district. If rule 10A is to be construed in such a manner, it would obviously be against the provisions contained in Article 16(2) and since a law confining the question of employment on the basis of residence alone can be made by the Parliament, obviously if any State law or rule would be made laying down that the employment shall be confined to the residents of a particular district, such law/rule would be invalid. Law is well settled that a provision should ordinarily be interpreted in a manner consistent with the provisions contained in the Constitution including the chapter relating to fundamental rights. Therefore, Rule 10A is required to be read in the light of the provisions contained in Article 16(2) as well as Articles 14 and 19(1) of the Constitution".
65. This Court, again in the case of D. RAMANATHAN ..VS.. THE DISTRICT COLLECTOR (W.P.No.45950 of 2006 decided on 28.02.2011) was pleased to lay down as under:-
"11. No doubt, it is true that the post of Noon Meal Organiser is not a constituted service created by the Rules framed under Article 309 of the Constitution. But, yet it is a public employment. Therefore, when once a person appointed is to be sent out on grounds of misconduct which expressly caused a stigma on an office holder, certainly, the respondents cannot contend that such persons can be sent out without observing minimum principles of natural justice".
66. This view was again re-iterated by the Hon'ble Division Bench of this Court in W.A.(MD)No.966 of 2010 (S. MANJULA ..VS.. THE DISTRICT COLLECTOR, SIVAGANGAI DISTRICT, SIVAGANGAI) decided on 02.03.2011 laying down as under:-
"It is well settled position that the appointment of Anganwadi worker which is a public employment, cannot be based on the residence of the candidate. However, in the instant case, it is seen from the file produced by the second respondent, in the remarks column, it has been noted parallel to the name of the petitioner that she belongs to local place. The issue regarding preference based on the village was already considered by this Court in the decision reported in 2007(6) MLJ 402 (P.Vasantha and others Vs.The District Collector, Dindigul District, Dindigul and others) wherein it is held that giving of such preference based on residents is in violation of Article 16(2) of the Constitution. In Paragraphs 17 and 18, it is held thus:-
"17. Therefore, if the contentions of the petitioners is to be accepted then the preference should be given solely on the basis of the residence, and that will be hit by Article 16(2) of the Constitution. However, considering the fact that the post requires constant attention towards the children and the availability of the person in a nearby area is preferable and a proximity of distance by the eligible candidates may be constitutionally permissible but the selection cannot be solely on the ground of residential preferences to the exclusion of other criteria has to be accepted as it will hit Article 16(2) of the Constitution. As rightly contended by the official respondents, the proximity of residence/locality is only a preference and not a qualification by itself. Once it is established that none of the selected candidates are otherwise disqualified they cannot be edged out of consideration only on the ground that they were not being the residents of the locality.
18.Further, preferring a candidate from a particular hamlet to the exclusion of candidates from other hamlets in the same Village Panchayat Union or in respect of Panchayat Union Centres preferring the candidates from only one village to the exclusion of other villages living in the same panchayat union may also be arbitrary and in many times, it may also result in violating the communal roster being followed".
The said order was approved by the Division Bench in W.A.No.1707/2009 by the Division Bench (HLG,CJ and NPVJ) by judgment dated 01.12.2009. Hence, the action of the respondents 1 and 2 in selecting the third respondent only on the basis of her residential parameter without having any other distinguishing factor is definitely in violation of the constitutional provision contained in Article 16(2) of the Constitution of India."
67. It may be noticed that the Hon'ble Division Bench of this Court in THE SECRETARY TO GOVERNMENT ..VS.. S. MUGESWARI (W.A.NO.146 of 2012 decided on 16.04.2012) has overruled the Judgment of the Hon'ble Single Judge, quashing the clause in Government Order, fixing the distance between the place and residence of the applicant to be within 3 K.M. (Panchayat - Village - Revenue Village need not be taken into account), even though the Judgment of the learned Single Judge was based on the decision of this Court in the case of P.VASANTH .VS.. THE DISTRICT COLLECTOR, DINDIGUL DISTRICT (2007 (6) M.L.J. 402) and also the Hon'ble Division Bench of this Court in W.A.No.1707 of 2009 dated 01.12.2009 and W.A.(MD)No.966 of 2010 dated 02.03.2011, holding therein that the said clause was violative of Article 16(2) of the Constitution of India.
68. With respect to the Hon'ble Division Bench, it may be noticed that the Hon'ble Division Bench has not reversed the earlier decisions of the Hon'ble Division Bench of this Court, holding the posts to be public appointment, and thereby giving constitutional right to the citizen to compete for the post.
69. The reason given by the Hon'ble Division Bench in reversing the decision of the Hon'ble Single Judge reads as follows:-
"21. We have highlighted the aforesaid incident only for the reason that the Noon Meal Scheme needs full commitment and dedication of the persons who are employed for the purpose of carrying on the said scheme. At the risk of repetition, we again observe that the Mid Day Meal Scheme is not only devised for giving or creating employment opportunities, but its main intention is to improve the health and Nutrition status of school going children, coupled with the psychological and social development of the children. It is a special scheme run by different states and persons are employed under a Special category employment by way of Government Orders and administrative instructions. Hence, imposing a condition that the candidates who seeks to serve as Noon Meal Organiser must be a resident of the same village where the centre is located and that the distance between his residence and such Centre should be within three kilometres cannot be said to be wholly arbitrary and illegal. The sole object of inserting this condition is to give adequate care to school children by providing them quality cooked food.
22. As rightly submitted by the learned Advocate General, the role of Noon Meal Organisers in the entirety of the scheme is very important, as they are the ones who are responsible for the implementation of this noble scheme. They are the custodians of food commodities stored in the stock room. The meals have to be prepared by the cooks at the respective Centres every day before 12.30 p.m., which has to be supervised by the Noon Meal Organisers and it is the duty of the Noon Meal Organiser to maintain the quality and quantity of the food provided to the children. Hence, a Noon Meal Organisers has to be present at the Centre all the time and that can be achieved only when the Noon Meal Organiser resides at the nearest possible place, preferably within three kilometres from the Centre. Since the distance criterion as fixed in the G.O is only with the object of achieving the goal of providing quality cooked food to the children under a special scheme, the same cannot be held to be arbitrary or unconstitutional. In the State of Tamil Nadu, in every village and in most of the rural areas, there are centres providing cooked noon meals to school children. Hence, the women residing in the respective villages will get an opportunity of employment of Noon Meal Organisers and Cooks at such centres. Therefore, they will not be deprived of getting an opportunity of employment in the Centre located in their respective villages. Hence, in our considered opinion, particularly, having regard to the nature of employment under the Special Scheme being implemented by the Government, such a condition imposed in the impugned Government Order cannot be held to be violative of neither Article 14 nor Article 16 of the Constitution of India.
23. Moreover, it is not the for the first time that the Government has stipulated the distance criterion by way of G.O.Ms.No.163 dated 18.08.2010. In fact, the issue has frequently been referred to the Government for necessary clarifications and in G.O.Ms.No.203 Social Welfare and Nutritious Meal Programme (Social Welfare -7) Department dated 19.08.2005, the Government has issued such clarification. In the said Government Order, it has been pointed out that when appointments are made for Noon Meal Centres from a radius of 10 kilometres, much time is lost for the person so appointed to commute between such long distance and many a times such persons does not turn up for duty, which has been noticed during surprise inspections by the officials. Further, if the person so appointed is not a resident of that village, he / she seeks transfer to a different panchayat / district and such matters are often litigated upto the High Court, which hampers, the effective functioning of such noon meal Centre. Taking into consideration such difficulties faced, the Government issued the following clarifications in the aforesaid G.O.:-
1.Wherever there is vacancy in any Noon Meal Or Anganwadi Centre, eligible persons residing in the same hamlet should be appointed.
2.Where qualified persons are unavailable in the hamlet, eligible persons from other neighbouring hamlets under the same village panchayat should be selected.
If even such persons are not available, then qualified persons from other panchayats, not beyond the distance of 10 kilometres surrounding the said panchayat should be selected.
3.As far as Municipalities / Corporations are concerned eligible persons from the same ward where there is vacancy should be selected, and on the unavailability of persons there, eligible persons from the nearby ward should be considered, and if even such persons are not eligible, then persons from the same Division should be selected.
From the above, we are clear in our mind that the Government has tried its utmost to evolve a pragmatic solution while appointing Noon Meal Organisers from places nearer to the Noon Meal Centres and the distance critrion has been rightly fixed taking into account the practical difficulties faced while appointing persons belonging to far off places".
70. Though under the normal circumstances this Court would have placed with this matter before the Hon'ble Chief Justice, for constituting a Full Bench to consider the matter, in view of the conflicting Judgments of the Division Bench, but keeping in view the fact that earlier judgments of the Hon'ble Division Bench are in consonance with law laid down by the Hon'ble Supreme Court in KAILASH CHAND SHARMA ..VS.. STATE OF RAJASTHAN AND OTHERS (2002 (6) S.C.C. 562) and also the fact that fixing 3 K.M limit does not fit in scheme of the Government instructions issued from time to time, with due respect to the Hon'ble Division Bench, the Judgment of this Court in THE SECRETARY TO GOVERNMENT ..VS.. S.MUGESWARI (W.A.No.146 of 2012 decided on 16.04.2012) (supra) can be said to be per incuriam, thus not a binding precedent.
71. The Hon'ble Supreme Court, in the case of SAFIYA BEE ..VS.. MOHD. VAJAHATH HUSSAIN ALIAS FASI (A.I.R. 2011 S.C. 421) has held as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are constrained to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
72. The so called laudable purpose of the scheme does not permit the State Government to issue executive instructions or Rules to be violative of Articles 14 and 16 of the Constitution of India, so as to deny the right of consideration to citizen as it violates Articles 16(2) and 16(3) and 14 of the Constitution of India.
73. This finds support from the Hon'ble Supreme Court in the case of KAILASH CHAND SHARMA ..VS.. STATE OF RAJASTHAN AND OTHERS (2002 (6) S.C.C. 562) wherein the Hon'ble Supreme Court has been pleased to lay down as under:-
Undoubtedly, the impugned circular is the product of the policy decision taken by the State Government. Even then, as rightly pointed out by the High Court, such decision has to pass the test of Articles 14 and 16 of the Constitution. It should be free from the vice of arbitrariness and conform to the well-settled norms, both positive and negative, underlying Articles 14 and 16, which together with Article 15 form part of the constitutional code of equality.
The sweeping argument for classification on the basis of residence in a district or rural areas thereof which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. Residence by itself - be it within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis.
An analysis of Article 16 indicates two things: firstly, discrimination only on the ground of residence (or place of birth) insofar as public employment is concerned, is prohibited; secondly, Parliament is empowered to make the law prescribing residential requirement within a State or Union Territory, as the case may be, in relation to a class or classes of employment. That means, in the absence of parliamentary law, even the prescription of requirement as to residence within the State is a taboo. However the prohibitory mandate under Article 16(2) is not attracted if the alleged discrimination is on grounds not merely related to residence, but the factum of residence is only taken into account in addition to other relevant factors. This, in effect, is the import of the expression "only".
The plea of affirmative action proceeds on the supposition that the proportion of employment of rural residents is much less than that of the residents in the towns. The other assumption underlying this argument is that the educated people in the rural areas are economically weaker than those living in towns. None of these assumptions is based upon any data or concrete material. The argument built up on this plea falls more in the realm of platitudes rather than affording a solid basis for the classification.
The justifiability of the plea stemming from the premise that uplifting the rural people is an affirmative action to improve their lot can be tested from the concrete situation which confronts us in the present case. The Court cannot proceed on the assumption that the candidates residing in the town areas with their education in the schools or colleges located in the towns or its peripheral areas stand on a higher pedestal than the candidates who had studied in the rural area schools or colleges. The latter cannot be said to be comparatively a disadvantaged and economically weaker segment when compared to the former. The aspirants for the teachers' jobs in primary schools - be they from rural area or town area - do not generally belong to the affluent class. Apparently they come from the lower middle class or poor background. By and large, in the pursuit of education, they suffer and share the same handicaps as their fellow citizens in rural areas. Further, without any data, it is not possible to presume that the schools and colleges located in the towns - small or big - and their peripheral areas are much better qualitatively.
The apprehension that "teacher absenteeism" will be rampant if non- rural candidates are appointed, to say the least, is based on irrelevant and unwarranted assumptions. First of all, postings and transfers are managerial functions. The authorities in charge concerned cannot be heard to say that there will be undue pressures from the candidates from extraneous sources and they will have to succumb to such pressures. Secondly, the question of non-rural candidates trying to avoid working in villages and seeking transfer to town or urban areas does not arise for the simple reason that the appointees would have no option but to work in villages coming within the jurisdiction of the Panchayat Samiti concerned. The only other possibility is that they may like to have postings in the villages close to the town. If so, the rural area candidates may equally have the desire to get postings close to their native villages and many of them may even prefer working at places near the town. Thus desire and aspiration in regard to choosing the place of work need not be on a set pattern. Ultimately, it is a matter of regulation of postings of rural as well as non-rural candidates. As regards the candidates coming from other districts, the question of seeking inter-district transfer does not arise, as they are required to work within the particular district in which they are selected and appointed. The factors which may exist in the context of appointments to State-wide cadre does not exist here.
The assertion that dialect and nuances of the spoken language vary from district to district is not based upon empirical study or survey conducted by the State. In such a case, the State Government should have identified the zones in which vernacular dissimilarities exist and the speech and dialect vary. That could only be done on the basis of scientific study and collection of relevant data. In any case, if these differences exist zonewise or regionwise, there could possibly be no justification for giving weightage to the candidates on the basis of residence in a district. The argument further breaks down, if tested from the standpoint of award of bonus marks to the rural candidates. To prefer the educated people residing in villages over those residing in towns - big or small - of the same district, on the mere supposition that the former (rural candidates) will be able to teach the rural students better would only amount to creating an artificial distinction having no legitimate connection to the object sought to be achieved. It would then be a case of discrimination based primarily on residence which is proscribed by Article 16(2)."
74. Therefore, in view of the authoritative pronouncements of the Hon'ble Supreme Court, the judgment of the Division Bench of this Court in The Secretary to Government (supra) can be said to be only per incuriam not laying down the correct law. This Court, will follow the earlier Division Bench Judgment of this Court holding the clause restricting the appointments to the candidate falling within 3 K.M to be ultra vires the Constitution of India.
75. This is the only view, which can be taken on consideration of the Government Orders issued from time to time. In case the appointment is restricted to the candidates falling within 3 K.M, and the reservation, roster points are made on village basis for appointment of a particular category, it would deny the right of consideration to general category and other category will have no right of consideration to the post as they would not be eligible to compete in any of the village because of the bar of 3 K.M.
76. This would thus result in 100% reservation of the post, specially when the post is not for a specified period, but is a pensionable post.
77. For example, if a post in Village-A is reserved for a candidate belonging to Scheduled Caste category, then the person falling within 3 K.M., of that village and belonging to general category or other reserved category will have no right of consideration at all as they cannot compete for any post in other villages B, C and D because of bar of 3 K.M. Therefore, this part of the Government instructions / rule is unconstitutional therefore not sustainable in law.
78. At the sake of repetition, it may be noticed that the purpose and object of the Scheme can not permit the State to violate the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India, that all eligible citizen are entitled to compete for the post.
79. The joint Selection by issuing advertisement of the posts is necessary for the reason that according to the instructions issued by the State Government, the reservation for physically handicapped, Scheduled Caste and other Backward Classes, Communal rotation and women candidates, reservation of 25% for promotion etc., cannot be achieved if selection process is based on single post selection by restricting appointment to 3 K.M.
80. The posts to be filled is permanent post and pensionable.
81. It is also not disputed that after the selection is made, the selected candidate can be posted at the place of their residence to achieve the object, but certainly, the right of consideration cannot be denied to all eligible persons.
82. This Court in K.P.JAGANATHAN ..VS.. THE COMMISSIONER, DEPARTMENT OF EMPLOYMENT AND TRAINING, GUINDY, CHENNAI (W.P.No.26162 of 2010 decided on 02.08.2012) has already held as under:-
23. The Hon'ble Supreme Court in State of Bihar vs. Upendra Narayan singh and others (2011(1) SCT 208) again considered the question with regard to appointment to public office and declared the law as under:
"27. For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short `the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same.
28 In Union of India and others v. N. Hargopal and others [(1987) 3 SCC 308], a two-Judge Bench of this Court considered the question whether persons not sponsored by the employment exchange could be appointed to the existing vacancies. The High Court of Andhra Pradesh had ruled that the provisions of 1959 Act are not applicable to Government establishment; that the Act does not cast duty either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the employment exchanges only, and that instructions issued by the Government of India that candidates sponsored by the employment exchanges alone should be appointed are contrary to Articles 14 and 16. This Court referred to Sections 3 and 4 of the 1959 Act, adverted to the reasons enumerated in the counter- affidavit filed on behalf of the Union of India before the High Court to justify the appointments only from among the candidates sponsored by the employment exchange and held:
"9........ The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution.
29. In Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others [(1996) 6 SCC 216], a three-Judge Bench while reiterating that the requisitioning authority/establishment must send intimation to the employment exchange and the latter should sponsor the names of candidates, observed:
"...... It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.
30. The same principle was reiterated in Arun Kumar Nayak v. Union of India and others [(2006) 8 SCC 111] in the following words: "9 This Court in Visweshwara Rao, therefore, held that intimation to the employment exchange about the vacancy and candidates sponsored from the employment exchange is mandatory. This Court also held that in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualifications are attracted, so that adequate choices are made available and the best candidates would be selected and appointed to subserve the public interest better.
31. The ratio of the above noted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television.
32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together."
24 This view is again reiterated in State of Orissa and another vs. Mamata Mohanty (2011(2) SCT 718) laying down as under:-
"APPOINTMENT/EMPLOYMENT WITHOUT ADVERTISEMENT:
18. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all 18 eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789;
State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made 19 by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
25 This Court in P.M.Malathi vs. State of Tamil Nadu and others [(2012)3 M.L.J. 669 again held that any Rule of the State Government restricting the right of consideration of the eligible candidates for public appointment is unconstitutional, being contrary to Article 14 and 16 of the Constitution of India."
The process of selection based on single point post on village basis therefore is not sustainable in law as it violates the fundamental right of eligible persons to compete for the post and even ventures the right of reserved category candidate to compete for the general category as well as against the reserved post.
83. In view of the law laid down and the Government Order issued from time to time, the picture which emerges is as under:-
i.The G.O.Ms.No.142 dated 06.07.2010 makes reservation in the ratio of 1 : 4 and to adopt communal rotation in the ratio of 1 : 4 including reservation for women and disabled.
ii.Again in G.O.Ms.No.20 dated 10.02.2008 it is laid that communal rotation has to be adopted simultaneously.
iii.In G.O.Ms.No.101 dated 30.05.2008, the 200 points roster is modified by making 3.5% allotment posts to be reserved for B.C.Christians and Muslims, which subsequently, in the case of Christian reversed vide G.O.Ms.No.374 dated 11.09.2008.
iv.The G.O.Ms.No.10 dated 09.02.2009 lays down the table for reservation of different communities in 200 points roster.
v.The G.O.Ms.No.72 dated 30.04.2012 shows the total vacancies position in each district to be filled up. For example, in Madurai District, the total posts to be filled up are 588 and in Erode District 703 and so on.
vi.In G.O.Ms.No.163 dated 18.09.2010, 25% posts are reserved for promotion and another 25% for widows / destitutes.
vii.G.O.Ms.No.110 dated 14.05.2012 is laying down the method of recruitment. The District Collector, except Chennai, is the competent Authority to invite application by issuing press release, whereas the Head of Department of Integrated Child Development Services is to invite and consider the application in Chennai District. The District Collector has also been given power to transfer the employees appointed or serving. It also makes reservation of 25% of the posts for promotion from Anganwadi Workers, who have been put in ten years of satisfactory service.
84. The object sought by these Government Orders cannot be achieved if the reservation is based on villages, as it will not be possible to make provision for promotion of 25% against one post as Anganwadi Worker though senior will not be promoted because of the bar of 3 K.M. It also prescribes the educational qualification. Though the rule makes provisions for extending 3 K.M to 10 K.M., but again, it cannot be said to be workable.
85. The process of selection therefore by selecting the candidates based on village reservation cannot be sustained in law, being unconstitutional, therefore, the whole process of selection stands vitiated being hit by Articles 14 and 16 of the Constitution of India, as the process of selection has resulted in denial of consideration to all the eligible persons.
86. Consequently, all these writ petitions are disposed of. A writ in the nature of Certiorari is issued, quashing the selection in pursuance to G.O.Ms.No.72 Social Welfare and Nutritious Meal Programme Department dated 30.04.2012.
A writ in the nature of Mandamus is also issued, directing the respondents i.to consolidate all the Government Orders / Instructions dealing with appointment of Noon Meal Organizers / Cook / Cook Assistant / Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helper under the order of Puratchi Thalaivar MGR Scheme and Integrated Child Development Services by direct recruitment to have clear picture regarding appointments ;
ii.to invite applications for all the posts in the District from all the eligible candidates. The advertisement should indicate the posts, reservation for each reserved categories and posts for general category, disabled etc., The advertisement should also disclose eligibility conditions regarding age, qualification, additional qualification, if any, so as to enable the applicant to apply for the post.
iii.to constitute the Selection Committee to consider the merit of every eligible candidate, and thereafter selection be made purely on merit, subject to reservation and communal rotation as per criteria to be fixed by the Selection Committee to assess the merit;
iv.in order to achieve the object of having local person to man the post, the selected candidate can be posted in his village, subject to right of transfer to District Collector as envisaged under the Government Instructions. In case of two or more persons are selected from the same village, then they can be posted to nearby village. It is for the State Government to decide.
Keeping in view the fact that the posts were advertised as back as on 30.04.2012, respondents are directed to carry out this exercise, and make appointments preferably within two months of receipt of certified copy of this order.
No costs.
Consequently, the connected miscellaneous petitions are closed.
Dpn/-
To
1. The Secretary to the Government of Tamil Nadu Social Welfare and Nutrition Meals Department, Secretariat, Chennai.
2. The District Collector, Madurai District, Madurai - 625 020.
3. The District Project Officer, Madurai District.
4. The Project Officer, Child Development, T. Kallupatty, Madurai District.