Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 3413 (MAD)

V. Kasthuri v. District Collector, Vellore

2013-09-20

D.HARIPARANTHAMAN

body2013
Judgment : 1. The first respondent issued public notice dated 23.12.2008 calling for applications for 111 posts of Noon-Meal Organizer and another 111 posts of Assistant to the Cook in Vellore District. 2. The petitioner as well as the fourth respondent applied for the post of Noon-Meal Organizer in the middle school of Simmanapudur Panchayat Union in Vellore District. Thereafter, the Commissioner of Panchayat-the third respondent herein, sent interview letter dated 12.01.2009 to the petitioner to appear for the interview for the said post on 21.01.2009. The fourth respondent was also sent the interview card and apart from them, one more person by name, Ms.Senthamizhselvi, also appeared for the interview. 3. The fourth respondent was selected and issued with the appointment order dated 21.07.2009 to the post of Noon-Meal Organizer passed by the first respondent. The petitioner filed this writ petition to quash the aforesaid order of the first respondent dated 21.07.2009. 4. The allegation made in the affidavit filed in support of this writ petition is that the respondents 1 to 3 colluded with the fourth respondent and on the basis of such collusion, the fourth respondent was given appointment order to the prejudice of the right of the petitioner. 5. A counter-affidavit was filed by the third respondent. The third respondent stated in the counter that the fourth respondent answered all the questions in the interview while the petitioner did not answer all the questions. Hence, the Interview Officer recommended the name of the fourth respondent for appointment to the post and the first respondent, based on the same, issued the appointment order dated 21.07.2009 and she joined on 01.08.2009. It is further stated that the petitioner is residing at Simmanapudur, while the fourth respondent is residing at Kodiyur village. Both villages, namely, Simmanapudur and Kodiyur come under the jurisdiction of Simmanapudur Panchayat. It is also stated that if preference to a public employment is solely based on the residence of the candidate to the exclusion of the other villages, the same will be hit by Article 16(2) of the Constitution. 6. An Additional affidavit is filed by the petitioner making totally new grounds. It is stated that the fourth respondent is having two ration cards one ration card shows that she is resident of Kodiyur which is her parental home. 6. An Additional affidavit is filed by the petitioner making totally new grounds. It is stated that the fourth respondent is having two ration cards one ration card shows that she is resident of Kodiyur which is her parental home. Another ration card shows that she resides at Senghazhunipatti village, Periya Kottankulam, Utthankarai Taluk, Krishnagiri District, where her husband is living. It is also stated that the fourth respondent is also having two voter identity cards, which also show as if she is residing both at Kodiyur as well as Senghazhunipatti. Hence, her appointment is bad. 7. A counter-affidavit was filed by the fourth respondent stating that she is living only two kilometers away from the school. Hence, she cannot be excluded for consideration for appointment. In the advertisement, it is stated that preference shall be given to the deserted persons. She is a deserted person and produced a certificate to that effect. The certificate was issued by the revenue authority. Hence, among the three, who attended the interview, she was selected and appointed. The fourth respondent also stated that her village Kodiyur comes under Simmanapudur Panchayat. The children of the Kodiyur village are going to the school at Simmanapudur, which is two kilometers away from Kodiyur. Hence, there is no illegality in her appointment. 8. Heard both sides. 9. The learned counsel for the petitioner vehemently contended, based on the typed set that has been produced, that there are two ration cards and two voter identity cards in the name of the fourth respondent. According to him, one ration card shows that she is the resident of Kodiyur village and another card shows that she is the resident of Senghazhunipatti village, which is her husband's place. Likewise, among two voter identity cards, one shows that she is the resident of Kodiyur and another shows that she is the resident of Senghazhunipatti. Hence the appointment of the fourth respondent is bad. 10. The learned counsel further submitted that as per the notification issued by the first respondent, the candidate should reside within the same village of Simmanapudur. Hence, the fourth respondent is not eligible for appointment. 11. Hence the appointment of the fourth respondent is bad. 10. The learned counsel further submitted that as per the notification issued by the first respondent, the candidate should reside within the same village of Simmanapudur. Hence, the fourth respondent is not eligible for appointment. 11. On the other hand, learned counsel for the fourth respondent submitted that Kodiyur village comes under the Simmanapudur village panchayat and the distance of the school, in which, the petitioner is appointed as Noon-Meal Organizer, is just two kilometers away from the residence of the fourth respondent. It is further stated that public notice shall be issued with certain conditions, but the same shall not exclude persons residing in the nearby place to apply, otherwise, the same would be hit by Article 16 of the Constitution of India. 12. I have considered the submissions made by either side. 13. It is not in dispute that the fourth respondent is a married person. According to the fourth respondent, she was married to a person, but she was deserted by her husband. Her name could be found place in the ration card of the Senghazhunipatti village, where her husband resides. But she was deserted by her husband. It is not disputed by the petitioner that the parental place of the fourth respondent is Kodiyur. It is also not disputed that Kodiyur village comes under Simmanapudur village panchayat and the children of the Kodiyur village are going to the middle school at Simmanapudur. In these circumstances, there is no illegality in appointing the fourth respondent to the post of Noon-Meal Organizer in the middle school of Simmanapudur Panchayat Union in Vellore District. 14. The judgment relied on by the learned counsel for the fourth respondent in P.Vasantha and Others V. District Collector, Dindigul, Dindigul and Others, reported in (2007) 6 MLJ 402 makes it clear that no one can claim appointment based on their residence and any appointment solely based on residence would be hit by Article 16 (2) of the Constitution of India. 15. Paragraph 17 of the said judgment in (2007) 6 MLJ 402 isextracted hereunder: "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. 15. Paragraph 17 of the said judgment in (2007) 6 MLJ 402 isextracted hereunder: "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." 16. In view of the same, the writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.