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2020 DIGILAW 2276 (MAD)

S. Sivaji Ganesan v. District Revenue Officer

2020-12-01

A.P.SAHI, SENTHILKUMAR RAMAMOORTHY

body2020
JUDGMENT : A.P. SAHI, C.J.:— These intra-court appeals have been preferred by a candidate who came to be selected and appointed as Grama Kavalar (Village Assistant) for T. Andipatti Village, Tirumangalam Taluk, Madurai District. The appointment was upset by the authorities and confirmed by the learned Single Judge, hence these appeals. 2. On 30.6.1992, the post of Village Assistant fell vacant and the Tahsildar, Tirumangalam Taluk, notified the said vacancy announcing that the last date for submission of applications would be 28.7.1992. The appellant and the fourth respondent had applied and their interview was conducted on 5.8.1992. The Tahsildar, on an assessment of the respective candidatures and the qualifications possessed, finally selected and appointed the appellant against the post vide order dated 26.8.1992. 3. Aggrieved, the fourth respondent preferred an appeal before the Revenue Divisional Officer, who, vide order dated 13.1.1993, allowed the same on the ground that the status of residence as provided for in Rule 5(2) of the Tamil Nadu Village Servant Service Rules, 1980 (for brevity, “the 1980 Rules”) appear to have been overlooked and, therefore, remitted the matter before the Tahsildar for fresh consideration. 4. Aggrieved, the appellant preferred a revision petition before the District Revenue Officer, who, vide order dated 7.5.1993, upheld the order passed by the Revenue Divisional Officer. 5. Aggrieved, the appellant preferred Original Application No. 3161 of 1993 before the Tamil Nadu Administrative Tribunal along with a request for stay. 6. It is evident from the order of the District Revenue Officer dated 7.5.1993 that during this period of litigation, the appellant continued to function on the post in question. The Administrative Tribunal passed an interim order on 3.6.1993 staying the operation of the orders passed against the appellant. The said interim order came to be confirmed and extended until further orders on 21.6.1993. 7. The fourth respondent put up a contest urging that the fourth respondent had already an experience of three months of working as a temporary Grama Kavalar and that it was only on the physical appearance of the appellant that the Tahsildar considered him to be a better candidate. 7. The fourth respondent put up a contest urging that the fourth respondent had already an experience of three months of working as a temporary Grama Kavalar and that it was only on the physical appearance of the appellant that the Tahsildar considered him to be a better candidate. He also urged that the authorities have found, after going through the records and on enquiry, that the appellant was not a resident of Karisalpatti Village, but a resident of Thayaneri Village, which is a hamlet of Melakottai Village and, therefore, the appellant not being a resident of Andipatti Village, he could not have been appointed. This basic requirement was not possessed by the appellant and, therefore, he was totally ineligible for being considered for appointment. 8. The Original Application before the Tribunal stood transferred to the High Court after the Tribunal became nonfunctional and the same stood converted as W.P. No. 14290 of 2006. The matter was considered long thereafter, and on 17.4.2009, a learned Single Judge dismissed the writ petition in absentia, as the learned counsel for the petitioner reported no instructions. Relying on paragraphs (9) and (10) of the reply affidavit filed before the Tribunal, which narrated the aforesaid stated deficiencies about the appellant not being a resident of the village, the learned Single Judge dismissed the writ petition. 9. On the dismissal of the writ petition, it appears that the said order was finally brought to the notice of the Tahsildar, who passed an order on 27.7.2009 relieving the appellant from service by dismissal from the post of Village Assistant. 10. It appears that on the receipt of this order the appellant immediately approached this Court by filing Review Application No. 146 of 2009 with an application for delay condonation. The review application was dismissed by a detailed judgment holding that since there is no error apparent on the face of record, the review application could not be entertained. The learned Single Judge, however, relied on other judgments to indicate that the power of judicial review can be exercised only with regard to the decision making process and not with the decision arrived at by authority. 11. Aggrieved by the said orders, the present appeals came to be preferred during April, 2010 and after condonation of delay and other relevant factors, the appeals were numbered and entertained and came to be listed for hearing before us. 12. 11. Aggrieved by the said orders, the present appeals came to be preferred during April, 2010 and after condonation of delay and other relevant factors, the appeals were numbered and entertained and came to be listed for hearing before us. 12. Mr. N.G.R. Prasad, learned counsel for the appellant had advanced his submissions, and on 17.9.2020 we had passed the following order: “After the matter was heard, Mr. N.G.R. Prasad, learned counsel for the appellant, submits that the fourth respondent probably is no more. Let an appropriate affidavit along with an application be filed for taking steps in this regard. 2. The contention of Mr. N.G.R. Prasad is that the premise on which the appellant was non-suited namely, not being a resident of the same village, is incorrect and factually wrong inasmuch as the appellant has been residing in the same village. 3. He further submits that denying employment on the basis of preferential residence is constitutionally impermissible and for which he has relied on the judgment of the same learned single Judge, who has dismissed the Review Petition, reported in the case of P. Vasantha v. District Collector, (2007) 6 Mad LJ 402. He has further relied on a Division Bench judgment of which the learned single Judge was a party, namely, in the case of Union of India v. Central Administrative Tribunal, Chennai,(2008) 3 LLN 233. He has also invited the attention of the Court to the provisions of Tamil Nadu Village Servant Service Rules, 1980, particularly, Rule 5, which reads as follows:— 5. Qualifications (1) No person shall be eligible for appointment to the post of a Village Servant, unless he possesses the qualifications specified below, namely:— i. knowledge to read and writ Tamil; and ii. knows cycling and is physically fit. (2) The appointing authority shall also take into consideration the following factors, namely:— i. whether the applicant is a resident of the charge of village; ii. whether the applicant is a person belonging to one of the communities included in the list of Backward Classes recognised by the Government of Tamil Nadu; iii. whether the applicant is a person belonging to Scheduled Castes/Schedule Tribes; and iv. whether the applicant is an ex-serviceman. (3) In making appointments under these rules, the appointing authority shall take into consideration the character and antecedents of the applicants” 4. whether the applicant is a person belonging to Scheduled Castes/Schedule Tribes; and iv. whether the applicant is an ex-serviceman. (3) In making appointments under these rules, the appointing authority shall take into consideration the character and antecedents of the applicants” 4. He submits that Sub-Rule (2) of Rule 5 is only an indicator of giving a preference and so far as the essential qualifications are concerned, that were possessed by the appellant. 5. However, all these issues will have to be taken into consideration as and when an appropriate application is tendered to the Court about respondent no. 4. List the appeals on 03.11.2020.” 13. The matter took a turn keeping in view the fact that learned counsel for the parties confirmed that the fourth respondent had died on 5.9.2012 leaving behind his wife and two sons as legal heirs. The post was, therefore, vacant. The legal heirs of the fourth respondent did not put up any further contest. 14. In the above background, Mr. N.G.R. Prasad has raised three primary contentions, apart from the other submissions on facts. Firstly, he contends that the conclusion drawn by the authorities that the appellant is a resident of Thayaneri Village is factually wrong. Secondly, he contends that the 1980 Rules which prescribes the qualifications for the post in question, does not make it compulsory for a candidate to be eligible only if he is a resident of the village. It is a mere preference that can be given, but such a failure cannot result in ineligibility of a candidate. The third submission is that even otherwise denial of an opportunity of employment on the ground of residence is constitutionally impermissible, for which he relies on the decisions of the Apex Court in Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu, (2003) 5 SCC 341 and G. Jayalal v. Union of India, (2013) 7 SCC 150 . 15. On facts, he has invited the attention of the Court to paragraph (7) of the revision petition that was filed by the appellant before the District Revenue Officer, which is extracted herein under: “7. The Revision petitioner is residing in Karisalpatti Village which is one of the group village of T. Andipatti Village. The learned Revenue Divisional Officer mentioned in his order that the Revision Petitioner is living in Thayaneri Village which is one of the group village of Melakkottai group. The Revision petitioner is residing in Karisalpatti Village which is one of the group village of T. Andipatti Village. The learned Revenue Divisional Officer mentioned in his order that the Revision Petitioner is living in Thayaneri Village which is one of the group village of Melakkottai group. To prove the residence of the revision petitioner who is living in Karisalpatti village has filed number of documents before the learned Revenue Divisional Officer, Usilampatti. But the learned Revenue Divisional Officer has not even seen the documents of the revision petitioner and he has not discussed with the documents of the revision petitioner in his order. The revision petitioner and his parents are living in the Karisalpatti village in the house of one Chikkannan and on a monthly rent. The rent deed and the house rent receipt, and the Village Administrative Officer certificate to that effect is also produced before the learned Revenue Divisional Officer, Usilampatti. Btu the learned Revenue Divisional Officer has not discussed the above said documents in his order.” 16. He has urged that ample evidence was filed to demonstrate that the appellant was a resident of Karisalpatti Village and not of Thayaneri Village. Karisalpatti Village formed part of Village Panchayat of Andipatti Village and, therefore, it cannot be said that the appellant was a total stranger or an alien to Village Andipatti in order to be considered for appointment as Village Assistant as per the provisions of the 1980 Rules. He, therefore, contends that the learned Single Judge not only summarily dismissed the writ petition without considering these aspects, but also not considered the constitutional issue in correct perspective by applying appropriate precedents. 17. Mr. N.G.R. Prasad has also invited the attention of the Court to the judgment in the case of P. Vasantha v. District Collector, Dindigul District, (2007) 6 Mad LJ 402, delivered by the same learned Single Judge who dismissed the writ petition giving rise to the appeal, where the very same constitutional issue was considered and it was held that being a resident of the locality is only a preference and not a basic qualification, but if a preference is extended compulsorily based solely on residence, the same would be hit by Article 16(2) of the Constitution of India. Paragraphs (14), (15), (17) and (18) of the above mentioned judgment of the same learned Single Judge are extracted herein under: “14. Paragraphs (14), (15), (17) and (18) of the above mentioned judgment of the same learned Single Judge are extracted herein under: “14. The question that arises for consideration is whether any preference based upon locality can be considered to the exclusion of other consideration by the Department. 15. As rightly contended by the official respondents, preferences based upon the locality is only a preference and not a basic qualification. If preference has been extended solely based upon the residence of a candidate, the same will be hit by Articles 16(2) of the Constitution and Courts have frowned upon any preference being shown upon the locality. … 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 same 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.” 18. It is urged that geographical classification is constitutionally impermissible and violative of Articles 14 and 16 of the Constitution of India and further reliance has been placed on the decision of Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 . 19. It is urged that geographical classification is constitutionally impermissible and violative of Articles 14 and 16 of the Constitution of India and further reliance has been placed on the decision of Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 . 19. An additional typed set of papers has been filed bringing on record the death certificate of the fourth respondent, and the Election Photo Identity Card and Aadhar Card of the appellant to support the said submissions. 20. Learned State Government Pleader, on the other hand, has vehemently opposed the appeals and urged that according to the 1980 Rules the eligibility of being a resident of a village is a sine qua non and, therefore, the conclusions drawn by the authorities as well as the learned Single Judge are not erroneous either on facts or on law. 21. Having gone through the pleadings, the judgments, and also the entire background of the litigation, particularly the fact that the fourth respondent died way back in 2012, we find that the interest of justice would be served if the appeals are allowed and the matter is remitted back to the Tahsildar, Tirumangalam Taluk, for passing a fresh order in the light of the conclusions drawn by us supported by the reasons herein after. 22. The primary question for consideration is as to whether an ineligibility would be attracted if a candidate for the post in question under the 1980 Rules is not a resident of the same village where he is to be posted as a Village Assistant. 23. The purpose of a Village Assistant is to serve the interest of the village, and he being a resident of the same village, appears to be a consideration while assessing the candidature so that a Village Assistant may be readily available for carrying out the duties of a Village Assistant effectively. There cannot be any dispute, much less a legal dispute on a preference being given to a candidate if he is a resident of the village, as he is placed in an advantageous position to serve the interest of the village. There cannot be any dispute, much less a legal dispute on a preference being given to a candidate if he is a resident of the village, as he is placed in an advantageous position to serve the interest of the village. A valid presumption can be raised in favour of an individual, that he being a resident of the same village, would be having sufficient knowledge about the topography, the expanse of agricultural holdings, the inhabitants and the hamlets of the village, and a fair acquaintance with the villagers so as to recognize them individually. Thus the familiarity of an individual amongst his own villagers and his proximity would be a source of genuine information available which an outsider will have to acquaint himself with that might take a considerable time. An outsider would not be readily available in the village. Such factors may have worked with the legislature to have introduced the provision of taking into consideration the residence of a candidate. 24. The Rules that have been gainfully extracted by us in our order dated 17.9.2020, quoted above, provides for qualification in Rule 5. Rule 5(1) categorically prescribes the compulsory qualifications making a candidate eligible for appointment, which are knowledge to read and write Tamil; knows cycling, and is physically fit. There is no dispute that the appellant was appointed on the ground that he is eligible, knew cycling, and comparatively being younger in age was physically more fit to perform the duties of a Village Assistant for a longer period of time as compared to the fourth respondent. This resulted in the letter of appointment dated 26.8.1992, which indicates the same. 25. The dispute commences with Rule 5(2), and a perusal thereof would indicate that the opening recital of the said Rule announces that the appointing authority “shall” also take into consideration the following factors. Thus, the appointing authority is under an obligation to take into consideration the factors referred to in Rule 5(2) of the 1980 Rules. The word “shall” thus obligates the authority to carry out the assessment also on a consideration of the said factors. Thus, the appointing authority is under an obligation to take into consideration the factors referred to in Rule 5(2) of the 1980 Rules. The word “shall” thus obligates the authority to carry out the assessment also on a consideration of the said factors. This, therefore, means that the authority cannot ignore the consideration referred to under the said Rule, where there are four factors mentioned, namely, (i) whether the applicant is a resident of the village; (ii) whether the applicant belongs to one of the communities included in the list of Backward Classes; (iii) whether the applicant is a person belonging to the Scheduled Caste; and (iv) whether the applicant is an Ex-service man. 26. None of the other three factors are involved herein, as there is no dispute about the status of community of either the appellant or the fourth respondent. The only contention put forth by the fourth respondent was that the appellant was not a resident of the village and this aspect was not considered by the Tahsildar while proceeding to grant appointment to him. From a perusal of the order dated 26.8.1992, it is correct that this consideration has not been recited in the appointment order of the appellant, even though the assessment has been made on gauging the physical fitness of the appellant as compared to that of the fourth respondent. 27. The question is whether being a resident of the village is compulsory, bringing it within the fold of eligibility or not. On a perusal of Rule 5(1), it is evident that where the legislature felt it appropriate, it prescribed the basic minimum qualifications. Accordingly, Rule 5(1) prescribes the basic qualifications, which does not include the qualification of a candidate being a resident of the village. This qualification has been kept for an additional consideration under Rule 5(2) of the 1980 Rules looking to the purpose of the post in question, namely that of a Village Assistant, where a resident of the same village would be at an advantageous position as noted above. In our considered opinion, such a consideration would be in the nature of a preference, the consideration whereof is essential, but by itself it does not fall within the basic qualifications as prescribed under Rule 5(1) of the 1980 Rules. In our considered opinion, such a consideration would be in the nature of a preference, the consideration whereof is essential, but by itself it does not fall within the basic qualifications as prescribed under Rule 5(1) of the 1980 Rules. At the highest pedestal, the consideration of a candidate of being a resident of the village is obligatory on the authority and a decision can rest on the basis of preference as the rule provides for the same. 28. A decision to appoint a person of the same village thus cannot be said to be arbitrary if a preference is given by the appointing authority to such a candidate, in as much as the appointment is not being made solely on the ground of residence, but also preferentially extending the benefit of appointment to such a person who is a resident of the Village. We find no error in the scheme of the Rules to be hit by Article 14 or Article 16(2) of the Constitution of India, as the residence of the candidate under the 1980 Rules does not form part of the basic qualification. 29. However, coming to the operation of the Rule, we find that the authority is under an obligation to consider the preferences. Rule 5(2) of the 1980 Rules is not under challenge as being violative of the fundamental rights guaranteed under the Constitution of India. What Mr. N.G.R. Prasad, in our assessment, contends is that while understanding the Rule, the authorities have committed a complete error by treating it to be a compulsory basic qualification, and doing so that is while implementing the Rule, the authorities have arrived at a wrong conclusion, being hit by Article 14 and 16(2) of the Constitution of India. He contends that the learned Single Judge while dismissing the writ petition and also the review petition has completely overlooked this aspect of the matter, more so when the same learned Single Judge while deciding another petition two years earlier on 18.7.2007 in the case of P. Vasantha (supra) has held otherwise. 30. We agree with the contention of Mr. N.G.R. Prasad to the extent that the learned Single Judge has not taken these aspects into consideration, and an oversight of his own judgment in the case of P. Vasantha (supra) confirms the correctness of the argument advanced by the learned counsel for the appellant. 31. 30. We agree with the contention of Mr. N.G.R. Prasad to the extent that the learned Single Judge has not taken these aspects into consideration, and an oversight of his own judgment in the case of P. Vasantha (supra) confirms the correctness of the argument advanced by the learned counsel for the appellant. 31. In our opinion, keeping in view the nature of the requirement for consideration, namely that of residence of a candidate, a candidate has to be compulsorily selected only if he is a resident of the village, does not appear to be an eligibility condition and, therefore, a candidate's rejection on that sole ground may be invalid as being violative of Article 14 and Article 16(2) of the Constitution of India, as indicated by the learned Single Judge in the decision of P. Vasantha (supra). May be it is for this reason that the place of residence was not kept as a compulsory eligibility qualification under Rule 5(1) of the 1980 Rules, but its consideration was made obligatory under Rule 5(2) so that if a candidate of the same village was available, then that preference would not be ordinarily overlooked. The nature of the Rule is such that it makes it compulsive for the authority to consider the place of residence of a candidate, but at the same time nowhere indicates it to be an eligibility condition for selection. The word “preference” has its different connotations keeping in view the text and context of the Rule involved, which is peculiar in the present case. We may refer to our latest judgment covering the meaning and the interpretation of the word “preference” given by different Courts, including the Apex Court, in paragraphs (23) and (24) of the judgment in the case of S. Jeevana v. State of Tamil Nadu, 2020 Vol.2 Writ LR 721: “23. The word “prefer” means to place before or to have greater value. It is a priority, where a claim ranks first for settlement. This, in service law, has been interpreted by the Supreme Court in a couple cases, reference be had to the judgment in the case of Secretary, A.P. Public Service Commission, Y.V.V.R. Srinivasulu, (2003) 5 SCC 341 , where it was held that the enforcement of a preferential clause in selection will mean only that other things being equal, those with the additional qualification can be preferred. This was followed by the Apex Court in the case of G. Jayalal v. Union of India, (2013) 7 SCC 150 , wherein in paragraph (15), the Court reiterated the view expressed in the judgment referred to above. 24. The line of decisions of the Apex Court lay down the ratio as follows: (i) In Sher Singh v. Union of India, (1984) 1 SCC 107 , the Apex Court examined the provisions of Section 47(1) of the Motor Vehicles Act, 1939 providing for preference to the State Transport Undertaking by grant of permit and explained the meaning of ‘preference’ as under: “7. …… The expression ‘preference’ amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other. It signifies that other things being equal, one will have preference over the others. ……… Preference in this context would mean that other things generally appearing to be qualitatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the Undertaking.” (ii) In Government of Andhra Pradesh v. P. Dilip Kumar, (1993) 2 SCC 310 , the Apex Court held as under: “13. The matter may be looked at from another viewpoint. The word ‘preference’ as understood in ordinary parlance means preferring or choosing as more desirable, favouring or conferring a prior right. What then is the purpose and object sought to be achieved by the insertion of the preference clause in the rule? There is no doubt that preference was sought to be granted under Note 1 to post-graduates in the larger interest of the administration. How would the interest of the administration be served by granting preference to post-graduates? It is obvious that it was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better and of a high order. In other words the State considered it necessary to strengthen the engineering service by recruiting post-graduates to the extent available so that the State may benefit from their higher educational qualifications and better performance. If this was the objective surely it would not be realised unless postgraduates are treated as a class and given preference en bloc over the graduates. ….. 15. If this was the objective surely it would not be realised unless postgraduates are treated as a class and given preference en bloc over the graduates. ….. 15. ……..It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualifications to enter the zone of consideration. It was, therefore, held that screening a candidate out of consideration at the threshold of the process of selection is neither illegal nor unconstitutional if a legitimate field demarcating the choice by reference to some rationale formula is carved out. Thus the challenge based on Articles 14/16 of the Constitution was repelled. …….” (iii) In Secretary (Health), Department of Health and F.W. v. Anita Puri, (1996) 6 SCC 282 , the question raised before the Apex Court was answered as follows: “7. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held.” (iv) In Executive Officer v. E. Tirupalu, (1996) 8 SCC 253 , the Apex Court held that where rules provide for preference to a particular class of candidates, that preference under the Rules cannot be applied irrespective of the merit of candidates, the inmates have to be given appointment. It means that the merit of the candidates being equal, preference would be given to the inmates of the class which is to be given preferential right and it certainly does not mean an automatic appointment without considering the cases of other candidates. Therefore, even if the rules provide for preferential right, candidates having such subjects would have preferential right only when they complete with other candidates and are found on equal footings, otherwise not. (v) In State of Uttar Pradesh v. Om Prakash, (2006) 6 SCC 474 : AIR 2006 SC 3080 , after considering the earlier judgments on the issue, the Apex Court held that the word “preference” would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of the candidates vis-a-vis others in the merit list prepared by the Commission.” 32. The said judgment was taken up in appeal before the Apex Court in S.L.P.(C) Nos. 12589-12590/2020 that was dismissed on 27.11.2020. 33. The said judgment was taken up in appeal before the Apex Court in S.L.P.(C) Nos. 12589-12590/2020 that was dismissed on 27.11.2020. 33. We may further clarify that Rule 5(2) gives a discretion to the appointing authority, while making it obligatory for considering the preferences referred to therein. The words “take into consideration” cannot be understood to mean that the authority will not exercise its discretion. After all a discretion has to be exercised, as in the instant case, according to the norms prescribed and cannot be ignore. The discretion has to be judicious, but in view of what has been stated herein above, a candidature cannot be rejected solely on the ground of the candidate not being possessed of the advantage of residence of the same village. 34. The judgments that have been cited in relation to the subject matter, do not appear to have taken notice of two other contingencies that flow from 1980 Rules. Learned counsel also did not advance their submissions, but it is worth taking note of Rule 12 of the 1980 Rules which provides that the post in question is a transferable post. Thus, even if a Village Servant is a resident of the same village, then the competent authority has the power to transfer him to another village which indicates that the compulsion of eligibility of being a resident of the village is not mandatory, but preferential. This gets fortified by a further mandate contained in Rule 17 which is extracted herein under: “Residence.- The Village Servant shall reside in the Village under his charge.” 35. The aforesaid Rule therefore makes it compulsory for a Village Servant to reside in the same village even if he is not a resident thereof. Thus, the selection process may not get vitiated solely on this count, but after selection or even otherwise the Village Servant has to reside in the village under his charge. Resultantly, the absence of a Village Servant after his appointment from the village appears to be impermissible, and he has to reside in the village under his charge. It appears that even if a resident of the same village is selected, then he has to actually reside in the village and no migration would be permissible. The said Rule, therefore, also reflects a compulsion of residing in the village after being selected, and is not an essential eligibility condition as explained herein above. It appears that even if a resident of the same village is selected, then he has to actually reside in the village and no migration would be permissible. The said Rule, therefore, also reflects a compulsion of residing in the village after being selected, and is not an essential eligibility condition as explained herein above. 36. The authorities are definitely under an obligation to take into consideration the factors provided under the 1980 Rules, but it is only when the preferences are to be given effect to that the question of its applicability would arise. As indicated above, while issuing the letter of appointment, this aspect has not been considered and neither did any of the authorities look into the contention of the appellant on the basis of the documents that he had produced that he was claiming to be not a resident of Village Thayaneri, that was the consistent stand of the authorities. The appellant's contention throughout was that he was a resident of Village Karisalpatti, which formed part of the cluster village Andipatti Panchayat. Whether such a consideration would also tend in favour of the appellant or not has not been taken into account. 37. At times facts unfold different stories in different cases. The fact that the fourth respondent died in 2012 and that the appellant is still alive does indicate that the consideration of the appellant being physically fit to serve the interest of the village has by divine providence turned out to be true. The appellant had been favoured with an interim order throughout the pendency of the case before the Tribunal and till 27.7.2009, after the dismissal of the writ petition when the appellant's services came to be disengaged. 38. In the background aforesaid, when the fourth respondent died in 2012 itself, the mere pendency of the appeal or its disposal at this stage should not take away the power of the authorities to exercise their discretion once again keeping in view the legal position as explained herein above and also the fact that the appellant had been appointed by the Tahsildar. 39. For all the reasons aforesaid, we allow the appeals and set aside the impugned judgment dated 17.4.2009, as also the judgment on the review petition dated 26.11.2009. 39. For all the reasons aforesaid, we allow the appeals and set aside the impugned judgment dated 17.4.2009, as also the judgment on the review petition dated 26.11.2009. We also set aside the oders dated 13.1.1993 and 7.5.1993 passed by the authorities concerned and remit the matter to the Tahsildar, Tirumangalam Taluk, to consider the matter once again, more so in the light of the fact that the fourth respondent is dead, and pass an appropriate order in accordance with law. The passing of our order will not automatically amount to the reinstatement of the appellant on the post in question, as he appears to be out of service after 27.7.2009. In the event, the Tahsildar proceeds to pass an order in favour of the appellant, he shall not be entitled to any past honorarium for the period he has not worked. 40. In the result, the appeals stand allowed. No costs. Consequently, C.M.P. Nos. 384 and 391 of 2020 are closed.