Judgment : The matter came up on 3.7.2007. Mr.B.Vijaya Karthikeyan, learned counsel for the petitioner argued that the petitioner claims to be considered on preferential basis since he was an Orphan, which was rejected by the impugned order without any basis. Therefore this Court may direct the respondent Transport Corporation to provide an employment to the petitioner as Conductor on a preferential basis. 2. According to the petitioner, he belong to Most Backward class category and he has a Conductor license and he has also registered his name in the Employment Exchange. His name was sponsored for the post of Conductor by the Employment Exchange. He has also attended the interview held on 16.4.2007. Thereafter, he has not been given any appointment, which forced him to send a representation stating that his case should be considered under the category of ‘Orphan and he must be a preference by the respondent Corporation. 3. Therespondent/Corporation gave a reply stating that in the interview conducted there is no such preference given to any Orphans and therefore he cannot be given any employment on that basis. 4. The learned counsel on 3.7.2007 submitted that the Government Order in this regard is very clear. That under G.O.M.S.No.188, Personnel and Administration Reforms Department dated 28.12.1976 it has been informed that priority for employment through Employment Exchange will be given to heirs (son/daughter) who have lost both father and Mother and an explanation was also given to the said para, read as follows: "Heirs of those who have lost both father and mother staying and studying in the orphanages conducted by the private and Government Institutions are eligible for priority based on the certificate issued by the above institutions: Village persons who have lost both father and mother but not joined in the recognized orphanages are also eligible for priority based on the certificate issued by the Revenue Tahsildar." 5. The learned counsel has also stated that the said Government Order was once again reiterated by G.O.M.S.No.8, P & A Department, dated 10.1.2000. Therefore, he is eligible for preferential appointment. He has also produced a certificate issued by the Tahsildar, Musiri, dated 17.8.2000 stating that the petitioner has lost his parents. But in the affidavit nothing is mentioned as to when the petitioner became an orphan, and under what circumstances he has been brought up. Therefore, he is eligible for preferential appointment. He has also produced a certificate issued by the Tahsildar, Musiri, dated 17.8.2000 stating that the petitioner has lost his parents. But in the affidavit nothing is mentioned as to when the petitioner became an orphan, and under what circumstances he has been brought up. To claim that someone is an orphan and also to get preferential right of employment in a public Sector Corporation, mere description that a person is an orphan is not enough. The explanation appended to the entry by the Government, in the order referred to above will show that a person who suffers at an early age about the loss of both the parents and struggling to come up in life or it must be persons who have brought up in orphanage should be given preference. 6. However, when a preference is claimed in a public employment the source of right of the individual will have to be tested in the light of the Article 16 of the Constitution of India. Unless and until the petitioners category is brought under Article 16(4) he cannot claim any constitutional preference over any employment. 7. In fact, whether the various categories which are appended in the Government Order referred to above are entitled in any preference came up for consideration before a larger Bench of this Court. The Judgment of this Court in M. Aarthi (Minor) etc. & Others v. State of Tamil Nadu and Others (2003) 1 MLJ 1 : 2002 WLR 898. In that judgment the Larger Bench was concerned about the preference given to the children born out of inter-caste marriage and it was held that such a preference will, be unconstitutional and not traceable to Articles 15 and 16 of the Constitution of India. It was also held in the said judgment that so far as the employment in post in the service under the State are concerned the said issue is covered by the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (45 of 1994). 8. In the light of the said legislation, the larger bench held that: “19. 8. In the light of the said legislation, the larger bench held that: “19. The executive power, of the State under Article 162 of the constitution is co-extensive with the legistative power and when; the field of law is occupied by a legislative Act, the exercise of executive power is not available. There is no dispute about the states power to provide reservation even by executive order under Article 162 of Indian Constitution. But such power can be exercised only in the absence of a legislative Act of Course, if an aspect is not covered by the legislative Act, then the executive power can be resorted to. To put it precisely, if the power of observation is exhausted under Tamil Nadu Act 45 of 1994, then no power under Article 162 of the Constitution. The special observation, which has been provided for the children born of intercaste marriage is one traceable to Article 15(4) on the ground of social and educational backwardness. That power has already been exhausted by the State by enacting the Tamil Nadu, Act 45 of 1994. We are unable to accede to the contention that the special reservation provided for the children of inter-caste marriage is not traceable to Article 15(4) but to Article 15(1) or Article 14 or Preamble of the Constitution. The very basis of reservation for inter-caste children is based on their social and educational backwardness and is only traceable to Article 15(4) and when the State has already exhausted that power of reservation by enacting Act 45 of 1994, there is no other reason for invocation of Article 162 of the Constitution. In fact the state did not even invoke such power under Article 162 of the Constitution. Obviously, for the reason of its exhaustion of power under Tamil Nadu Act 45 of 1994. A reading of G.O.Ms.No 477, Social Welfare Department, dated 27.6.1975 on the basis of which this special reservation for the children born of inter-caste marriage has been provided, makes it clear that the state did not venture to carve out any special reservation as pleaded by the parties.” 9. After setting out the legal position, the Bench also observed that such observation will have to come within the over all reservation provided by the State. Therefore, no special category can be carved out. After setting out the legal position, the Bench also observed that such observation will have to come within the over all reservation provided by the State. Therefore, no special category can be carved out. Further, in the same paragraph which further observed as follows: “Reservations of the several kinds like widows deserted women and any candidate, whose parent has suffered for the case of development of Tamil and contributed towards the protection etc., are quite untenable. They do not have any constitutional or legal sanction. But we are not dwelling on that as they have not been questioned here and as the admissions to that category have already been completed. Other than the reservation in Tamil Nadu Act 45 of 1994, what is permissible is only for physically handicapped, Eminent Sportsmen, children of freedom fighters and children of ex-servicemen being horizontal reservation and not vertical. The State has to bear this in mind in future." 10. Even though, the Bench did not deal with the question of orphans as a special category the observation found in the last portion of the paragraph 19 (cited supra) will cover the case of Orphans because the Court has also held that any observation other than Physically Handicapped, Eminent Sportsmen, children of freedom fighters and children of Ex-serviccmen. The rest of the reservation will have to be come with in the vertical reservation provided by the State. Therefore, the preferential consideration claimed by the petitioner is without any legal or constitutional basis and there is nothing wrong in the respondent informing the petitioner that the Orphan cannot be given any preference in the public employment. 11. Hence the writ petition is dismissed. Consequently connected M.P.Nos.1 and 2 of 2007 are also dismissed. Hence is no order as to costs. Writ petition dismissed.