IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.04.2011 CORAM THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR Writ Petition No.9581 of 2011 & M.P.Nos.1 and 2 of 2011 S.Mageswari D/o.R.Srinivasan ... Petitioner vs. 1.The Secretary to Government Social Welfare and Noon Meal Scheme Department Government of Tamil Nadu Fort St.George Chennai 2.The District Collector Villupuram Villupuram District 3.The Block Development Officer Thirukovilur Panchayat Union Thirukovilur Villupuram District ... Respondents Writ petition filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus calling for the records connected with the impugned G.O.(Ms).No.163 dated 18.08.2010 passed by the first respondent and quash the same and further direct the second respondent to appoint the petitioner for the post of organizer in any of the Noon Meal Centres at Villupuram District. For Petitioner : Mr.S.Sivakumar For Respondents : Mr.B.Vijay, G.A., for R1 and R2 R3 – Served – No Appearance https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is for issuance of a writ of Certiorarified Mandamus calling for the records connected with the impugned G.O.(Ms).No.163 dated 18.08.2010 passed by the first respondent and quash the same and further direct the second respondent to appoint the petitioner in the post of organizer in any of the Noon Meal Centres at Villupuram District. 2. It is the case of the petitioner that she had applied for the post of organizer in the Noon Meal Centre at Mudalur to the third respondent on 04.10.2010. It is stated that in view of the G.O.Ms.No.163, dated 18.08.2010, which states that the distance between the residence of the candidates applying for the post of organizer and the noon-meal centre must be within three kilometres, the case of the petitioner was not considered, since the petitioner is residing in Thirukovilur which is 6 K.M away from Mudalur, the place for which the petitioner had applied. Having affected by the said distance rule, the petitioner has challenged the said clause in the Government Order. The learned counsel for the petitioner submitted that the said presumption of three Kilometres distance from the residence is already held illegal by this Court. The learned Government Advocate was unable to dispute the said submission. The relevant clause in the impugned G.O reads as follows: "The distance between the place of appointment and the residence of the applicant should be within three kilometres. (Panchayat – Village – Revenue Village need not be taken into account)." 3. The issue regarding preference based on the residence in the very same village was already considered by this court in the decision in P.VASANTHA AND OTHERS v. THE DISTRICT COLLECTOR, DINDIGUL DISTRICT, DINDIGUL AND OTHERS (2007(6) MLJ 402) wherein it is held that giving of such preference based on residence in the same village is in violation of Article 16(2) of the Constitution. In paragraphs 17 and 18 of that judgment, 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 https://hcservices.ecourts.gov.in/hcservices/ 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 sale 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." 4. The said order was approved in W.A.No.1707 of 2009 by the Division Bench (HLG, CJ and NPVJ) by judgment dated 1.12.2009. Following the said decisions, a Division Bench (NPVJ & RPSJ) of the Madurai Bench of this Court in W.A.(MD) No.966 of 2010 dated 2.3.2011 set aside the order of selection of a candidate and held that the action of the respondents therein in selecting the candidate on the basis of residential parameter alone, without having any other distinguishing factor is violative of Article 16 (2) of the Constitution of India and remitted the matter for fresh selection. 5. In view of the above referred judgments, the portion of G.O.Ms.No.163, dated 18.08.2010 which speaks about the three kilometre distance between the residence of the candidates applying for employment and the noon meal centres is quashed and the second respondent is directed to consider the claim of the petitioner during the next recruitment on its own merits and in accordance with law. The first respondent is directed to intimate about this decision to all the District collectors and all the persons who are in-charge of selecting the noon-meal organizers / Assistants / Cooks forthwith. https://hcservices.ecourts.gov.in/hcservices/ 6. The writ petition is disposed of accordingly. Consequently, connected miscellaneous petitions are closed. However, no order as to costs. pgp Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government Social Welfare and Noon Meal Scheme Department Government of Tamil Nadu Fort St.George Chennai 2.The District Collector Villupuram Villupuram District 3.The Block Development Officer Thirukovilur Panchayat Union Thirukovilur Villupuram District + 1 cc to Mr. S. Sivakumar, Advocate SR No.27828 + 1 cc to Government Pleader, SR No.27427 MBS(CO) SR/4.5.2011 W.P.No.9581 of 2011 https://hcservices.ecourts.gov.in/hcservices/