IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.10.2009 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.20094 of 2009 & M.P.Nos.1 and 2 of 2009 A.Karpagam .. Petitioner Vs. 1. The District Collector Thiruvannamalai Thiruvannamalai District 2. The Commissioner District Panchayat Union Thiruvannamalai District Thiruvannamalai 3. The Block Development Officer Thiruvannamalai Thiruvannamalai Taluk and District 4. The President Thandarai Village Thandarai Post Thiruvannamalai Taluk and District 5. K.Maheswari .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for records in order NA KA No.1/10574/08/SUT-1-94 dated 10.9.2009 on the file of the 1st respondent and quash the same and direct the 1st respondent to select and appoint the petitioner to the post of Nutrition Organiser by giving the benefit of priority as destitute widow by virtue of G.O.Ms.No.229, P&AR PER.R dated 7.4.1988. For Petitioner :: Mr.G.Rajan For Respondents :: Mr.R.Neelakandan, G.A. 1 to 4 O R D E R The petitioner was an applicant to the post of Noon Meal Organizer for which applications were called for by the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent Commissioner of Thiruvannamalai Panchayat Union. The notice calling for the applications in respect of the Panchayat Union Middle School at Thandarai Colony was declared as a general vacancy. Whereas the other vacancies were reserved for various other categories including candidates from Backward Class community, Scheduled Caste and Christian Backward communities. The qualification that is prescribed in the said notice was that the candidates should be within the age group of 25 to 40 and they should reside in the said village and if no qualified persons are available, even the people, who are residing within the locality within 10 Kms. from the said Village will be given preference. It is also stated that those who have passed SSLC or failed SSLC can apply. 2. The petitioner applied for the said post. She claims that she is a destitute women deserted by her husband. Ultimately when the petitioner was not appointed, she found that the 5th respondent was appointed to the said post. She also applied under the RTI Act to get the documents relating to her application and then she chose to file the present Writ Petition challenging the 5th respondent's appointment as Noon Meal Organizer in the Panchayat Union Middle School in Thandarai Colony. 3. The learned counsel for the petitioner raises three contentions. The first contention was that the 5th respondent was a Vice President of Thandarai Village. She being the member/Vice President of the Panchayat Union, she cannot be appointed. 4. In such context, the learned counsel for the petitioner referred to Section 34 of the Tamil Nadu Panchayat Act,1994, wherein it is stated that a person, who is a Village Administrative Officer or village servant or officer or servant of the State or Central Government is disqualified from contesting any post in the Village Panchayat. Therefore, the substance of the said provision is that if a person, who is a Noon Meal Organizer ipso facto Government servant should not continue in office. The vice versa also applies, namely if a person holds a post in the Village Panchayat, that person also cannot take up any post in the Government. 5. The second contention raised by the petitioner was that she being a destitute woman, she is entitled for preference in the employment. Therefore, reliance was placed upon G.O.Ms.No.395, P&AR Department dated 4.11.1993. In the said Government Order, the State Government had defined as to who can be a destitute widow. It is also stated that notwithstanding anything in the State and Subordinate Service Rules, the preference shall be given to destitute widows, who possess the qualifications prescribed for appointment to any post under the State Government by direct recruitment. https://hcservices.ecourts.gov.in/hcservices/ 6. The third contention raised by the petitioner was that since the 5th respondent had mentioned in the application as Vice President that might have influenced the selection authority. Therefore, her selection was tainted. This Court is not able to agree with any one of the contentions raised by the petitioner. 7. The first contention is that Section 34 of the Panchayat Act will apply. Inasmuch as the 5th respondent was Vice President of the Panchayat, she could not be a Noon Meal Organizer getting terminal benefits from the State Government. In this context, it must be noted that on notice from this Court, the 3rd respondent filed a written instructions dated 21.10.2009. 8. In the written instructions, it was stated that the 5th respondent got elected as a Ward Member and Vice President during October 2006. She tendered her resignation from the post of Member and Vice President on 11.9.2009. She was appointed as Noon Meal Organizer on 14.9.2009 by the Collector's proceedings dated 10.9.2009. The 5th respondent had also joined as Noon Meal Organizer on 14.9.2009. In the meanwhile, her resignation was accepted by the Panchayat by its Resolution dated 17.9.2009. Subsequent to the Resolution of the Panchayat, the vacancy was notified to the State Election Commissioner and the State Election Commissioner had ordered to conduct election of the Vice President on 2.11.2009. When the Ward Member's election will be conducted on the day fixed by the State Election Commission, copies in support of these facts are also enclosed along with the written instructions. 9. However, the learned counsel for the petitioner urged that on the date when the applications were called for and the interview was conducted and appointment order was sent by the District Collector, she was the Vice President of the Panchayat and she ought not to have been given the said post. 10. It must be noted that Section 34 of the Tamil Nadu Panchayat Act talks about disqualification. When a person is holding a a post either as Village Administrative Officer or officer or servant of the State or Central Government, he shall be disqualified for election as a member in a Village Panchayat. Therefore, the 5th respondent suffers disqualification from holding the post as Vice President or Ward Member. Even when the person suffers disqualification on account of holding the post of Vice President as mentioned under Section 34 of the Panchayat Act, Section 41 of the Panchayat Act provides the authority to decide such issue. Therefore, it is only outside the scope of this Court to consider https://hcservices.ecourts.gov.in/hcservices/ whether by accepting the post of Noon Meal Organizer, the 5th respondent suffers any disqualification. 11. It is not out of place to record the judgment of the Supreme Court that arose in the context slightly different from the facts mentioned herein in Manohar Nathurao Samarath vs. Marotrao and others reported in (1979) 4 SCC 93. An employee of the LIC Corporation was standing in a Panchayat election and the said election came to be challenged on the ground that as per the LIC Regulation, more particularly Regulation No.25(4), a LIC employee cannot stand in the election without the permission of the Chairman of the Corporation. Therefore, it was stated that the successful candidate being a LIC employee having contested the election without the permission of the Chairman suffered statutory disqualification on the ground that the LIC Regulations are statutory in character. Rebelling the said contention, the Supreme Court held that if at all the LIC Regulation can only be disciplinary not disqualificatory a person. While rejecting the said contention, the Supreme Court in paragraph 16 observed as follows: "16. There is a broader constitutional principle which supports this semantic attribution. The success of our democracy to 'tourniquet' excess of authority depends on citizen participation. An inert citizenry indifferent to the political process is an enemy of the Republic's vitality. Indeed, absolution thrives on inaction of the members of the polity. Therefore, activist involvement in various aspects of public affairs by as many as citizens as can be persuaded to interest themselves is a sign of the health and strength of our democratic system. Local self- government and adult franchise give constitutional impetus to the citizens to take part in public administration. Of course, this does not mean that where a plain conflict of interests between holding an office and taking part in the political affairs of government exists, a disqualification cannot be imposed in public interest. The rule is participation, the exception exclusion. Viewed from that angle, if a government servant or an employee of the LIC participates in local administration or other election it may well be that he may forfeit his position as government servant or employment, if dual devotion is destructive of efficiency as employee and be subject to disciplinary action a matter which depends on a given milieu and potential public mischief. I am not resting our decision on this general consideration but mention this persuasive factor as broadly supportive of our conclusion." https://hcservices.ecourts.gov.in/hcservices/ 12. In the present case, whether the 5th respondent suffers any disqualification for accepting the post of Noon Meal Organizer cannot be gone into by this Court sitting under Article 226 of the Constitution of India, unless it is routed through Section 41 of the Panchayat Union Act. It must also be noted that the nature of post held will also be gone into by the appropriate Government. 13. The Extra Departmental Agents are government servants holding a civil post and are entitled to the protection under Article 311(2) of the Constitution. The Supreme Court while dealing with Punjab State Election Commission Act, more particularly Section 11(g) of the Act providing for disqualification held that such a person, who is working as Gramin Dak Sewak (GDS) is disqualified from holding the Panchayat post. The said decision is taken in the case of Chet Ram vs. Jit Singh reported in 2008 AIR SCW 7842. In the present case, inasmuch as the 5th respondent is not holding the post of Member or Vice President of the Panchayat, this Court is not inclined to go into the question whether she suffers disqualification for holding the post of a Noon Meal Organizer. 14. The 2nd question that arose for consideration, whether as a destitute widow, she has to be preferred overlooking the claim of the other employees, placing reliance upon G.O.Ms.No.395 P&AR Department dated 4.11.1993, cannot be countenanced, since the said Government Order related to a Service under the State and the post of Noon Meal Organizer is purely covered by not any constituted service and Rules being framed under Article 309 of the Constitution. The post of Noon Meal Organizer is covered by executive orders of the Government and if any preference was to be given, it has to be indicated in the Notification. When all other things are being equal, preference can be given. In the present case, the post of Noon Meal Organizer in the Panchayat Union Middle School had been shown only as a 'General turn' and no other parameter is shown. Even otherwise, the Court has already held that such a preference can be given when other things are equal. Therefore, if at all any preference is to be given on the ground that the petitioner is a destitute woman, it is only the authority who can give preference, when all other qualifications are equal. This court is not inclined to interfere with the appointment of the 5th respondent. 15. The last contention that the 5th respondent had really induced the authorities by mentioning in the application that she was a Vice President and therefore the selection is vitiated also cannot be accepted. The selection is not made at the Block Development level. The candidates' list along with appropriate qualifications are sent to the Collector. It is only the Personal Assistant (NMP) https://hcservices.ecourts.gov.in/hcservices/ to the Collector who puts up the note and it is finally approved by the Collector. Therefore, whether the 5th respondent being a Vice President had induced the appointing authority is only a speculation. 16. In the light of the above, this Court is not inclined to interfere with the selection made by the 1st respondent and the appointment made in favour of the 5th respondent. Hence, the Writ Petition stands dismissed. No costs. The connected Miscellaneous Petitions stand closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ajr To 1. The District Collector Thiruvannamalai Thiruvannamalai District 2. The Commissioner District Panchayat Union Thiruvannamalai District Thiruvannamalai 3. The Block Development Officer Thiruvannamalai Thiruvannamalai Taluk and District 4. The President Thandarai Village Thandarai Post Thiruvannamalai Taluk and District 1 cc To Mr.G.Rajan, Advocate, SR.57206 1 cc To The Government Pleader, SR.57447 W.P.No.20094 of 2009 RSM(CO) SRA(6/11/2009) https://hcservices.ecourts.gov.in/hcservices/