IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.07.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE B.RAJENDRAN
Writ Appeal Nos.1022 & 1023 of 2010
Writ Appeal No.1022 of 2010:
J.Latha ... Appellant.
vs.
1.G.Jayasudha
2.The District Collector,
Tiruvallur District.
3.The Commissioner,
Tiruttani Panchayat Union,
Tiruttani. ... Respondents.
Writ Appeal No.1023 of 2010:
R.Sumathy ... Appellant.
vs.
1.A.Saritha
2.The District Collector,
Tiruvallur District.
3.The Commissioner,
Tiruttani Panchayat Union,
Tiruttani. ... Respondents.
Prayer: Writ Appeals filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.Nos.25183 & 25184 of 2009 dated 16.04.2010.
For Appellants
in both Appeals : Mr.S.Ramesh
For Respondents
in both Appeals : Mr.M.S.Palanisamy R1
Mr.M.Dhandapani R2 & R3
Spl. Government Pleader (W)
Common Judgment
These Writ Appeals have been filed against the order in W.P.Nos.25183 and 25184 of 2009 dated 16.04.2010 whereby the learned single Judge quashed the order of the 2nd Respondent-District Collector, Tiruvallur in Na.Ka.No.19131/08/NMP-2 dated 17.11.2009 appointing the Appellants as Noon Meal Organisers and directing the 2nd Respondent-District Collector, Tiruvallur to appoint 1st Respondent(s)-Jayasudha [Appellant in W.A.No.1022/2010] as Noon Meal Organisers in Melkasavarajapettai Panchayat Union Elementary School, Tiruttani and A.Saritha [Appellant in W.A.No.1023/2010] as Noon Meal Organiser in Balija street, Panchayat Union Elementary School, Tiruttani respectively.
2. Brief facts are that in G.O.Ms.No.78 Social Welfare noon Meal Scheme dated 30.06.2008, 46 Organiser posts have been allotted to Tiruvallur District. In the Proceedings of the 2nd Respondent-District Collector, Tiruvallur in Rc.No.19131/08/NMP2 dated 09.09.2008, the said posts allotted to Tiruvallur District have been redistributed to the Panchayat Unions and Municipalities in Tiruvallur District and instructions were issued to the Commissioner to send the selection list to Collectorate as per the norms and conditions. Two organiser posts have been allotted to Tiruttani Panchayat Union. One post to Panchayat Union Elementary School, Melkasavarajapettai and the other to Panchayat Union Elementary School, Balija street, Tiruttani.
3. In W.A.No.1022/2010, for the post of Organiser in Melkasavarajapettai, as per the instructions of the 2nd Respondent-District Collector, Tiruvallur, the Commissioner, Tiruttani Panchayat Union has received 12 applications for the post of Organiser in Melkasavarajapettai Panchayat Union Elementary School. Out of which, 6 applications have been rejected by the Commissioner, Tiruttani Panchayat Union on the ground of uneligibility of educational qualification and age. In respect of 6 candidates, interview was conducted on 29.09.2008 and the selection list was sent to the Collectorate by the Commissioner, Tiruttani Panchayat Union. The Commissioner, Tiruttani Town Panchayat has recommended the 1st Respondent-Jayasudha for appointing as Noon Meal Organiser. But the 2nd Respondent-District Collector, Tiruvallur had appointed the Appellant-Latha [W.A.No.1022/2010] in Melkasavarajapettai Panchayat Union Elementary School in G.O.Ms.No.918/BCWNMP & SW Department dated 03.11.1989.
4. Like wise in W.A.No.1023/2010, for the post of Organiser in Balija street, Panchayat Union Elementary School, Tiruttani, 25 applications have been received. Out of which, 4 applications have been rejected on the ground of uneligibility of educational qualification and age. Interview in respect of 21 candidates have been conducted on 29.09.2008 and selection list was sent to the Collectorate by the Commissioner, Tiruttani Panchayat Union. The Commissioner, Tiruttani Panchayat Union recommended the name of 1st Respondent-Saritha [W.A.No.1023/2010] for appointing as Noon Meal Organiser. For Balija street, Panchayat Union Elementary School, Appellant-Sumathi [W.A.No.1023/2010] was appointed as Organiser by the 2nd Respondent-District Collector in G.O.Ms.No.918/BCWNMP & SW Department dated 03.11.1989.
5. Appointments of Appellants were challenged by the 1st Respondent(s) in W.P.Nos.3723 & 3724/2009. By the order dated 06.08.2009, learned single Judge has set aside the order of appointment of the Appellants and the learned single Judge directed the 2nd Respondent-District Collector, Tiruvallur to consider the matter afresh and in the mean while protecting the interest of the Appellants by observing that Appellants shall not be disturbed till the final order passed by the 2nd Respondent-District Collector, Tiruvallur.
6. Second Respondent-District Collector considered the matter afresh and passed the order on 17.11.2009 in Na.Ka.No.19131/08/NMP-2 confirming his earlier order appointing the Appellants to the post of Noon Meal Organisers of Melkasavarajapettai Panchayat Union Elementary School, Tiruttani and Baljija street, Panchayat Union Elementary School, Tiruttani respectively. The order of the District Collector, Tiruvallur dated 17.11.2009 was challenged by the 1st Respondent(s) in W.P.Nos.25184/2009 and 25183/2009 respectively. The order of 2nd Respondent-District Collector, Tiruvallur was challenged on the ground that Appellant-Latha [W.A.No.1022/2010] is living in a village which is situated 16 kms away from Tiruttani and she is ineligible for appointment. Grievance of the 1st Respondent-Jayasudha [W.A.No.1022/2010] is that as per G.O.Ms.No.78 Social Welfare Noon Meal Scheme dated 30.06.2008, appointee must be the poor helpless deserted women or widows and appointee must be a resident of the village in which the Noon Meal Centre is situate, if not available within the Panchayat limits then person from near by villages if otherwise eligible may be appointed and then only persons from villages situate within 10 kms from the Panchayat can be considered and while so, Appellant-Latha who is residing 16 km away from the place of work came to be appointed ignoring the recommendation made by the Selection Committee.
7. Grievance of 1st Respondent-Saritha in W.A.No.1023/2010 is that Appellant-Sumathy who is residing at Ponthalakandigai village about 14 kms away from the place of work came to be appointed and the appointment of Appellant-Sumathy is in violation of Government Orders.
8. In both the cases, the Commissioner, Tiruttani Panchayat Union recommended the names of 1st Respondent(s) to be appointed as Noon Meal Organisers. Grievance of the 1st Respondent(s) is that 2nd Respondent-District Collector, Tiruvallur was not justified in ignoring the recommendation made by the Commissioner, Tiruttani Panchayat Union.
9. Learned single Judge held that 1st Respondent(s) are residing within the village where the Noon Meal Centre is situated whereas the residents of the Appellants are far away from the Noon Meal Centre i.e. about 10 or 15 kms away from the Noon Meal Centre. Observing that Appellants did not qualify the essential conditions mentioned in the proceedings, the learned single Judge quashed the proceedings of the 2nd Respondent-District Collector in Na.Ka.No.19131/08/NMP.2 dated 17.11.2009 and directed the 2nd Respondent-District Collector, Tiruvallur to appoint the 1st Respondent(s) as Noon Meal Organisers in Melkasavarajapettai Panchayat Union Elementary School and Balija street, Panchayat Union Elementary School, Tiruttani respectively.
10. Mr.S.Ramesh, learned counsel for Appellants submitted that the recommendation of the Selection Committee is only a recommendatory and the 2nd Respondent-District Collector, Tiruvallur being the appointing authority has powers to take a different view. It was further submitted that the rule of distance is only a guideline and the appointment of the Appellants in the impugned proceedings cannot be challenged under Article 226 of Constitution of India.
11. Mr.Palanisamy, learned counsel for 1st Respondent(s) contended that 2nd Respondent-District Collector, Tiruvallur has favoured the Appellants and choose to appoint them even though, they were not eligible for appointment. According to 1st Respondent(s), G.O.Ms.No.78 SWNMS dated 30.06.2008 clearly lays down that poor helpless deserted women of widows should be given preference. Further, the appointee must be a resident of the village in which the Noon Meal Centre is situate, if not available within the Panchayat limits then the person nearby the villages situate within 10 kms from the Panahcyat can be considered. Grievance of the 1st Respondent(s) is that Appellants are residing 10 and 14 kms respectively away from their place of work and they are not eligible to be appointed for the post of Noon Meal Organisers, because they do not qualify any one of the required conditions. Learned counsel mainly contended that when the Selection Committee made recommendation, 2nd Respondent-District Collector was not justified in deviating from the recommendation.
12. We have also heard Mr.Dhandapani, learned Special Government Pleader appearing for Respondents 2 and 3.
13. As per G.O.Ms.No.78 SWNMS dated 30.06.2008 read with Proceedings in Na.Ka.No.19131/2008/NMP2 dated 09.09.2008 the qualification for the post of Noon Meal Organiser are as under:-
@rj;Jzt[ gzpahsh;fspd; gzp epakdk; rhh;e;J filg;gpof;f ntz;oa tHpKiwfs; kw;Wk; bewpKiwfs;. jw;nghJ bjhptpf;fg;gl;Ls;s fhyp gzpapl';fspd; neuo epakdj;jpw;F jtwhJ filgpof;Fk;go Cuhl;rp xd;wpa Mizahsh;fSf;F mwpt[Wj;jg;gLfpwJ/
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(2)bgz;fspd; VH;ik epiyapYs;s Mjutw;w tpjitfs;. fztuhy; iftplg;gl;lth;fs; kw;Wk; cly; CdKw;wth;fSf;F Kd;Dhpik tH';fg;gLk;/
(3)cly; CdKw;wth;fSf;F 3 rjtpfpj ,l xJf;fPL bra;ag;gl ntz;Lk;/
(4),g;gjtpfSf;fhd taJ tuk;g[ 01/09/2008 md;W 25 taJ epuk;gpath;fshft[k; 40 taij flf;fhjth;fshft[k; ,Uj;jy; ntz;Lk;/
(5)bghJthf. muR Miz vz;/203 rK:f eyk; kw;Wk; rj;Jzt[ jpl;lj;Jiw ehs; 19/08/2005d;go tpz;zg;gjhuh; fhypahft[s;s rj;Jzt[ ikak; mike;Js;s Ff;fpuhkj;jpy; trpg;gtuhf ,Uj;jy; ntz;Lk;/ jFjpahdth; fpilf;fhj gl;rj;jpy; mnj Cuhl;rpia nrh;e;j mUfhikapy; cs;s gpw Ff;fpuhkj;jpy; trpg;gtuhf ,Uj;jy; ntz;Lk;/ mt;thWk; jFjpahd egh;fs; fpilf;fhj gl;rj;jpy; mt;t{uhl;rpia xl;oa[s;s 10 fp/kP/ Rw;wst[f;F kpfhky; gpw Cuhl;rpfspy; trpg;gtuhf ,Uj;jy; ntz;Lk;/
14. As per G.O.Ms.No.918/BCWNP & SWD dated 03.11.1989, the Selection Committee for the purpose of selection of candidates for Noon Meal Organisers in the Nutritious Meal Centres under the control of Town Panchayats are as under:-
i)
Personal Assistant (NMP) to the Collector of the District
- Chairman
ii)
Executive Officer of the Town Panchayat
- Member
iii)
District Social Welfare Officer concerned
- Member
iv)
District Town Panchayat Officer
- Member
15. In respect of appointment of Noon Meal Organiser for Melkasavarajapettai Panchayat Union Elementary School and Balija street, Panchayat Union Elementary School, Tiruttani, the Selection Committee/Commissioner, Tiruttani Panchayat Union [3rd Respondent] made the following recommendation:-
W.A.No.1022/2010 [W.P.No.25184/2009]:
S.No.
Name and Address
Distance from the locality to the centre wherein the post is
Date of Birth
Age
Educational Qualification
BC/MBC/SC/ST
(1)
(2)
(3)
(4)
(5)
(6)
(7)
3
J.Latha, W/o.Jeyaraman, East street, K.G.Kandigai village and Post, Tiruttani Tk.
10
28.06.78
30
10th fail
BC
7
J.Sudha, W/o.Jeyavelu, 40,Chinnakadambur, Mottur, Kasavarajapettai Post, Tiruttani Tk.
2
01.06.80
28
10th pass
BC
Other Qualifications
Organiser
Helper
Knowledge of Thirukkural
Knowledge of maintaining account for noon meal
Knowing to read & write Tamil
Physical Health
Social Status Married/Unmarried/Widow/deserted by husband
Remarks by the Commissioner
(8)
(9)
(10)
(11)
(12)
(13)
Yes
No
Yes
No
Deserted by husband evidence NIL
As she has failed in her 10th std, her knowledge of accounting is very less. Hence her application may be rejected.
Yes
Yes
Yes
Yes
NIL
She has been residing in the hamlet of the Panchayat in which the centre is located. Passed 10th std. Belongs to a very poor family. Hence her application is recommended.
W.A.No.1023/2010 [W.P.No.25183/2009]:
S.No.
Name and Address
Distance from the locality to the centre wherein the post is
Date of Birth
Age
Educational Qualification
BC/MBC/SC/ST
(1)
(2)
(3)
(4)
(5)
(6)
(7)
4
A.Saritha, W/o.Seenivasulu, No.4, Nakkeeran street, Senkunthar Nagar, Tiruttani
Local
19.06.76
32
10th fail
OC
12
R.Sumathi, W/o.K.Rajendran, Ponthalakandigai village, V.K.R.Puram, Tiruttani Tk.
14
25.06.76
32
10th fail
BC
Other Qualifications
Organiser
Helper
Knowledge of Thirukkural
Knowledge of maintaining account for noon meal
Knowing to read & write Tamil
Physical Health
Social Status Married/Unmarried/Widow/deserted by husband
Remarks by the Commissioner
(8)
(9)
(10)
(11)
(12)
(13)
Yes
Yes
**
Yes
NIL
Allotted to other community knowledge of education, maintenance of account present, she belongs to a very poor family she may be selected.
No
No
Yes
No
NIL
Hails from another Panchayat 14 km away from the centre Hence application may be rejected.
16. Even though Selection Committee selects the candidates, final approval of District Collector concerned should be obtained before issuance of appointment orders. As per G.O.Ms.No.918/BCWNP & SWD dated 03.11.1989, the District Collector being the appointing authority examine the panel and grant approval to the recommendation of the Selection Committee. The Selection Committee has made recommendation recommending the 1st Respondent(s) viz., Jayasudha and Saritha for being appointed as Noon Meal Organisers of Melkasavavarajapettai Panchayat Union Elementary School and Balija street, Panchayat Union Elementary School, Tiruttani respectively. But the 2nd Respondent-District Collector has chosen to appoint the Appellants as Noon Meal Organisers to Melkasavarajapettai Panchayat Union Elementary School and Balija street, Panchayat Union Elementary School, Tiruttani respectively.
17. Laying emphasis upon the words “…. final approval of the Collector…..” in G.O.Ms.No.918 BCWNP & SWD dated 03.11.1989,the learned counsel for 1st Respondent(s) mainly contended that when the Selection Committee has made recommendation to the District Collector recommending the names of 1st Respondent(s), the District Collector was obligated to accept the recommendation of the Selection Committee and approve the same. Acceptance of the abovesaid contention would amount to taking away the discretion of the District Collector/Appointing Authority in appointing a suitable candidate. Being the head of District administration, the appointing authority should have leverage in exercising discretion in selecting the suitable candidate. Mere use of the expression “final approval of the District Collector” in G.O.Ms.No.918 BCWNP & SWD dated 03.11.1989 does not mean that grant of approval by the District Collector is automatic. It is pertinent to note that Selection Committee not merely sends name of one candidate whose name has been recommended; but the entire panel of the candidates with necessary details and remarks of the Selection Committee are sent to the 2nd Respondent-District Collector to enable the 2nd Respondent-District Collector to apply the mind in granting the approval and by selecting the suitable candidate. Even though, the expression is used “….. final approval of the District Collector…..”, in our considered view, the recommendation of the Selection Committee is only recommendatory in nature and the District Collector is not obligated to affix his seal of approval to all recommendations. However when the 2nd Respondent-District Collector takes a different view, it is necessary for the 2nd Respondent-District Collector to record reasons. We do not find any such resonings recorded by the 2nd Respondent-District Collector for taking a different view.
18. Grievance of the 1st Respondent(s) is that Appellants are residing 10 and 14 kms away from the place where Noon Meal Centre is situated. Earlier, by the order dated 06.08.2009 in W.P.Nos.3723 & 3724/2009, the matter was remitted to the District Collector, Tiruvallur to afford opportunity to both parties and consider the matter afresh. In the impugned order passed by the District Collector, Tiruvallur dated 17.11.2009, we do not find any such opportunity being given to the 1st Respondent(s). While confirming the earlier order of appointment, 2nd Respondent-District Collector, Tiruvallur does not seem to have recorded any reasonings.
19. There is no rule or regulation brought to our notice requiring the 2nd Respondent-District Collector to record reasons. However, when the Selection Committee has recommended the names of 1st Respondent(s) and made specific remarks that Appellants are residing 10 and 14 kms away from the place where Noon Meal Centre is situated and that their applications may be rejected, it is required the 2nd Respondent-District Collector, Tiruvallur to record reasons for taking a different view from the recommendation of the Selection Committee. In fact, earlier the matter was remitted to the 2nd Respondent-District Collector, Tiruvallur to afford opportunity to both the parties and consider the matter afresh. But the order of 2nd Respondent does not reflect any opportunity being afforded to 1st Respondent(s). While setting aside the order of 2nd Respondent-District Collector, Tiruvallur, learned single Judge was not right in issuing a positive mandamus directing the 2nd Respondent-District Collector, Tiruvallur to appoint the 1st Respondent(s) as Noon Meal Organisers. We do not agree with such a view taken by the learned single Judge issuing positive mandamus and the same is liable to be set aside.
20. In the result, the order of learned single Judge in W.P.Nos.25184 & 25183/2009 are set aside and both the Writ Appeals [W.A.Nos.1022 & 1023/2010] are allowed. The matter is remitted back to the 2nd Respondent-District Collector, Tiruvallur for fresh consideration.
Both Appellants and 1st Respondent(s) shall appear before the 2nd Respondent-District Collector, Tiruvallur on 09.08.2010.
2nd Respondent-District Collector, Tiruvallur shall afford reasonable opportunity to both the Appellants and 1st Respondent(s) to place all the relevant facts along with relevant documents for consideration of 2nd Respondent pertaining to selection at the relevant time.
Since the Appellants in both the Appeals viz., J.Latha and R.Sumathy are continuing in the post of Noon Meal Organiser by virtue of their appointment, they shall not be disturbed till the final order is passed by the 2nd Respondent-District Collector, Tiruvallur.
2nd Respondent-District Collector, Tiruvallur shall pass final orders within a period of four weeks after the appearance of both the Appellants and 1st Respondent(s) on 09.08.2010. Consequently, connected M.Ps. are closed. In the circumstances of the case, there is no order as to costs.
[R.B.I.,J] [B.R.,J]
16.07.2010
Index: Yes/No
Internet: Yes/No
bbr
To
The District Collector,
Tiruvallur.
Note:-
Issue order copy on 19.07.2010
R.BANUMATHI,J
and
B.RAJENDRAN,J
bbr
Common order
in
W.A.Nos.1022 & 1023/2010
16.07.2010