Madras High Court
M.Shanmugavalli vs The District Collector on 14 September, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/09/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.3017 of 2006 W.P.(MD)Nos.5007, 5202 and 9442 of 2007, 146, 6315 and 11735 of 2008, 1314, 5891, 7328, 7652, 7700,8519, 8803, 9471, 10262, 10375, 10476, 10643, 10826, 11339, 11750, 11972, 12248, 12504, 12545, 12761, 12765, 13062, 13129, 13189, 13533, 13578 and 14055 of 2009, 186, 440, 1005, 1013, 1195, 1456, 2850, 2861, 4323, 5472, 5635, 5733, 6379, 6569, 6983, 7342, 7502 and 8621 of 2010, 3523 and 10161 of 2007, 8312, 9085, 9089 and 9513 of 2010 and M.P.(MD)Nos.2,1,2,2 of 2007, 1 of 2008, 1,1,2,1,2,1,2,1,2,1,2,1,1,2,2,1,2,1,2, 1,2,1,2,1,1,2,1,2,1,2,1,2,1,2,1,2,1,2,1, 2,1,2,1 and 2 of 2009, 1,2,2,2,2,2,1,2,1,2, 3,1,1,1,2,2,1,1,2,1,2,1,2,2,1 and 2 of 2010, 1,1 and 2 of 2007 and 1 of 2008, 1,1,1,2 and 1 of 2010 M.Shanmugavalli .. Petitioner in W.P.(MD)No.3017/2006 Vs. 1.The District Collector, Ramanathapuram District, Ramanathapuram. 2.The Commissioner, Panchayat Union of Thirupullani, Thirupullani, Ramanathapuram District. 3.K.Maheswari .. Respondents in W.P.(MD)No.3017/2006 W.P.(MD)No.3017 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned order in Na.Ka.W1/60515/2005, dated 20.02.2006 passed by the first respondent and to quash the same so far as the appointment of the third respondent is concerned and to direct the first and second respondents to consider and appoint the petitioner for the post of Organiser of noon meal scheme at Panchayat Union Primary School of Koraikoottam village, Thirupullani Panchayat Union, Ramanathapuram District as per G.O.Ms.No.135, dated 17.6.2005 and G.O.Ms.No.203, dated 19.08.2005. !For Petitioners ... Mr.K.K.Kannan Mr.M.S.Sureshkumar Mr.S.Mani, Mr.L.Shaji Chellan Mr.S.Vijayakumar Mr.R.Sureshkumar Mr.Ananth C.Rajesh Mr.J.Anandkumar Mr.G.R.Swaminathan Mr.T.Vadivelan Mr.N.Anandapadmanabhan Mr.R.Anand, Mr.M.Arun Murugan Mr.M.Sureshkumar, Mr.R.Sundar Mr.K.Kannan, Mr.Sribalaji Mr.V.Ilanchezian Mr.A.Thiruvadikumar Mr.M.Vallinayagam Mr.V.Kathirvelu Mr.Veerakathiravan Mr.S.M.Sanjay, Mr.P.Kannadhasan Mr.M.V.Venkataseshan Mr.G.Thalaimutharasu Mr.S.Kanagarajan, Mr.T.Arul Mr.R.Karthikeyan Mr.N.Dilipkumar, Ms.P.Malini Mr.N.Sundareshan for M/s.Sun Associates Mr.T.Arul, Mr.P.T.S.Narendravasan Mr.S.M.Mohangandhi Mr.V.Perumal Mr.N.R.Balaji Srinivasan for M/s.Hallmark Associates Mr.S.Bharathy Kannan Mr.S.Durairaj M/s.P.Bhaskar Associates Mr.R.Aravindan, Mr.D.Malaichamy Mr.R.Vijayakumar Mr.F.X.Eugene, Mr.K.Srinivasan Mr.V.Kannan ^For Respondents ... Mr.R.Janakiramulu, Spl.G.P. Mr.S.C.Herold Singh, GA Mr.Periyakaruppan Mr.K.S.Selvaganesan Mr.K.Balasubramanian Mr.K.P.Narayanakumar Mr.V.Manoharan Mr.N.Balakrishnan Mr.S.Bharathy Kannan Mr.J.Padmavathy Devi Mr.R.Manoharan Mr.A.Haja Mohideen Mr.S.Palanivelayutham Mr.M.Venkataseshan Mr.T.M.Madasamy Mr.K.M.Vijayakumar MR.K.P.Krishnadoss Mr.M.Rajarajan Mr.M.Subash Babu Mr.S.P.Maharajan Mr.D.Gandhiraj Mr.R.Anand Mr.V.Rajasekaran, Spl.G.P. Mr.D.Sasikumar Mr.K.Balasubramaniam Mr.V.Karthikeyan Mr.K.Kumaravel, Mr.S.Karthik Mr.R.Gowrishankar, Mr.M.AjmalKhan Mr.S.Visvalingam, Mr.K.Rajasekaran Mr.R.Sivalingam, Mr.M.Sureshkumar Mr.N.Sankar Ganesh - - - - :COMMON ORDER
Heard both sides. These batch of writ petitions arise out of appointment or non appointment in various noon meal centers for the post of Noon Meal Organizer, Cook or Assistant Cook under the control of Noon Meal Department and also Anganwadi Workers under the control of Integrated Child Development Scheme (ICDS).
2.Most of the petitioners have placed reliance upon G.O.Ms.No.203, Social Welfare and Noon Meal Department, dated 19.08.2005. Under the said G.O., for the purpose of such an appointment, a person residing in the hamlet in which the center was located will be preferred, failing which a person in the neighbouring hamlet can be selected. Even thereafter, if no qualified person is available, then any qualified person within the radius of 10 Kms. can be appointed. It also provides certain qualifications and priority in the quotas such as Widows, destitute, etc.
3.The contention raised in this writ petition was that candidates who are selected are not residing in the same village, whereas the petitioners are living close proximity or residing in the same village. Some of the selected candidates are living far away, i.e. beyond 10 Kms. Therefore, their appointments were contrary to the G.O. under which selections were made.
4.In the following writ petitions, the rights based on residence with close proximity to the centre were raised.
W.P(MD)No.3017/2006 W.P(MD)No.5007/2007 W.P(MD)No.11735/2008 W.P(MD)No.1314/2009 W.P(MD)No.7652,7700/ W.P(MD)No.9471/2009 2009 W.P(MD)No.10476/2009 W.P(MD)No.11339/2009 W.P(MD)No.11972/2009 W.P(MD)No.12761/2009 W.P(MD)No.12765/2009 W.P(MD)No.13062/2009 W.P(MD)No.13129/2009 W.P(MD)No.13189/2009 W.P(MD)No.13533/2009 W.P(MD)No.13578/2009 W.P(MD)No.1005/2010 W.P(MD)No.1013/2010 W.P(MD)No.1195/2010 W.P(MD)No.1456/2010 W.P(MD)No.5472/2010 W.P(MD)No.5733/2010 W.P(MD)No.6569/2010 W.P(MD)No.6983/2010 W.P(MD)No.7502/2010 W.P(MD)No.8621/2010 W.P(MD)No.9085/2010 W.P(MD)No.9089/2010
5.The relevant G.O. and the guidelines issued therein came to be considered by this court in very many writ petitions and once such case was in P.Vasantha and others Vs. District Collector, Dindigul District, Dindigul and others reported in 2007 (6) MLJ 402. The rule has been interpreted to mean that it cannot be an essential qualification, but one of preference. Ultimately, if two candidates have equal qualifications and have done well in the interview, obtained same marks, then preference may be shown to a candidate who has residence in close proximity to the school.
6.The question that arises for consideration is whether any preference based upon locality can be considered to the exclusion of other considerations by the Department?
7.As rightly contended by the official respondents, preferences based upon the locality is only a preference and not a basic qualification. If preference has been extended solely based upon the residence of a candidate, the same will be hit by Articles 16(2) of the Constitution and Courts have frowned upon any preference being shown upon the locality.
8.A Division Bench of this Court in the judgment National Life Insurance Employees Association, rep. by its General Secretary and Another V. Life Insurance Corporation of India, Madras reported in 1990-1-L.W. 271 has dealt in a similar issue. The relevant passage found in paras 6 and 7 are as follows:
"6.Though Article 15 does not mentioned the word 'residence' Article 16, dealing with equality of opportunity in matters of public employment, states that no citizen shall, on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State."
"7....Therefore, when the 'note' says that 'only candidates in the specified Exchanges alone are eligible to apply, it results in a classification, which is unwarranted, unjust and not provided, even in the Regulations of the respondent-Corporation. Under Section 49(2) of the Life Insurance Corporation Act, the service conditions could be regulated only by Regulations framed by it and not by administrative decisions taken by different authorities stipulating terms and conditions, which offend Constitutional provisions. In the opening part of the advertisement, the intention of extending 'preference' to those residing in the branches situate in the areas mentioned therein clearly bring about the intention of confining recruitment based on the residence of the applicants and to achieve it, the registration in the concerned Employment Exchanges had been adopted."
9.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.
10.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.
11.This Court in D.Pothumallee and others Vs. District Collector, Collectorate, Thiruvarur District and others reported in 2010 (5) MLJ 46 has held that it is a public employment covered by Articles 14 and 16 of the Constitution and rule of reservation is also applicable in such course. The said judgment was implemented by the State by the issuance of a Government Order vide G.O.Ms.No.142, Social Welfare and Noon Meal Scheme Department, dated 6.7.2010.
12.In most of the cases, counter affidavits have been filed by the selecting authorities, wherein distance pointed out by the petitioners regarding residence of contesting respondents were denied. It was held that they were living either in the same village or in the proximity to the centre. In W.P.(MD)No.1314 of 2009, in the counter affidavit it was stated that the contesting respondent has a ration card and had produced the same during the interview. In W.P.(MD)No.7652 of 2009 in the counter, the contesting respondent is residing beyond 10 Kms. was denied. It was stated that she was residing within 2.5 Kms. In W.P.(MD)No.5472 of 2010, it was indicated that selected candidate is residing within 3 Kms. from the centre.
13.In the light of the earlier decisions of this court, the writ petitioners' contention that contesting respondents are living far away from the petitioners' residence has no legal basis so as to entertain the writ petitions. Hence all writ petitions are liable to be dismissed.
14.In W.P.(MD)No.5891 of 2009 is for a direction to consider the petitioner's case for employment. It is not clear as to how such a direction can be issued when filling up of vacancies, appropriate notifications have been issued.
15.In the following writ petitions, W.P(MD)No.5202/2007 W.P(MD)No.9442/2007 W.P(MD)No.6315/2008 W.P(MD)No.7328/2009 W.P(MD)No.8519/2009 W.P(MD)No.8803/2009 W.P(MD)No.440/2010 W.P(MD)No.2861/2010 W.P(MD)No.6379/2010 W.P(MD)No.3523/2007 W.P(MD)No.9513/2010 the challenge was that either the candidate is having higher qualification (W.P.(MD)No.5202/2007) or rival candidate lacks in age (W.P.(MD)No.9442/2007) or that senior in age (W.P.(MD)No.9513/2010) or that certain appointments were made due to political influence (W.P.(MD)No.8803/2009) or that having got inter- caste marriage (W.P.(MD)No.6315/2008), there must be priority or in case of disablement (W.P.(MD)No.8519/2009) and physically handicapped (W.P.(MD)No.440/2010), there should be priority and that previous experience (W.P.(MD)No.7328/2009) must be considered. In W.P.(MD)No.2861 of 2010, the claim was that she being a scheduled caste must be preferred. But in the counter affidavit, it was denied stating that roster point has changed and it was allotted to the Most Backward community category.
16.These arguments were not based on any relevant rules and the petitioners having attended the selection process cannot turn back and put a new claim after the selection process are over.
17.In the following cases, W.P(MD)No.146/2008 W.P(MD)No.10262/2009 W.P(MD)No.10643/2009 W.P(MD)No.10826/2009 W.P(MD)No.11750/2009 W.P(MD)No.5635/2010 it was stated that contesting respondents had neither applied for the posts and in some cases they had not attended the interview or there was no proper selection. These claims were stoutly denied in the counter affidavits filed by the official respondents or by private respondents. The affidavits also lacked in detail. Therefore, such claims cannot be considered.
18.In fact, in W.P.(MD)No.10262 of 2009, the allegation that there was no interview was denied in the counter. In W.P.(MD)No.10643 of 2009, the contesting respondent did not attend the interview was denied in the counter. It was stated that she had attended the interview and performed well. In W.P.(MD)No.11750 of 2009, the allegation that there was no proper selection was also denied in the counter affidavit. In W.P.(MD)No.146 of 2008, there was no application was also denied in the counter affidavit filed along with vacate injunction application.
19.In the following cases, W.P(MD)No.10375/2009 W.P(MD)No.12248/2009 W.P(MD)No.12504/2009 W.P(MD)No.12545/2009 W.P(MD)No.14055/2009 W.P(MD)No.186/2010 W.P(MD)No.2850/2010 W.P(MD)No.4323/2010 W.P(MD)No.7342/2010 W.P(MD)No.10161/2007 W.P(MD)No.8312/2010 claims were based upon that the petitioners being Widow/destitute should be considered on priority basis. No doubt, the Government guidelines show certain priorities, but there is no selection solely on the basis of priority. In fact, there is no post reserved for priority quota. Even such candidates will have to attend the interview and must go through the selection process.
20.In W.P.(MD)No.10375 of 2009, it was stated that the petitioner though claiming to be a widow did not produce other certificates which are required. Therefore, on that ground it was denied. In W.P.(MD)No.2850 of 2010, the claim was based on widow was also denied in the counter stating that no documentary proof was produced by the petitioner. In W.P.(MD)No.10161 of 2007, though the claim was based on priority on the ground that she is a widow, in the counter affidavit, it was stated that she was already 38 years old and did not do well in the interview.
21.Though an unreported judgment of a division bench of this court in W.A.(MD)No.449 of 2007, dated 17.12.2009 in Karthikavalli Vs. The District Collector, Virudhunagar District and others was produced stating that even if distance rule is not available, the preference based on priority should be considered, in these cases, the claims made by the petitioners were not substantiated. In the counter affidavits, the contentions made by the petitioners were denied.
22.In the light of the above factual matrix and legal precedents cited above, all writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The District Collector, Ramanathapuram District, Ramanathapuram.
2.The Commissioner, Panchayat Union of Thirupullani, Thirupullani, Ramanathapuram District.