A.Karpagam v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.10.2009CORAM:THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.20094 of 2009& M.P.Nos.1 and 2 of 2009A.Karpagam.. PetitionerVs.1.The District CollectorThiruvannamalaiThiruvannamalai District2.The CommissionerDistrict Panchayat UnionThiruvannamalai DistrictThiruvannamalai3.The Block Development OfficerThiruvannamalaiThiruvannamalai Taluk and District4.The PresidentThandarai VillageThandarai PostThiruvannamalai Taluk and District5.K.Maheswari.. Respondents Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorarified Mandamus calling for records inorder NA KA No.1/10574/08/SUT-1-94 dated 10.9.2009 on the file of the1st respondent and quash the same and direct the 1st respondent toselect and appoint the petitioner to the post of Nutrition Organiserby giving the benefit of priority as destitute widow by virtue ofG.O.Ms.No.229, P&AR PER.R dated 7.4.1988.For Petitioner :: Mr.G.Rajan For Respondents :: Mr.R.Neelakandan, G.A.1 to 4O R D E RThe petitioner was an applicant to the post of NoonMeal Organizer for which applications were called for by the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent Commissioner of Thiruvannamalai Panchayat Union. Thenotice calling for the applications in respect of the Panchayat UnionMiddle School at Thandarai Colony was declared as a general vacancy.Whereas the other vacancies were reserved for various othercategories including candidates from Backward Class community,Scheduled Caste and Christian Backward communities. Thequalification that is prescribed in the said notice was that thecandidates should be within the age group of 25 to 40 and they shouldreside in the said village and if no qualified persons are available,even the people, who are residing within the locality within 10 Kms.from the said Village will be given preference. It is also statedthat those who have passed SSLC or failed SSLC can apply.2. The petitioner applied for the said post. She claims that sheis a destitute women deserted by her husband. Ultimately when thepetitioner was not appointed, she found that the 5th respondent wasappointed to the said post. She also applied under the RTI Act toget the documents relating to her application and then she chose tofile the present Writ Petition challenging the 5th respondent'sappointment as Noon Meal Organizer in the Panchayat Union MiddleSchool in Thandarai Colony.3. The learned counsel for the petitioner raises threecontentions. The first contention was that the 5th respondent was aVice President of Thandarai Village. She being the member/VicePresident of the Panchayat Union, she cannot be appointed. 4. In such context, the learned counsel for the petitionerreferred to Section 34 of the Tamil Nadu Panchayat Act,1994, whereinit is stated that a person, who is a Village Administrative Officeror village servant or officer or servant of the State or CentralGovernment is disqualified from contesting any post in the VillagePanchayat. Therefore, the substance of the said provision is that ifa person, who is a Noon Meal Organizer ipso facto Government servantshould not continue in office. The vice versa also applies, namelyif a person holds a post in the Village Panchayat, that person alsocannot take up any post in the Government.5. The second contention raised by the petitioner was that shebeing a destitute woman, she is entitled for preference in theemployment. Therefore, reliance was placed upon G.O.Ms.No.395, P&ARDepartment dated 4.11.1993. In the said Government Order, the StateGovernment had defined as to who can be a destitute widow. It isalso stated that notwithstanding anything in the State andSubordinate Service Rules, the preference shall be given to destitutewidows, who possess the qualifications prescribed for appointment toany post under the State Government by direct recruitment. https://hcservices.ecourts.gov.in/hcservices/

6. The third contention raised by the petitioner was that sincethe 5th respondent had mentioned in the application as Vice Presidentthat might have influenced the selection authority. Therefore, herselection was tainted. This Court is not able to agree with any oneof the contentions raised by the petitioner.7. The first contention is that Section 34 of the Panchayat Actwill apply. Inasmuch as the 5th respondent was Vice President of thePanchayat, she could not be a Noon Meal Organizer getting terminalbenefits from the State Government. In this context, it must benoted that on notice from this Court, the 3rd respondent filed awritten instructions dated 21.10.2009.8. In the written instructions, it was stated that the 5threspondent got elected as a Ward Member and Vice President duringOctober 2006. She tendered her resignation from the post of Memberand Vice President on 11.9.2009. She was appointed as Noon MealOrganizer on 14.9.2009 by the Collector's proceedings dated10.9.2009. The 5th respondent had also joined as Noon Meal Organizeron 14.9.2009. In the meanwhile, her resignation was accepted by thePanchayat by its Resolution dated 17.9.2009. Subsequent to theResolution of the Panchayat, the vacancy was notified to the StateElection Commissioner and the State Election Commissioner had orderedto conduct election of the Vice President on 2.11.2009. When theWard Member's election will be conducted on the day fixed by theState Election Commission, copies in support of these facts are alsoenclosed along with the written instructions. 9. However, the learned counsel for the petitioner urged that onthe date when the applications were called for and the interview wasconducted and appointment order was sent by the District Collector,she was the Vice President of the Panchayat and she ought not tohave been given the said post.10. It must be noted that Section 34 of the Tamil Nadu PanchayatAct talks about disqualification. When a person is holding a a posteither as Village Administrative Officer or officer or servant of theState or Central Government, he shall be disqualified for election asa member in a Village Panchayat. Therefore, the 5th respondentsuffers disqualification from holding the post as Vice President orWard Member. Even when the person suffers disqualification onaccount of holding the post of Vice President as mentioned underSection 34 of the Panchayat Act, Section 41 of the Panchayat Actprovides the authority to decide such issue. Therefore, it is onlyoutside the scope of this Court to consider https://hcservices.ecourts.gov.in/hcservices/ whether by accepting the post of Noon Meal Organizer, the 5threspondent suffers any disqualification. 11. It is not out of place to record the judgment of the SupremeCourt that arose in the context slightly different from the factsmentioned herein in Manohar Nathurao Samarath vs. Marotrao and othersreported in (1979) 4 SCC 93. An employee of the LIC Corporation wasstanding in a Panchayat election and the said election came to bechallenged on the ground that as per the LIC Regulation, moreparticularly Regulation No.25(4), a LIC employee cannot stand in theelection without the permission of the Chairman of the Corporation.Therefore, it was stated that the successful candidate being a LICemployee having contested the election without the permission of theChairman suffered statutory disqualification on the ground that theLIC Regulations are statutory in character. Rebelling the saidcontention, the Supreme Court held that if at all the LIC Regulationcan only be disciplinary not disqualificatory a person. Whilerejecting the said contention, the Supreme Court in paragraph 16observed as follows:"16. There is a broader constitutional principle whichsupports this semantic attribution. The success of ourdemocracy to 'tourniquet' excess of authority depends oncitizen participation. An inert citizenry indifferent tothe political process is an enemy of the Republic'svitality. Indeed, absolution thrives on inaction of themembers of the polity. Therefore, activist involvement invarious aspects of public affairs by as many as citizens ascan be persuaded to interest themselves is a sign of thehealth and strength of our democratic system. Local self-government and adult franchise give constitutional impetusto the citizens to take part in public administration. Ofcourse, this does not mean that where a plain conflict ofinterests between holding an office and taking part in thepolitical affairs of government exists, a disqualificationcannot be imposed in public interest. The rule isparticipation, the exception exclusion. Viewed from thatangle, if a government servant or an employee of the LICparticipates in local administration or other election itmay well be that he may forfeit his position as governmentservant or employment, if dual devotion is destructive ofefficiency as employee and be subject to disciplinaryaction a matter which depends on a given milieu andpotential public mischief. I am not resting our decisionon this general consideration but mention this persuasivefactor as broadly supportive of our conclusion." https://hcservices.ecourts.gov.in/hcservices/

12. In the present case, whether the 5th respondent suffers anydisqualification for accepting the post of Noon Meal Organizer cannotbe gone into by this Court sitting under Article 226 of theConstitution of India, unless it is routed through Section 41 of thePanchayat Union Act. It must also be noted that the nature of postheld will also be gone into by the appropriate Government. 13. The Extra Departmental Agents are government servants holdinga civil post and are entitled to the protection under Article 311(2)of the Constitution. The Supreme Court while dealing with PunjabState Election Commission Act, more particularly Section 11(g) of theAct providing for disqualification held that such a person, who isworking as Gramin Dak Sewak (GDS) is disqualified from holding thePanchayat post. The said decision is taken in the case of Chet Ramvs. Jit Singh reported in 2008 AIR SCW 7842. In the present case,inasmuch as the 5th respondent is not holding the post of Member orVice President of the Panchayat, this Court is not inclined to gointo the question whether she suffers disqualification for holdingthe post of a Noon Meal Organizer.14. The 2nd question that arose for consideration, whether as adestitute widow, she has to be preferred overlooking the claim of theother employees, placing reliance upon G.O.Ms.No.395 P&AR Departmentdated 4.11.1993, cannot be countenanced, since the said GovernmentOrder related to a Service under the State and the post of Noon MealOrganizer is purely covered by not any constituted service and Rulesbeing framed under Article 309 of the Constitution. The post of NoonMeal Organizer is covered by executive orders of the Government andif any preference was to be given, it has to be indicated in theNotification. When all other things are being equal, preference canbe given. In the present case, the post of Noon Meal Organizer inthe Panchayat Union Middle School had been shown only as a 'Generalturn' and no other parameter is shown. Even otherwise, the Court hasalready held that such a preference can be given when other thingsare equal. Therefore, if at all any preference is to be given on theground that the petitioner is a destitute woman, it is only theauthority who can give preference, when all other qualifications areequal. This court is not inclined to interfere with the appointmentof the 5th respondent.15. The last contention that the 5th respondent had reallyinduced the authorities by mentioning in the application that she wasa Vice President and therefore the selection is vitiated also cannotbe accepted. The selection is not made at the Block Developmentlevel. The candidates' list along with appropriate qualificationsare sent to the Collector. It is only the Personal Assistant (NMP) https://hcservices.ecourts.gov.in/hcservices/ to the Collector who puts up the note and it is finally approved bythe Collector. Therefore, whether the 5th respondent being a VicePresident had induced the appointing authority is only a speculation.16. In the light of the above, this Court is not inclined tointerfere with the selection made by the 1st respondent and theappointment made in favour of the 5th respondent. Hence, the WritPetition stands dismissed. No costs. The connected MiscellaneousPetitions stand closed.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarajrTo1.The District CollectorThiruvannamalaiThiruvannamalai District2.The CommissionerDistrict Panchayat UnionThiruvannamalai DistrictThiruvannamalai3.The Block Development OfficerThiruvannamalaiThiruvannamalai Taluk and District4.The PresidentThandarai VillageThandarai PostThiruvannamalai Taluk and District1 cc To Mr.G.Rajan, Advocate, SR.572061 cc To The Government Pleader, SR.57447W.P.No.20094 of 2009RSM(CO)SRA(6/11/2009)