PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the 1st respondent in Na.Ka.No.026850/2012/AAthi7 dated 26.04.2012 and quash the same and consequently direct the 1st respondent herein to issue Priority Certificate for Employment to the petitioner as per G.O.Ms.No.188 Personal and Administrative Reforms (Per.P) Department dated 28.12.1976 within a reasonable time.
The petitioner assailing an order dated 26.04.2012 of the 1st respondent herein holding that the petitioner is ineligible to be issued with a priority certificate for employment is before this Court by way of this writ petition and further petitioner seeks for a direction to the 1st respondent to issue her with priority certificate in consonance with G.O.Ms.No.188 Personal and Administrative Reforms (Per.P) Department dated 28.12.1976.
2.It is the case of the petitioner that she owned a piece of dry land in S.No.286/2D measuring to an extent of 0.15.0 hectare (37 cents) in Usilampatti Taluk, Madurai District. The above land was acquired for providing free house sites to the Adhidravidars, as per the award proceedings in No.6/2009-2010 (Roc. No. 286/2009 A) of the 3rd respondent.
3.The petitioner had no other property excepting the above piece of land acquired by the government. She has no other avocation and out of acquisition of the above property she lost her annual income of Rs.15,000/-. In the said circumstance she applied before the 3rd respondent for issuance of priority certificate for employment in the light of G.O.Ms.No.188 Personal and Administrative Reforms (Per.P) Department dated 28.12.1976.
4.It is the case of the petitioner that she is entitled for being issued with priority certificate for Employment to the petitioner since she had lost her sole property because of the above acquisition. Wherefore she made an application before the 3rd respondent herein for issuance of priority certificate with all necessary documents. The 3rd respondent having scrutinized petitioner?s application also by proceedings in Na.Ka.No.286/2009 A dated 13.08.2010 in the prescribed form recommended to the 1st respondent. The 3rd respondent also indicated in his certificate that petitioner have no other property than the one acquired by the government for government purpose and annual income from the property was Rs.11,500/-.
5.Whereas without proper appraisal of the proposal made by the 3rd respondent and without considering the documents filed by the petitioner, the 1st Respondent had chosen to pass the impugned order herein dated 26.04.2012 rejecting petitioner?s request for grant of Priority Certificate for employment in government service by holding that the petitioner cannot be issued with the certificate, since only a smaller area of 37 cents was acquired from the petitioner by the Government. The said order is impugned herein.
6.I heard Mr.K.Appadurai, learned counsel for the petitioner and Mr.K.Guru, learned Government Advocate for the respondents and perused the entire records.
7.The learned counsel for the petitioner would submit that the 1st respondent had erred in holding that only an extent of 37 cents of land alone has been acquired from the petitioner and therefore the income and property of the petitioner are no way affected. Such finding is unsustainable and untenable as there such contemplation with regard to extent under G.O.Ms.No.188 dated 28.12.1976 to be issued with a priority Certificate.
8.While it was categorically held by the 3rd respondent that by the acquisition of petitioner?s land for the government purpose and it was further held that her livelihood has been affected the 1st respondent ought not to have passed the impugned order. The reasoning of the 1st respondent in rejecting the request of the petitioner for grant of Priority Certificate are based on extraneous and irrelevant consideration and the impugned order has been passed beyond the scope and ambit of G.O.Ms.No.188 dated 28.12.1976.
9.Thus the petitioner is fully qualified and eligible for grant of Priority Certificate as per G.O.Ms.No.188 dated 28.12.1976 in the light of the documentary evidence and recommendations of the 3rd respondent. Therefore he seeks to set aside the impugned order.
10.Per Contra the 3rd respondent filed counter and the Learned Counsel for the 3rd respondent contends that subsequent to her application before the 3rd respondent for priority certificate for having given her land solely under the above acquisition, the 3rd respondent namely The Special Tahsidar, (ADW) Usilampatti has recommended her request and sent the priority certificate to the A.D. District Employment Exchange, Madurai through the District Adi- Dravidar Welfare Officer, Madurai vide The Special Tahsidar, (ADW) Usilampatti Roc No.286/90A dated 13.08.2012.
11.Whereas subsequently on scrutiny of petitioner?s claim under G.O.Ms.No.188 dated 28.12.1976 of Personal and Administrative reforms (Personnel-P) Department to the Director of Employment and Training, Madras-5, it was found by the 1st respondent that the petitioner is not entitled for priority certificate as she being a non member of Scheduled Caste community.
12.It is further contended that the above referred G.O. is exclusively applicable to the persons belonging to Scheduled Caste Community, whose property was acquired by the Government.
13.On hearing upon the rival submissions and on careful perusal of the available records, this Court finds that though the petitioner?s application was rejected vide the impugned order holding that only a smaller extent of area remained acquired by the Government from the petitioner disentitling her to be issued with priority certificate, there is no say in the counter filed by the 3rd respondent to sustain the impugned order in line with the above ground for rejection. Whereas without touching upon the aspect of extent of land viz the reason assigned in the impugned order, a new contention in this writ petition is raised that the G.O. is exclusively applicable to the persons belonging to Scheduled Community. The petitioner belongs to Hindu Naidu Community which is not found eligible as per the provisions contemplated in the above Govt. order cited. Therefore he prays for the dismissal of the writ petition.
14.In the above circumstance, this Court likes to emphasis the settled law that any impugned order in a proceeding can never be improved by way of filing a Counter in a proceeding assailing the very order. I am afraid that the said stand taken by the respondents herein cannot be appreciated. Though the impugned order is liable to be set aside on the sole ground stated in the previous paragraph this Court in the interest of justice like to answer the above contention of the respondents.
15.Hence it would be useful to extract the relevant para of the above G.O.Ms.No.188 dated 28.12.1976 cited by the respondent hereunder: ?Group-II:
i) ...
ii) ...
iii) ....
iv) ....
v) Members of the family (including members of Schedule Caste/Schedule Tribe) whose lands have been acquired for Government purposes as well as for the projects of the Public Sector Undertakings subject to the condition that preference should be given to those who are dependent for their livelihood primarily or wholly on the lands acquired and from among them to members of the Scheduled Castes and Scheduled Tribes who may be eligible for employment."
16.On close reading of the above provision it is needless for this Court to state that the above G.O extend to the members of the family (including members of SC/ST) whose lands have been acquired for Govt. purposes as well as for the public section. The above provision is general in nature and a beneficiary provision and there is no specific bar created over Communities other than Scheduled Community to be issued with a priority certificate for having lost their land in acquisition. In fact the above said G.O emphasis that the benefit of priority certificate is to be conferred to the members of Scheduled Community on whom having lost their land in acquisition. This Court is not in a position as to how the respondent had given an interpretation as the G.O is inapplicable to the Communities other than the Scheduled.
17.At this juncture, it is brought to the notice of this court by additional typed set of papers dated 09.03.2014 and 18.06.2014 that as on date the petitioner is married and living in Tirunelveli District and the concerned Village Administrator Officer has certified that the petitioner herein do not own any property therein.
18.Therefore, now the next question arise before this court is as to whether the marital status of the petitioner and her living in Tirunelveli District would disentitle her from obtaining the Priority Certificate?.
19.For proper appreciation of the above question it would be relevant to look into the decision of this court in the matter of U.Sankaran & Another ?Vs- The Secretary Personal and Administrative Reforms Dept., Chennai & Others reported in CDJ 2009 MHC 5064 held that "4. However, the 2nd respondent has rejected the same in the impugned order. A reference to the impugned order passed by the 2nd respondent shows that the only reason on which the claim of the petitioner was rejected is that he was a married person and he cannot be treated as dependant as referred in the G.O.Ms.No.188 Dated 28.12.76, which has been passed for the purpose for recruitment through Employment Exchange and to give priority to the candidates for registration in various categories of persons. In respect of the family whose property has been acquired for Government purpose the said G.O. states as follows:
"Group-II:
i) ...
ii) ...
iii) ....
iv) ....
v) Members of the family (including members of Schedule Caste/Schedule Tribe) whose lands have been acquired for Government purposes as well as for the projects of the Public Sector Undertakings subject to the condition that preference should be given to those who are dependent for their livelihood primarily or wholly on the lands acquired and from among them to members of the Scheduled Castes and Scheduled Tribes who may be eligible for employment."
The terms as used in the G.O only states as members of the family. Further giving priority to the persons who have been wholly or primarily dependent on the said land for livelihood acquired for Government purposes. Nowhere the Government Order states about the status of the person whether he is married or not. It is not in dispute that the petitioner and his family are dependent for their livelihood on the land which has been acquired and the reason adduced by the 2nd respondent in not giving priority to the petitioner for registration in the Employment Exchange is not legal." It is now stated by the learned Government Advocate that there is no appeal against the said order and it has become final.
5. In the light of the above, the impugned communications sent by the 2nd respondent is not valid and it is hereby set aside. The 2nd respondent is directed to consider the case of the petitioners as priority certificate holders and send appropriate sponsorship certificate as and when any requisition is made by the relevant authorities. Both the Writ Petitions are disposed of accordingly. However, there will be no order as to costs?.
20.Hence this Court finds that the fact of the above case is also applicable to petitioner?s case in so far as her marital status and impact over her eligibility. With regard to aspect of extent of land and communal status, as seen above there is no bar in the above G.O. disabling the petitioner from being issued with priority certificate.
21.Further on repeated perusal of the above G.O., this Court is unable to find any contemplation with regard to the extent of land as a factor consequently entitling or disentitling a person whose land is acquired.
22.At this juncture it is noticed by this Court vide the ID card issued by the Assistant Director of Fisheries Department, Rathapuram that the petitioner?s family is also a victim of Tsunami hit in the year 2004. It is further noticeable that petitioner is classified as living under poverty line and her corresponding number is 22456 as per records by the Government.
23.Therefore, in view of the above discussions and the settled law, this Court has no hesitation to set aside the impugned order. Accordingly the impugned order is set aside.
24.In the result:
a) the Writ Petition is allowed by setting aside the order passed by the 1st respondent in Na.Ka.No.026850/2012/AAthi7 dated 26.04.2012;
b) the 1st respondent is hereby directed to issue Priority Certificate for Employment to the petitioner as per G.O.Ms.No.188 Personal and Administrative Reforms (Per.P) Department dated 28.12.1976;
c) the said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The District Adi Dravidar & Tribal Welfare Officer, Madurai 625 020.
2.The District Employment Officer, Tirunelveli District.
3.The Special Tahsildar, Adi Dravidar Welfare (L.A.), Usilampatti, Madurai.
.