IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.4451 of 2010 and M.P.NOS.1 AND 2 OF 2010 R.Muniammal .. Petitioner Vs. 1.The District Collector, Cuddalore District, Cuddalore. 2.The Block Development Officer (B.P.) Cuddalore Panchayat Union, Cuddalore District. 3.S.Vimala .. Respondents This writ petition 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 order of the first respondent in Na.Ka.PT 1/9516/08 dated 6.2.2010 and quash insofar as the third respondent concerned, consequently, to direct the first respondent to appoint the petitioner as Noon meal Helper at Panchayat Union Elementary School, Kuttiyangkuppam Village, Malayaperumal Agaram Panchayat, Cuddalore District and confer all consequential benefits. For Petitioner : Mr.M.Hidayathulla Khan For Respondents : Mr.N.Senthilkumar, AGP (Takes notice for R1) - - - - ORDER The petitioner has come forward to challenge the order, dated 6.2.2010 appointing the third respondent as Cook Assistant in the Noon Meal Centre at the Panchayat Union Primary School at Kuttiyankuppam Village, Malayaperumal Agaram Panchayat, Cuddalore District. 2.The petitioner claims that she is a permanent resident of Kuttiyankuppam Village, Malayaperumal Agaram Panchayat, Cuddalore District. She belonged to Most Backward community and she is a widow. Her husband died during January, 2007. When a notification was called for for the post of Cook Assistant in the Centre attached to the Panchayat Union Primary School at Kuttiyankuppam, the petitioner sent her application. The petitioner claims that by https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.203, Social Welfare and Noon Meal Department, dated 19.8.2005, the Government prescribed guidelines for filling up various posts in the noon meal centre. One such condition prescribed therein was that whenever vacancy arises in the Centre, a person qualified in the hamlet in which the Centre was located should be appointed. Only when there is no such person available, a person in the neighbouring hamlet can be selected. Even thereafter, if no qualified persons are available, then any qualified person within the radius of 10 Kms. of range can be appointed. The said order was circulated by the District Collector vide his proceedings, dated 10.9.2005. Therefore, the petitioner states that while she is the native of the same village, the third respondent lives 4-1/2 Kms. away from the centre. Out of the 19 candidates, whose names were considered, she is the ony local candidate and she should have been preferred. But the appointment made in favour of the third respondent was illegal as admittedly she lives 4-1/2 Kms. away from the centre. 3.In so far as the age of the third respondent is concerned, it was stated that her date of birth was 4.6.1974 and only 34 years old. She is well within the zone for consideration. She also belonged to Most Backward community. She is also a widow as seen from the tabulated statement filed by the petitioner. 4.Mr.M.Hidayathulla Khan, learned counsel for the petitioner strenuously contended that once the Government prescribed guidelines for filling up the post, the authorities must strictly go by the guidelines and cannot deviate from it. If the guidelines are applied, the post should have come to the petitioner and not to the third respondent, who lives 4-1/2 Kms. away. The petitioner little realised that the same guidelines have been considered by this court in a number of cases. The courts have held that the rule of requiring residence must satisfy Article 16(2) of the Constitution. Therefore, it cannot be considered to be a qualification, but one of preference. Ultimately if the authorities after the interview consider that two candidates are similarly placed, then the question of preference will arise. 5.The learned counsel for the petitioner repeatedly contended that the Government Order must be given full play and it cannot be interpreted by this court. This court is unable to agree with the said contention. The said G.O. has come up for consideration before this court vide its decision in P.Vasantha and others Vs. District Collector, Dindigul District, Dindigul and others reported in 2007 (6) MLJ 402. This Court in paragraphs 16 to 18 had observed as follows: "16.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 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 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 https://hcservices.ecourts.gov.in/hcservices/ times, it may also result in violating the communal roster being followed." 6.As already held if such an interpretation is not adhered to, the guidelines will violate the Article 16(2) of the Constitution. It is only to give a constitutional status to the order, the court had read down those guidelines. Further only then, the rule of reservation can be made applicable. More often than not the Centres are always located in the hamlets where caste hindus are in a majority and the hamlets inhabited by Dalits (which are ironically called Colonies) are away from the village. 7.It will not be out of place to note that the Supreme Court had entertained a Public Interest Litigation filed by the Peoples Union for Civil Liberty (PUCL) represented by its Rajasthan unit in April, 2001. They sought legal enforcement of Right to Food. The said matter was taken on file as WP(C)No.196/2001, which case is now to be known as Right to Food case. In that case, the Supreme Court has been issuing several directions (more than 40 interim orders) from time to time. By its order, dated 29.2.2002, the Supreme Court has held that the Chief Secretaries of all concerned States shall be held responsible for any persistent default in compliance of its order. By an order, dated 1.5.2006, the Supreme Court has held that the High Courts can entertain writ petitions on the question of right to food and can deal with it appropriately. In one of its interim order, (which is binding on the State Government) issued on 07.10.2004, the Supreme Court held that every efforts should be made that all Scheduled Caste and Scheduled Tribes hamlets/habitation in the Country to have Anganwadi centres as early as possible. In the interim order, dated 20.4.2004, the Supreme Court held that in any appointment of Cook and Helper, preference must be given to dalits, scheduled caste and scheduled tribes. If these conditions are to be enforced, then certainly the order of the Government cannot be read in isolation. The distance rule cannot be operated defying the mandate of Article 16(2) read with Supreme Court's guidelines. 8.In fact, in an elaborate judgment in Unemployed Secondary Grade Teachers Welfare Association Vs. State of Tamil Nadu, represented by its Secretary, Department of School Education, Chennai and another reported in 2008 (4) L.L.N. 560, a division bench of this court went into the scope of candidates being selected on being sponsored by the District level employment exchange. It was held that any rule of residence must pass the test of Article 16(2) of the Constitution. 9.It must be noted that as the society exists today fractured by caste divisions and the dalits being kept away from the main hamlets. If the distance rule is considered as a qualification, then the dalits who are underprivileged can never compete for getting appointed to such Centres in the main hamlet. Therefore, if a post filled up by selection process preceded by an interview and if the authority comes to a conclusion that if two candidates are approximately equal near, then the distant rule can also be pressed into service. https://hcservices.ecourts.gov.in/hcservices/ 10.It must also be noted that the same G.O. while gives priority list of categories do not state the distance rule should be strictly adopted. In the present case, both the petitioner and the third respondent are widows. After an interview, the third respondent was selected. Hence no exception can be taken. The attempt made by the counsel for the petitioner to argue all over again the same issue when the same has been settled by this court in a number of writ petitions is most unfortunate. In fact, the State Government had also issued G.O.Ms.No.78, Social Welfare and Noon Meal Department, dated 30.6.2008 emphasising the need to fill up posts on the basis of communal roster. 11.The writ petition is misconceived and bereft of reason. In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vvk To 1.The District Collector, Cuddalore District, Cuddalore. 2.The Block Development Officer (B.P.) Cuddalore Panchayat Union, Cuddalore District. +1 C. C to Mr. M. Hidhaya Thullah Khan Advocate Sr.No.14902 W.P.NO.4451 of 2010 04.03.2010 RSN – C.O https://hcservices.ecourts.gov.in/hcservices/