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2011 DIGILAW 1259 (MAD)

Lalitha v. District Collector Thiruvannamalai

2011-03-07

N.PAUL VASANTHAKUMAR

body2011
Judgment :- 1. The writ petitioner challenges the appointment of the fifth respondent as Noon-Meal Organizer at Melvanniyanur Village in preference to herself only on the ground of proximity of residence. 2. It is well settled position that the appointment for the said post, which is a public employment, cannot be based on the residence of the candidate. The issue regarding preference based on the 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 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 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." 3. The said order was approved by the Division Bench in W.A.No.1707 of 2009 by the Division Bench (HLG, CJ and NPVJ) by judgment dated 1.12.2009. The said order was approved by the Division Bench 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 impugned order therein and held that the action of the respondents therein in selecting the candidates on the basis of residential parameter, without having any other distinguishing factor is violative of Article 16(2) of the Constitution of India and remitted the matter for fresh selection. 4. In view of the above judgments, the petitioner cannot claim preference over the fifth respondent based on proximity of residence. Hence, the writ petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.