The Secretary To Government Of Tamil Nadu And Others vs M Muthulakshmi And Others

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.03.2017 CORAM:

THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM Writ Appeal(MD)Nos.792, 841, 849 to 855, 858, 924 to 933 of 2012,

62 & 63 of 2013 and 156 of 2015 and

Writ Petition(MD)Nos.18443 to 18445, 18447 to 18449, 18583, 18657,

18872, 18966, 19111, 19112, 19982, 19983, 20127, 20491 of 2014, 334 to

336, 1264 and 2803 of 2015

and

connected Miscellaneous Petitions

W.A.(MD)No.792 of 2012

1. The Secretary to Government of Tamil Nadu, Social Welfare and Nutritious Meals Department, Secretariat, Fort St.George, Chennai – 600 009.

2. The District Collector, Madurai District, Madurai – 625 020.

3. The District Project Officer, Madurai District.

4. The Project Officer, Child Development, T.Kallupatty, Madurai District .. Appellants

Vs.

1. M.Muthulakshmi

2. Chitra .. Respondents

Prayer in W.A.(MD)No.792 of 2012: Appeal filed under Clause 15 of the Letters Patent, against the common order, dated 01.10.2012, made in W.P. (MD)No.4451 of 2012.

For Appellants : Mr.K.Chellapandian, in W.A.(MD)No.792/12 Additional Advocate General For Respondent 1 : Mr.D.Sakkaravarthi in W.A.(MD)No.792/12 - - - - -

C O M M O N J U D G E M E N T

S.MANIKUMAR, J.

Since, issue involved in these Batch of cases, comprising of Writ Appeals and Writ Petitions, relates to Recruitment and Conditions of Service of personnel, working in Anganwadi Centres, in the State of Tamil Nadu, they were heard together and disposed of by means of this Common Judgement.

PRAYER:-

2. Challenge in these batch of cases are as follows:

(A) WRIT APPEALS:

(i) Writ Appeal (MD) Nos.792 of 2012, 849 to 855 of 2012, 924 to 933 of 2012, 62 of 2013 and 63 of 2013 were filed by the State challenging the common order of the Writ Court dated 01.10.2012, passed in W.P.(MD)Nos.4451 of 2012 etc., batch.

(ii) Writ Appeal (MD) No.841 of 2012 was filed by one M.Meenalakshmi, challenging the common order of the Writ Court dated 01.10.2012, passed in W.P.(MD)Nos.4451 of 2012 etc., batch.

(iii) Writ Appeal (MD) No.858 of 2012 was filed by the State challenging the common order of the Writ Court dated 17.10.2012, passed in W.P.(MD)Nos. 7981 of 2012 etc., batch.

(iv) Writ Appeal (MD) No.156 of 2015 was filed by one Jesinda, challenging the order of the Writ Court dated 11.11.2014, passed in W.P. (MD)No.3398 of 2010.

(B) WRIT PETITIONS:

(v) W.P.(MD)Nos.18443, 18444, 18447, 18448, 18449 and 18872 of 2014 were filed for declaring G.O.(Nilai)No.43, Social Welfare and Nutritious Meal Programme Department, dated 28.08.2014, insofar as seeking to fill up 75% of vacancy in the post of main Anganwadi workers, which arose on 01.06.2014, by direct recruitment as illegal and unconstitutional and direct the respondents to upgrade the post of the petitioners, who are now working as Mini Anganwadi Workers, in the nearby main Anganwadi centers in the existing vacancies, without reference to the age limit and also without insisting that residence should be situated within the 3 Km to 10 Km radius.

(vi) W.P.(MD)No.20127 of 2014, has been filed for declaring G.O. (Nilai)No.43, Social Welfare and Nutritious Meal Programme (Sa.Na.7) Department, dated 28.08.2014, issued by the 1st respondent, insofar as fixing upper age limit as 35 by relying upon the G.O.Ms.No.110, dated 14.05.2012, as illegal, unconstitutional and consequently, consider the petitioner's case for appointment to the post of Main Anganwadi worker in Kdayam Block, Tirunelveli District or any other nearby Anganwadi Centre, without reference to the maximum age limit.

(vii) W.P.(MD)Nos.18445, 18657 and 18966 of 2014 were filed for a Mandamus, forbearing the respondents from filling up the post of Anganwadi Workers in Ramanathapuram District (in respect of W.P.Nos.18445 and 18657 of 2014) and Dindigul District (in respect of W.P.No.18966 of 2014), without publishing public notification, notifying the posts and the communal roaster and consequentially, to direct the respondents to issue public notification, notifying vacancies and communal roaster for recruitment to the post of Anganwadi worker and consequentially to direct the respondents to promote the petitioner for appointment by promotion to the post of Anganwadi worker in the light of the order issued by the 3rd respondent, in his proceedings in Na.Ka.No.4084/I 3-2/2014, dated 31.10.2014.

(viii) W.P.(MD)No.18583 of 2014, has been filed for a Mandamus, forbearing the respondents from filling up the post of Anganwadi workers, Mini Anganwadi workers and Anganwadi Helpers, without publishing public notification, notifying the vacancies and the communal roaster and consequently, to direct the respondents to issue the public notification, notifying the vacancies and communal roaster for recruitment to the post of Anganwadi workers and Anganwadi Helpers and proceed with the recruitment process of Anganwadi worker in conformity with Articles 14 and 16(1) of the Constitution of India.

(ix) W.P.(MD)Nos.19982 and 19983 of 2014, W.P.Nos.334 to 336 of 2015, 1264 of 2015 and 2803 of 2015 were filed for a Mandamus, directing the respondents to receive their applications and consider them for appointment to the post of Main Anganwadi worker in the existing vacancies in Pudukkottai District, by direct recruitment, by giving preference and relaxation regarding age, income, distance, etc., to them, as the case of Mini Anganwadi workers.

(x) W.P.(MD)Nos.19111 and 19112 of 2014, were filed for a Mandamus, forbearing the respondents from filling up the post of Anganwadi Workers in Pudukkadai Theru, Kanyakumari District, without publishing public notification, notifying the posts and the communal roaster and consequentially, to direct the respondents to issue the same and proceed with the recruitment process thereupon in consonance with Articles 14 and 16(1) of the Constitution of India.

(xi) W.P.No.20491 of 2014, has been filed for a Mandamus, directing the respondents 1 to 3 herein to transfer her, from Melayyanpatti Anganwadi Centre to Kottaiyiruppu Anganwadi Centre, situated at Thiruppathur Block, Sivagangai District, in the light of the instructions, issued by the Principal Secretary/Special Commissioner, Integrated Child Development Scheme, Chennai, in R.C.No.2212/E3(4)/2001, dated 30.01.2012.

COMMON FACTS :-

3. Common facts leading to filing of these cases are as follows:

(i) The Mid Day Meal Scheme is the popular name for the school meal programme in India, started in the 1960s. It involves provision of lunch free of cost to school children on all working days. The key objectives of the programme are :

(a) protecting children from classroom hunger;

(b) increasing school enrolment and attendance;

(c) providing improved socialisation among children belonging to all castes;

(d) addressing malnutrition; and

(e) giving social empowerment through provision of employment to women.

(ii) The Scheme has a long history, especially in the State of Tamil Nadu where it was introduced state-wide and later expanded in 1982. It was later on came to be adopted by many States in the Country. Indisputably, the State of Tamil Nadu is one of the pioneers of this scheme. For the first time, cooked meals to children studying in Corporation Schools were provided in the city of Madras as early as in the year 1923. However, in the year 1982, the Mid Day Meal Scheme was universalised for all the children upto Class 10.

(iii) In the year 1982, Government of Tamil Nadu floated a new scheme called the ‘Puratchi Thalaivar M.G.R. Nutritious Meal Programme’, which was implemented in child welfare centres for preschool children in the age group of 2-5 years and to primary school children in the age group of 5-9 years. Subsequently, the scheme was extended to noon meal centres in urban areas and also to school students in the age group of 10-15 years from the year 1984. The scheme not only provides nutritious food to school children, but it also provides greater employment opportunities for women, both in urban and rural areas. Under the said scheme, preference has to be given to widows and destitute women. The Government of Tamil Nadu from time to time has been issuing Government Orders for recruitment of Anganwadi Workers for the purpose of proper implementation of the said scheme. As a matter of fact, the main objective of the nutritious meal programme is to provide adequate nutrition to economically disadvantaged, to combat malnutrition among children, increase their literacy rate and to act as a potent incentive for increasing enrolment of children belonging to the economically poorer sections of the society and also to reduce drop-outs from schools.

(iv) It would not be out of place to refer to the Integrated Child Development Service (in short ‘ICDS’), which is perhaps the largest of all the food and supplementation programmes in the world, initiated in the year 1975 with the following objectives, as per the document prepared by the Planning Commission :

(a) To improve health and nutrition status of children between 0-6 years by providing supplementary food and by coordinating with State Health Departments to ensure delivery of required health inputs;

(b) To provide conditions necessary for pre-school children’s psychological and social development through early stimulation and education;

(c) To provide pregnant and lactating women with food supplements;

(d) To enhance the mother’s ability to provide proper child care through health and nutrition education; and

(e) To achieve effective co-ordination of policy and implementation among the various departments, to promote child development.

(v) In pursuance of the above objectives of ICDS, the Central Government floated a scheme known as the Mid Day Meal Scheme (MDMS) with the object of providing mid day meals to children studying in schools. In view of non- adherence to the Central Scheme by some States, the matter was brought to the notice of the Hon'ble Supreme Court by way of Public Interest Litigations, for the purpose of effective implementation of the said Scheme. The Hon'ble Supreme Court on its part issued directions to the Central Government, Union Territories and State Governments to implement the Mid Day Meal Scheme by providing every child studying in Government and Government aided middle schools, a prepared mid-day meal with a minimum content of 300 calories and 8-12 grams of protein on each day of school for a minimum of 200 days a year. Earlier, some of the State Governments were providing dry rations instead of cooked meals, which was changed to cooked food pursuant to the direction of the Supreme Court.

(vi) In the case of People’s Union For Civil Liberties vs. Union of India reported in (2004) 12 S.C.C. 104, where the Supreme Court was monitoring the implementation of the aforesaid scheme, when it was reported that Anganwadi Centres (AWCs) were operating from private houses, including those of the grain dealers, the Hon'ble Supreme Court issued necessary directions, inter alia, that contractors shall not be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals. The Hon'ble Supreme Court thereafter has been issuing various directions from time to time for proper implementation of the aforesaid scheme, especially for providing cooked meal to the school going children.

(vii) Government of Tamil Nadu have proposed to appoint Child Nutrition Worker at every Taluk all over Tamil Nadu and in order to achieve this Object, the Department of Social Welfare and Nutrition Meals Scheme issued a Government Order G.O.Ms.No.142 dated 06.07.2010.

(viii) By way of G.O.Ms.No.142 dated 06.07.2010, instructions were issued to make appointment in the ratio 1:4 i.e., one reserved and 4 unreserved and further more, the appointing Authority is to adopt the communal rotation ratio of 1:4 and the rule of the allotment for women and disabled, simultaneously.

(ix) Instructions further stipulate that as per G.O.Ms.No.241 Department of Public Servants and Reformation (K) dated 29.10.2007, 200 points communal rotation is fixed and in the allotment of O.Cs,3.5% is allotted to the Backward Christians and the Backward Muslims.

(x) In G.O.Ms.No.20 Department of Public Servants and Reformation (K) dated 10.02.2008, it is provided that once the appointments are made, in addition to the ratio 1:4, the communal rotation has to be adapted simultaneously, and the first place has to be given to the reserved and the next 4 places to be given to the unreserved of the same cadre of the communities among the common competitors, Scheduled Caste, Backward Class (Backward Christians and Muslims), M.B.C and Seer Marabinar, Backward Christians, Backward Muslims and Scheduled Tribes.

(xi) By G.O.Ms.No.101 Department of Public Servants and Reformation (K) dated 30.05.2008, the 200 points roster is modified and 3.5% allotment was made for the B.C. Christians and Muslims. Again in G.O.Ms.No.374 Department of Public Servants and Reformation (K) Dated 11.09.2008, it was directed that ratio of 1:4 is to be followed to one reserved and four unreserved, thereby 3.5% allotment for the backward Christians was reversed. Elaborate orders were given vide G.O.Ms.No.10Department of Public Servants and Reformation (K) dated 09.02.2009 to adopt the method of appointment of one reserved and four unreserved in one community, during appointments made through employment exchanges. It also provides that now, as per the Tamil Nadu Law 4 /2009, 200 points roster is altered in the places of the tabled communities, serial numbers 2, 32, 66, 102, 132 and 166 are allotted to the "Arunthathiyar" community and the order is issued vide G.O.Ms.No.65 Department of Public Servants and Reformation (K) dated 27.05.2009.

(xii) Government of Tamil Nadu have issued Orders for appointment of child nutrition worker, provided that candidate should be a married woman aged between 20 and 35 years and they should be a resident of very same locality or panchayat and passed 10th standard and in case of more than one person having same qualification, among the candidates, the senior age and higher marks obtained in the S.S.L.C exam and other additional qualification will be preferred.

(xiii) State of Tamil Nadu announced the recruitment of Nutritious Meals Organizer through G.O.Ms.No.72 dated 30.04.2012. This G.O reads that as the Hon'ble Chief Minister has announced in the State Assembly that 28,596 posts, which were vacant upto 31.07.2011 in the Nutritious Meal Centres functioning under Puratchi Thalaivar MGR Nutritious Meal Programme and Integrated Child Development Services Scheme shall be filled up. The details of available vacancies were called for from the concerned Head of Departments and orders were issued by the Principal Secretary to the Government to fill up total vacancies (28,596) of Noon Meal Organizers / Cook / Cook Assistant / Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helper under order Puratchi Thalaivar MGR Scheme and Integrated Child Development Services by direct recruitment. It also stipulated details of district wise and cadre wise vacancies.

(xiv) It is stated that the said G.O.Ms.No.72 dated 30.04.2012 refers to G.O.Ms.Nos.142, 163 and 4.

(xv) G.O.Ms.No.142 dated 06.07.2010 deals with reservation and mode of filing up of the posts by following reservation.

(xvi) G.O.Ms.No.163 dated 18.09.2010 prescribes the age limit, educational qualification and the distance norms, which are reported in G.O.Ms.No.4 dated 06.01.2011.

4. Among the grievances of the writ petitioners, the main grievance is the distance norms that was followed in the selection process.

5. Mr.K.Chellapandian, learned Additional Advocate General placed on record the Government Orders issued from time to time and also produced the Scheme of the Government, being implemented for appointment of Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helpers.

6. The Guidelines issued by the Ministry of Human Resource Development (Department of School Education and Literacy) issued in September 2006, shows that Mid Day Meal in Schools has a long history in India, which was started in 1925 for the disadvantaged children in Madras Municipal Corporation. It was in the mid 1980s, three States viz., Gujarat, Kerala and Tamil Nadu and the Union Territory of Pondicherry had universalized the cooked Mid Day Meal programme with their own resources for children studying in the primary stage. The Mid Day Meal was also provided to children in Tribal areas in some States like Madhya Pradesh and Orissa. In 1990-91, number of States increased to 12 viz., Goa, Gujarat, Kerala, Madhya Pradesh, Maharashtra, Meghalaya, Mizoram, Nagaland, Sikkim, Tamil Nadu, Tripura and Uttar Pradesh. In another three States viz., Karnataka, Orissa and West Bengal, the programme was being implemented with State resources in combination with international assistance. Whereas two states viz., Andhra Pradesh and Rajasthan were implementing the programme entirely with international assistance.

7. This programme was given a national recognition by Ministry of Human Resource Development. The State of Tamil Nadu therefore can take pride for being the first in country to think and implement a beneficial scheme of this nature and magnitude.

8. It was, in order to, implement the programme, different State Governments decided to appoint employees to carry out the scheme effectively.

9. State of Tamil Nadu has issued Government Orders / Instructions from time to time. It is therefore necessary to consider the different Government Orders issued from time to time, vis-a-vis consider its effect in the process of selection for appointment.

10. As per the Government Orders, placed on record, by the learned Additional Advocate General, the first instructions were issued vide G.O.Ms.No. 370 Backward Classes Welfare, Nutritious Meal Programme and Social Welfare Department dated 16.04.1989 which stipulated that the State of Tamil Nadu introduced the Scheme for supply of free Nutritious Noon Meal to the poor children covering the age group from 2 to 10 with effect from 01.07.1982. In order to implement this scheme, the Government sanctioned for each of the school centres one post of part time Cook and one Helper, to assist the cook, to be appointed from among the local residents. Each centre was ordered to be managed by the Child Welfare Organiser with two Child Welfare Assistants under the overall control of the Block Development Officer. However, vide G.O.Ms.No.277 Public (CMNMP) Department dated 22.02.1983, the Government sanctioned 33,831 posts of part time Nutritious Meal Organisers, one in each school feeding centre. The persons so appointed was only paid honorarium.

11. Thereafter, vide G.O.Ms.No.1243 Public (CMNMP) Department dated 31.07.1984, the Government created 3360 temporary posts of Part Time Nutritious Meal Organizers, Cooks and Helpers for appointment in school feeding centres and extended the scheme to school children in the age group of 10 to 15 from 15.09.1984. These employees were not covered under any Service Rule, being only part time employees appointed on honorarium.

12. It was for this reason, G.O.Ms.No.370 dated 16.04.1989 was issued to give job security to the part time employees. A decision was taken to make the employees working under the Programme as Permanent Part-time employees of the respective local bodies and these employees became Permanent Part - time employees of respective local bodies i.e., Panchayat, Panchayat Union, Municipalities and Municipal Corporation, excluding the employees of Integrated Child Development Centre.

13. The State Government, thereafter issued G.O.Ms.No.918 Backward Classes Welfare, Nutritious Meal Programme and Social Welfare Department dated 03.11.1989, for laying down the selection process of the candidates for appointment of Organisers for Child Welfare Centres and Nutritious Meal Centre. Though this G.O., mentioned G.O.Ms.No.215 Backward Classes Welfare, Nutritious Meal Programme and Social Welfare Department dated 09.12.1988 and number of letters to regulate the appointment.

14. Vide G.O.Ms.No.918 dated 03.11.1989, a procedure was prescribed for selection of candidates for the post of Organisers under Tamil Nadu Government Nutritious Meal Programme with effect from 09.12.1988. It was stipulated that whenever a vacancy for the post of organizer in Nutrition Meal Centre arose in the Panchayat area, the Deputy Inspector of Schools was to intimate the vacancy to the Panchayat Union Commissioner, having jurisdiction of that area, who was to inform the Panchayat President within a week of availability of vacancy, who was to prepare the panel of not less than 3 and not exceeding 6 per vacancy along with the Bio-data of individual and thereafter, get approval of Panchayat Board for appointment.

15. The appointments were to be made as per the procedure laid down under the Rules. One of the qualifications prescribed was 10th Standard. The G.O., also provided relaxation of age by adopting the age limit of 18 years in the Hill area and upto 20 years in backward and other areas, which was to continue in force. But, this age relaxation was to be adopted in case of persons in the age group 25 to 40 were not available.

16. Thereafter, vide G.O.Ms.No.837 Public (CMNMP) Department dated 24.05.1988, the Rule of Reservation in matter of appointment of Organisers with the cycle of rotation of communities were adopted. The Rule laid down vide the G.O., is that the appointment for the post of Noon Meal Organizers in Nutritious Meal Centres in all the School Centres in Panchayat Union areas was to be by the local people in the respective centre. It was stipulated that the vacancies of Noon Meal Organizers have to be advertised in a local daily calling for application with reference to the qualification now prescribed by following the principle of communal rotation while making the appointment to the post. The applications after scrutiny were directed to be submitted to the District Collector for approval and the Collector has been made the appointing Authority, but no Selection Committee was constituted. A provision was also made with regard to Corporation Schools wherein it was stipulated that application from candidate will be invited in dailies and appointment made after selection through selection committee and in case Noon Meal Organiser in the Municipal School, the appointment has to be made as far the said G.O. through advertisement through a committee. In case of appointment of noon meal organiser in minority / non minority aided school, different procedure was laid down.

17. State of Tamil Nadu, thereafter issued G.O.Ms.No.125 Social Welfare and Nutritious Meal Programme Department dated 04.09.2008. This G.O. was issued to appoint qualified Nutritious Meal Cooks (414 Members) and Cook Assistants (396 Members) totalling 810 employees as Nutritious Meal Organiser and elaborate provisions were made to Cook Assistants. Provisions were made to fill up Nutritious Meal Cooks through promotion.

18. G.O.Ms.No.142, Social Welfare and Nutritious Meal Programme (SW7) Department dated 06.07.2010 was issued in order to make appointment to 13753 vacancies by direct recruitment. Vide this Government Order, in order to implement the Judgment of the Hon'ble High Court, the following decisions were taken :-

(a) Rules of Reservation should be followed on communal rotation basis while appointing Anganwadi Worker, Mini Anganwadi Workers and Anganwadi Assistances in Integrated Child Development Services Scheme Centres and also in the appointment of Cook, Assistant in Puratchi Thalaivar MGR Nutritious Meal Scheme Centres by direct recruitment.

(b) The Rule of Reservation which is already in vogue should be continued in the appointment of Nutritious Meal Organizer.

(c) Rule of Reservation should be followed in all the above said posts considering the district as one unit.

(d) The orders that shall be issued periodically by the Personnel and Administrative Reforms Department in concern with the Rule of Reservation should be adhered to.

19. G.O.Ms.No.142 {Social Welfare & Nutritious Meal program (SW7)

Department} dated 6/7/2010, reads as under:

“Abstract Social Welfare and Nutiritious Meal program Department – Anganwadi Workers – Mini Anganwadi Workers and Anganwadi Helper in Integrated Child Development Services Scheme – Nutritious Meal Organizer, Cook and Assistant Post and Puratchi Thalaivar MGR Nutritious Meal Centres – Filling up post following Rule of Reservation – Orders issued.

Social Welfare & Nutritious Meal program (SW7) Department G.O.(Ms)No.142 Dated : 06.07.2010 Read :

1. G.O.(Ms) No.149, Social Welfare and Nutritious Meal program (NMP2) Department, dated 20-11-2009

2. Writ Petition No.(W.P.No.10748/2009, From 3840 to 3842,3950,5116,5117 and 6645/2010 and Miscellanies Petitions (MP No's) from 1 to 2/2009 and 1/2010, based on the Judgement of Madras High Court dated 19.04.2010 referred above petitions.

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ORDER :

In order to fill up the vacancies arising in Puratchi Thalaivar MGR Nutritious Meal Centres for the posts of Nutritious Meal Organizer, Cook, Cook Assistant and that of Angawadi workers, Mini Anganwadi Workers and Anganwadi Helpers posts that may arise in integrated Child Development Services Centres periodically, statistics for which have been obtained from the District Collectors and orders issued.

2) In the G.O. First read above permission has been granted to the respective District Collectors to fill up the existing 13753 Vacancies by direct recruitment.

3) By the above said order the procedure for direct recruitment to vacancies existing in all nutritious meal centres and Anganwadi centre in Tamil Nadu were taken by the District Collectors. Rule of Reservation is being followed only to the appointment of Nutritious Meal Organizer posts, in Nutritious Meal Centre in school.

4) In such circumstances, few persons filed writ petition (W.P. Nos) 10748/2009 from 3840, 3842 and 3950,5116, 5117 and 6645/2010 and various petitions No (M.P.Nos) 1 and 2/2009 and 1/2010 in Chennai High Court pleading appointment as Angawandi Helpers following Rule of Reservation in Anganwadi centres. The Chennai High Court has given judgement on these petitions on 19.04.2010 as below :

"In the light of the above, this court has no hesitation to reject the stand taken by the Respondent State and by giving a positive direction to provide for Reservation in terms of Tamil Nadu Act 45/1994, and also in the light of the interim order dated 20.04.2004 passed by the Supreme Court in W.P(C)No.196of 2001 in People's Union for Civil Liberties, Rajasthan Vs. Union of India and to provide for reservation for SC/STs. Till such time they provide such rules of reservation, the State is forbidden to fill up such large number of posts (as many as 20000 posts) without due representation to SC/ST Communities ignoring the Constitutional Mandate"

5) The Government has accepted the judgment of Chennai High Court and issue order as below.

a) Rules of Reservation should be followed on communal rotation basis while appointing Anganwadi Worker, Mini Anganwadi Workers and Anganwadi Assistance in Integrated Child Development Services Scheme Centres and also in the appointment of Cook, Assistant in Puratchi Thalaivar MGR Nutritious Meal Scheme Centers by direct recruitment

b) The Rule of Reservation which already is in vouge should be continued in the appointment of Nutritious Meal Organizer.

c) Rule of Reservation should be followed in all the above said posts considering the district as one unit.

d) The orders that shall be issued periodically by the Personnel and Administrative Reforms Department in concern with the Rule of Reservation should be adhered to.

6) The Head of Departments, District Collectors and Commissioner of Chennai Corporation are requested to stringently adhere to the above said orders.

(BY ORDER OF THE GOVERNMENT) P. RAMA MOHAN RAO Principal Secretary to Government”

20. G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department dated 18.09.2010, was issued with regard to appointment for the post of Nutritious Meal Organizer. It provided that only women candidates could apply for the post. In the case of Commissioner of Panchayat Union / Municipality / Corporation, the Commissioner has to conduct the Interview and issue appointment order after approval of the District Collector. The appointing authority is the District Collector and for Chennai Corporation, Commissioner of Social Welfare. The educational qualification for general category and downtrodden was 10th standard, whereas Scheduled Caste is 8th Standard. The age for general category was 21 years and not exceeding 40 years and for Widows 20 to 40 years. The distance between the residence and work was fixed as 3 K.M. The rule of reservation was reiterated and 25% of the posts should be filled up as under:-

1. On promotion - 25 %

2. Widows / Destitute - 25 %

3. Others (By direct recruitment)-50% Panchayat Union Municipal Commissioner, Commissioner of Corporation or District Collector, as the case may be has to advertise vacancies by prescribing the educational qualification, age, distance criteria and other eligibility. It was stated that appointment should be restricted to Women candidates only. The Commissioner of Panchayat Union / Municipality / Corporation were directed to examine and conduct the Interview and send the file to the Personal Assistant (NMP) for approval for appointment. The educational qualification for general and downtrodden for Cook was 8th standard pass or fail, for Assistant, 5th standard pass or fail, for Cook to know how to read and write. The age from general category and downtrodden (SC) was fixed at 21 and not exceeding 40 years, Scheduled Candidates from 18 to maximum 40 years, Widows and destitutes from 20 to 40 years. The distance criteria was maintained at 3 K.M. The rule of reservation was directed to be applied and criteria was made for promotion and 25% of the posts shall be promotion posts cooks and Assistants as Nutritious Meal Organiser. A provision was also made that 25% of the remaining number of posts, after filling up the allotted promotion posts should be filled with widows / destitute and 50% for direct recruitment. It provided that all advertisement were to be issued for inviting applications.

21. G.O.Ms.No.163 {Social Welfare & Nutritious Meal program Department} dated 18/9/2010 reads as under:-

“Abstract Puratchi Thalaivar MGR Nutritious Meal Centres – Appointment for the post of Nutritious Meal organizer, Cook, Assistant, amendment in appointment procedures – Orders issued.

Social Welfare & Nutritious Meal program Department G.O.(Ms)No.163 Dated : 18.09.2010 Read :

1. G.O.(Ms)No.215, Backward Class Welfare, Nutritious program and Social Welfare Department, Dated 9.12.1988.

2. G.O.(Ms)No.918, Backward Class Welfare, Nutritious Proramme and Social Welfare Department, Dated 3.11.1989.

3. G.O.(Ms)No.112, Social Welfare and Nutritious program Department, Dated 29.04.1993.

4. G.O.(Ms)No.203,Social Welfare and Nutritious program Department, Dated 19.8.2005.

5. G.O.(Ms)No.11, Social Welfare and Nutritious program Department, Dated 22.01.2007.

6. G.O.(Ms)No.66, Social Welfare Department, Dated 9.5.2007.

7. G.O.(Ms)No.19, Social Welfare and Nutritious program department, Dated 16.2.2009.

8. Thanjavur District Collector's letter No.1259/08/NMP1/dated 23.9.2009.

9. Social Welfare Commissioner's letter no.22243/NMS(F-1) 2009, dated 24.3.2010.

10.G.O.(Ms)No.142,Social Welfare and Nutritious program(SW7) Department, Dated 6.7.2010.

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ORDER :

Various orders have been issued in connection with the appointments of Puratchi Thalaivar MGR Nutritious Meal organizer Cook and Assistants for long ago. After making a review, the District Collector of Thanjavur and Commissioner of Social Welfare have sent proposal to Government and requested the Government to issue a consolidated order taking into consideration of the present situation.

2. The Government after careful examination of the proposal and decided to fix the following criteria for the educational qualification age and distance criteria for the direct recruitment of Nutritious Meal Organizer Cook and Assistant and issued orders accordingly.

Nutritious Meal Organizer Advertisement regarding the vacancies Advertisements regarding vacancies in school nutritious meal centres, prescribing the educational qualification, age, distance criteria and other eligibilities of the applicants should be made by the commissioner of Panchayat Union. Municipal Commissioner corporation or District Collector.

At the time of advertisement inviting application for vacant posts the specification that women candidate only can apply should be indicated The Commissioner of Panchayat Union/Municipality/Corporation after receiving the application, should verify them and conduct interviews and issue appointment orders after the approval of the District Collector.

Appointing officer in districts – District collector Chennai corporation – Commissioner of Social Welfare Eligibilities for Nutritious meal organizer Only women should get appointed in nutritious meal scheme Educational qualification

• Those from general category and downtrodden should have passed tenth standard

• Those of Scheduled Tribe should have passed eighth standard.

Age limit

• Those from general category and low trodden should have completed 21 years age and not exceeding 40 years

• Widows an destitute should have completed 20 years conduced not exceeding 40 years Other Qualification The distance between the applicants residence and the place of work should be within 3 Kms.

Should be competent to maintenance Nutritious meal centre accounts separately.

Regarding appointment of nutritious meal organizer, the existing rule of reservation with the entire District as one CPI centre should be followed.

Adherence the orders that will be issued by the Personnel & administrative resource periodically is mandatory.

There is no selection committee for Nutritious meal organizer posts.

25% of the approved posts shall be filled for widows/destitutes (the filling up of the 100 posts should be done as below.

On promotion : 25% Widows /Destitutes : 25% (by direct recruitment) Others : 50% (by direct recruitment) ---- 100% Eligibilities for cook and Assistants Advertisements as to the vacancies existing as school nutritious meal centres, prescribing the educational qualification, age, distance criteria and other eligibilities of the applicants should be made by the commissioner of Panchayat Union, Municipal Commissioner, Commissioner of corporation or District Collector.

At the time of advertising inviting application for vacant posts the specification that women candidate only can apply should be indicated.

The Commissioner of Panchayat Union / Municipality / Corporation on getting the application should examine them and conduct interview and send the file to the personal Assistant (NMP) and on getting his approval should give the appointment orders.

Only women should be appointed in cook/Assistant posts.

Appointing officer – The Personal Assistant to District Collector (NMP) (excepting Chennai Corporation) Chennai Corporation – Commissioner of social welfare Education Qualification General Category and down trodden Cook - 8th Standard pass (or) fail Assistant - 5th Standard pass (or) fail Cook – know to read and write Assistant – know to read and write Age

• Those from general category and downtrodden (SC) should have completed 21 years age and not exceeding 40 years

• SC candidates should have completed 18 years and not exceeding 40 years

• Widows and destitutes should have completed 20 years and not exceeding 40 years Distance criteria The distance between the applicants residence and place of work should be within 3 Km (Panchayat – hamlet revenue district should not be taken into account) Rule of Reservation

• G.O.(Ms)No.142 SW(and)N.M.P.(SW7) Department dated 6.7.2010 should be followed for the appointment of nutritious meal organizer, cook and cook assistants Promotion

• The assistants shall be promoted as cook based on their qualification

• Of the sanctioned posts for nutritious meal organizer 25% shall be promotion posts coks and assistants as nutritious meal organizer. They should have 5 years experience as cook for getting promotion or 10 years of experience in assistants posts or 10 years of experience in Assistant + Cook posts.

• 25% of the remaining number of posts, after filling up the allotted promotion posts should be filled with widow/destitute

• For the sanctioned Assistant post when it is filled by Direct Recruitment 25% should be filled with widows /destitute centre. When 100 Assistant post vacancies are permitted. It should be filled up as below.

Widows /Destitutes : 25% (by direct recruitment) Others : 75% (by direct recruitment) ---- 100% ----

3. In para 2 above qualification for the Nutritious Meal Centre employees have been modified and therefore the government orders from 1 to 7 read above are suitably modified.

4. From the date of issue of this order all advertisement that shall be issued inviting applications for the post of nutritious meal centre worker should follow this order for appointment.

5. The commissioner of Social Welfare/District Collector are instructed to bring this order to the notice of monitoring and review officers.

(BY ORDER OF THE GOVERNMENT)

A. Sukumaran Secretary to Government”

22. G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme (NMP) Department, dated 06.01.2011, was issued with regard to Nutritious Meal Workers. This also stipulated that advertisement regarding details of vacancies and conduct of interview was to be carried out and out of the persons who applied, the School Management was to recommend 5% and District Collector was authorised to issue appointment letter to the persons recommended by the School in the case of aided minority schools and whereas in the case of non- minority Government aided school, the appointment procedure as applicable to Panchayat Union / Municipal Corporation schools as noted above was to be followed.

23. G.O.Ms.No.4 {Social Welfare & Nutritious Meal program (NMP) Department} dated 6/1/2011 reads as under:-

“Abstract Nutritious Meal program PTMGR Scheme – Appointment of Nutritious Meal Workers in the Minority Government Aided Schools and Non-Minority Government Aided Schools – Amendment in the existing appointment procedures - Orders issued.

Social Welfare & Nutritious Meal program (NMP) Department G.O.(Ms)No.4 Dated : 06.01.2011 Thiruvalluvar Aandu, 2041 Margazhi,22 Read :

1. G.O.(Ms)No.918, Social Welfare and Nutiritious Meal program Department, dated 3-11-1989

2. G.O.(Ms)No.294, Social Welfare and Nutritious Meal program Department, dated 21.10.1993

3. Government Letter No.31865/NMP1/93 dated, 21.12.1993

4. G.O.(Ms)No.33, Social Welfare and Nutritious Meal program Department, dated 5.2.1993

5. G.O.(Ms)No.206, Social Welfare and Nutritious Meal program Department, dated 13.9.1996 Read also :

6. From the Collector of Thanjavur Letter No.1259/08 NMP 1, dated 23.9.2009

7. G.O.(Ms)No.142, Social Welfare and Nutritious Meal program Department, dated 6.7.2010

8. G.O.(Ms)No.163, Social Welfare and Nutritious Meal program Department, dated 18.8.2010 ------

ORDER :

Various Government Order's regarding appointment of Nutritious Meal Workers in the Government Aided Minority Schools and Non-Minority Government Aided Schools under PTMGR Nutritious Meal program were issued several years ago. The District Collector Thanjavur has requested the Government to consolidate the orders read 1 to 5 with certain modification taking into consideration of the present situation.

2. After careful examination of the above proposal, the Government have decided to follow the procedures mentioned below in the appointment of Noon Meal Organizer, Cook and also Cook Assistant in the Government Aided Minority Schools / Non-Minority Government Aided Schools and issue orders accordingly.

Appointing Authority

• In respect of appointment of Noon Meal Organizer the District Collector will be appointing authority.

• In respect of appointment of Cook and Cook Assistant Personal Assistant to the District Collector (NMP) will be the appointing authority. Only the Appointing Authority has the power to fill up the vacancies of Nutritious Meal Worker of a School by transfer of Service or by promotion or by direct recruitment.

Appointment Procedure Nutritious Meal Centre of Government Aided Minority School

• In respect of appointment of Nutritious Noon Meal Organizer, Cook and Cook Assistant for Rural areas, the Commissioner of Panchayat Union and for Urban areas Commissioner of Municipality/Corporations should make advertisement regarding the details of vacancies and conduct interview after receiving applications and scrutinize the same and prepare a list of eligible candidates. The list should be prepared on the basis of eligibility arrived at in the interview and Manager /Head Master of the School concerned should be allowed to go through the list of eligible persons. The School Management may recommend 5 persons from the list within 5 working days after verifying the list. After following the above said procedure in the appointment of Noon Meal Organizer, the District Collector should issue the appointment order to 1 person out of the 5 persons recommended by the Manager/Head Master of the School concerned. In respect of Cooks, Cook Assistant appointment order should be issued by the Personal Assistant (Nutritious Meal program) to the District Collector.

• In respect of Minority schools to fill up the vacancies for Noon Meal Organizers, Cook and Cook Assistant communal rotation need not be followed.

Nutritious Meal Centers for Non-Minority Government Aided School

• In respect of appointment of Nutritious Meal Workers, in the Non-Minority Government Aided Schools orders in G.O.(Ms)No.163, Social Welfare and Nutritious Meal program Department, dated 18.8.2010 and G.O.(Ms)No.142, Social Welfare and Nutritious Meal program Department, dated 6.7.2010 regarding communal rotation method should be followed. The appointment procedure for Nutritious Meal Workers will be similar to the Government / Local body (Panchayat Union / Municipality / Corporation Schools) followed in the appointment for Nutritious Meal Workers (Organizer, Cook, Cook Assistant) be followed in the Non-Minority Government Aided Schools.

3. Since some modifications regarding appointment of Nutritious Meal Workers in the Government Aided Minority School / Non-Minority Government Schools have been maide para-2 above necessary amendments are made to the orders mentioned from 1 to 5 above.

4. After the issue of this order all appointments for Nutritious Meal Workers in all the Nutritious Meal Centres of Government Aided Minority Schools/ Non-Minority Schools should be made by following the procedures mentioned in this order.

5. Director of Social Welfare / District Collector are instructed to bring this order to the notice of Monitoring and Inspecting Officials (By order of the Governor) Mohan Pyare, Principal Secretary to Government”

24. Government, thereafter issued G.O.Ms.No.72, Social Welfare and Nutritious Meal Programme (NMP2) Department, dated 20.04.2012, notifying the 28,596 posts in different districts for appointment, which have been noticed above.

25. G.O.Ms.No.72 {Social Welfare & Nutritious Meal program (NMP2) Department} dated 20/4/2012 reads as under:-

“Abstract Social Welfare and Nutritious Meal program Department – permission to fill up the vacancies in the Nutritious Meal Centres function ing under Puratchi Thalaivar MGR Nutritious Meal program and also in Anganwadi Centres functioning under Integrated Child Development Services Scheme - Orders issued.

Social Welfare & Nutritious Meal program (NMP2) Department G.O.(Ms)No.72 Dated : 20.04.2012 Thiruvalluvar Aandu, 2043 Chithirai, 18 Read :

1. G.O.(Ms)No.142, Social Welfare and Nutritious Meal program Department, dated 6.7.2010

2. G.O.(Ms)No.163, Social Welfare and Nutritious Meal program Department, dated 18.8.2010

3. G.O.(Ms)No.4, Social Welfare and Nutritious Meal program Department, dated 6.1.2011

4. Director of Social Welfare Roc No.12766/Nutritious meal program Admn. 1/2011, dated 7.10.2011

5. Principal Secretary/Special Commissioner, Integrated Child Development Services, Chennai – 113 Letter Roc.No.13921/E3-2/2011 dated 4.10.2011 ------

ORDER :

Hon'ble Chief Minister has announced under Tamil Nadu Legislative Assembly Rule No.110 on 12.09.2011 that 28,596 posts which are vacant upto 31.7.2011 in the Nutritious Meal Centres functioning under Puratchi Thalaivar MGR Nutritious Meal program and Integrated Child Development Services Scheme shall be filled up.

2. As per the above announcements details regarding estimate of vacancies upto 31.7.2011 in the Nutritious Meal Centres functioning under PTMGR Nutritious Meal program and Anganwadi Centres under Integrated Child Development Services were received from the concerned Head of Department's

3. The Director of Social Welfare / Principal Secretary / Special Commissioner, Integrated Child Development Services Chennai -113 have requested the Government to accord permission to fill up the vacancies indicated below through the district Collector / Head of Department's by the Selection committee concerned.

Noon Meal organizer - 4,373 Noon Meal Cook - 5,717

4. In order to implement the announcement made by Hon'ble Chief Minister the Government have examined the proposals received from the Head of Departments/ and accordingly issued orders to fill up the total vacancies (28,596) of Noon Meal Organizers/Cook/Cook Assistant/Anganwadi Worker/Mini Angawadi Worker/Anganwadi Helper under order Puratchi Thalaivar MGR Scheme and Integrated Child Development Services by direct recruitment. Further details of district wise and cadre wise vacancies of all districts except Pudukottai are given in annexure 1 & 2. It has been instructed not to fill up the vacancies in Pudukottai District. Orders were issued permitting Director of Social Welfare, Principal Secretary/ Special Commissioner, Integrated Child Development Services also District Collectors to fill up the vacancies by following the Government Orders mentioned from 1 to 3 read above and also as per the existing procedure by receiving applications from the eligible persons through advertisements and by following the conditions prescribed for educational qualifications, age limit, reservation method, selection method of employee, distance criteria and percentage for promotion by the respective selection committee for the posts.

5. Instructions were issued that after the selection process is over the pay to be sanctioned to them as per the existing procedure should be debited under the relevant head of account which is in operation.

6. The Head of department and commissioner of Chennai Corporation are instructed to send the details of vacancies filled up and action taken in this regard and send a report to the Government.

7. This order issues with the concurrence of Finance Department vide U.O.No.81/DS(VS)Fin/2011, dated 15.11.2011.

(By order of the Governor) ASHOK DONGRE Principal Secretary to Government”

26. Thereafter, G.O.Ms.No.139 Social Welfare and Nutritious Meal Programme (NMP1) Department dated 28.05.2012 has been issued. This was to provide 3% reservation for Differently Abled Persons while giving appointment to Noon Meal Anganwadi Workers and Helpers.

27. Government have also issued G.O.Ms.No.110 Social Welfare and Nutritious Meal Programme (SW7) Department dated 14.05.2012, providing instructions regarding appointment of Anganwadi Workers. The rules laid down reads as under:-

"ANGANWADI WORKER

2.1 Method of Recruitment:-

The District Collector concerned except Chennai will call for applications for filling up of vacancies in the respective Anganwadi Centre indicating the eligibility criteria through press release. The HOD of Integrated Child Development Services Department will call for applications in respect of vacancies in the respective Anganwadi Centre in Chennai District.

2.2. Appointing Authority:-

The District Collector is the appointing authority for the post of Anganwadi Worker except Chennai District. The Commissioner / Director Department of Integrated Child Development Services Scheme is the Appointing Authority for the post of Anganwadi Worker in respect of Chennai District.

2.3. Transferring Authority The District Collector is the transferring authority for the post of Anganwadi Worker except Chennai District. The Commissioner / Director Department of Integrated Child Development Services Scheme is the Transferring Authority for the post of Anganwadi Worker in Chennai District.

2.4. Mode of Recruitment The Government direct that 25% of posts of Anganwadi Worker shall be reserved to be filled up from amongst the Anganwadi Helper who have put in 10 years of satisfactory service and also possess requisite qualifications (age, education etc., ) for selection of Anganwadi Workers.

2.5. Age Limit Candidates who have completed 25 years and who are not more than 35 years of age will be recruited. The upper age limit for all categories shall be extended by 5 years (five years) for Widows, destitute and candidates in Hill areas (35+5 = 40 years) and Minimum age for candidates in Hill areas shall be reduced by 5 years (25-5=20 years)

2.6. Gender:-

As the Integrated Child Development Services Scheme aims to improve the Nutritional and health status of children of 6 months to 3 years, pregnant women and nursing mothers providing package of services including Supplementary Nutrition, Pre-School Education, immunization, health check up referral services etc., the Government direct that female candidates only be appointed in the post of Anganwadi Worker.

2.7. Educational Qualification:-

Educational qualification recommended is a pass in 10th Std for Anganwadi Worker. Educational qualification shall be relaxed to 8th Std for candidates in Hill areas.

2.8. Residency:-

The Government direct that the applicant should be the resident of the same hamlet. If no eligible / suitable candidate from the same hamlet is available, the candidates from the neighbouring hamlets of the same panchayat of the particular centre shall be considered. Even then, eligible / suitable candidates are not available, the candidates from the neighbouring panchayats located within 10 Kms shall be considered for the appointment of Anganwadi Worker.

In respect of Anganwadi Centres in the Municipality / Corporation area, the applicant residing in the same ward shall be considered. If no eligible / suitable candidate from the same ward is available, the candidates from the nearby ward shall be considered. Even then the eligible candidates are not available, candidates from the Division shall be considered for appointment of Anganwadi Worker.

2.9. Proof of Residence:-

The Government direct that the following documents shall be considered for the Proof of Residence.

1. Voter I.D

2. Panchayat / Municipality / Corporation Tax Receipt

3. Ration Card

2.10. Communal Rotation:-

The Government direct that rule of Reservation and communal rotation shall be strictly followed in the appointment of Anganwadi Worker taking the concerned district as one unit as per orders issued in the G.O.8th read above. The Government further direct to follow 3% reservation for the Different Abled Persons with Loco Motor disability (i.e.) orthopedically Different Abled Persons who are capable of handling small children (below 6 years) of their own, as ordered in Government Letter 10th read above.

2.11. Selection Committee:-

The Government direct, that the selection committee for the recruitment of Anganwadi Worker in all districts and Chennai shall be as follows:-

For all Districts except Chennai:-

1. District Programme Officer

2. Deputy Director (HS)

3. Child Development Project Officer (concerned) Selection Committee for Chennai:-

1. Deputy Director (ICDS) O/o. Principal Secretary / Special Commissioner, Integrated Child Development Services, Chennai - 113.

2. Joint Director / Deputy Director (Health)

3. District Programme Officer, Chennai

4. Child Development Project Officer (concerned)

2.12. Retirement Age:-

The Government direct that completion of 60 years shall be the retirement age for Anganwadi Worker."

28. Thereafter, another G.O.Ms.No.206, Social Welfare and Nutritious Meal Programme (SW7) Department, dated 04.07.2012 has been issued. In the said G.O., age relaxation was considered and the decision taken reads as under:-

“1. The existing upper age limit stipulated in G.O.Ms.No.110, Social Welfare and Nutritious Meal Programme Department, dated 14.05.2012 in the appointment of Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helper may be relaxed by 3 years for the differently abled persons.

2. The existing upper age limit stipulated in G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 for the appointment of Noon Meal Organiser may be relaxed by 3 years for the differently abled persons.”

29. Challenging G.O.Ms.No.72, Social Welfare and Nutritious Meal Programme Department, dated 30.04.2012, batch of writ petitions were filed in W.P.(MD)Nos.4451 of 2012 etc., batch.

IMPUGNED ORDER OF WRIT COURT DATED 01.10.2012:-

30. Writ Court vide common order dated 01.10.2012, has ordered hereunder:

“83. In view of the law laid down and the Government Order issued from time to time, the picture which emerges is as under:-

(i) The G.O.Ms.No.142 dated 06.07.2010 makes reservation in the ratio of 1 : 4 and to adopt communal rotation in the ratio of 1 : 4 including reservation for women and disabled.

(ii) Again in G.O.Ms.No.20 dated 10.02.2008 it is laid that communal rotation has to be adopted simultaneously.

(iii) In G.O.Ms.No.101 dated 30.05.2008, the 200 points roster is modified by making 3.5% allotment posts to be reserved for B.C.Christians and Muslims, which subsequently, in the case of Christian reversed vide G.O.Ms.No.374 dated 11.09.2008.

(iv) The G.O.Ms.No.10 dated 09.02.2009 lays down the table for reservation of different communities in 200 points roster.

(v) The G.O.Ms.No.72 dated 30.04.2012 shows the total vacancies position in each district to be filled up. For example, in Madurai District, the total posts to be filled up are 588 and in Erode District 703 and so on.

(vi) In G.O.Ms.No.163 dated 18.09.2010, 25% posts are reserved for promotion and another 25% for widows / destitutes.

(vii) G.O.Ms.No.110 dated 14.05.2012 is laying down the method of recruitment. The District Collector, except Chennai, is the competent Authority to invite application by issuing press release, whereas the Head of Department of Integrated Child Development Services is to invite and consider the application in Chennai District. The District Collector has also been given power to transfer the employees appointed or serving. It also makes reservation of 25% of the posts for promotion from Anganwadi Workers, who have been put in ten years of satisfactory service.

84. The object sought by these Government Orders cannot be achieved if the reservation is based on villages, as it will not be possible to make provision for promotion of 25% against one post as Anganwadi Worker though senior will not be promoted because of the bar of 3 K.M. It also prescribes the educational qualification. Though the rule makes provisions for extending 3 K.M to 10 K.M., but again, it cannot be said to be workable.

85. The process of selection therefore by selecting the candidates based on village reservation cannot be sustained in law, being unconstitutional, therefore, the whole process of selection stands vitiated being hit by Articles 14 and 16 of the Constitution of India, as the process of selection has resulted in denial of consideration to all the eligible persons.

86. Consequently, all these writ petitions are disposed of.

A writ in the nature of Certiorari is issued, quashing the selection in pursuance to G.O.Ms.No.72 Social Welfare and Nutritious Meal Programme Department dated 30.04.2012.

A writ in the nature of Mandamus is also issued, directing the respondents

(i) to consolidate all the Government Orders / Instructions dealing with appointment of Noon Meal Organizers / Cook / Cook Assistant / Anganwadi Worker / Mini Anganwadi Worker / Anganwadi Helper under the order of Puratchi Thalaivar MGR Scheme and Integrated Child Development Services by direct recruitment to have clear picture regarding appointments ;

(ii) to invite applications for all the posts in the District from all the eligible candidates. The advertisement should indicate the posts, reservation for each reserved categories and posts for general category, disabled etc., The advertisement should also disclose eligibility conditions regarding age, qualification, additional qualification, if any, so as to enable the applicant to apply for the post.

(iii) to constitute the Selection Committee to consider the merit of every eligible candidate, and thereafter selection be made purely on merit, subject to reservation and communal rotation as per criteria to be fixed by the Selection Committee to assess the merit;

(iv) in order to achieve the object of having local person to man the post, the selected candidate can be posted in his village, subject to right of transfer to District Collector as envisaged under the Government Instructions. In case of two or more persons are selected from the same village, then they can be posted to nearby village. It is for the State Government to decide.

Keeping in view the fact that the posts were advertised as back as on 30.04.2012, respondents are directed to carry out this exercise, and make appointments preferably within two months of receipt of certified copy of this order.

No costs. Consequently, the connected miscellaneous petitions are closed."

31. Being aggrieved by the common order passed by the Writ Court, quashing the selection in pursuance to G.O.Ms.No.72, Social Welfare and Nutritious Meal Programme Department, dated 30.04.2012 and further directions, State filed Writ Appeal (MD) Nos.792 of 2012, 849 to 855 of 2012, 924 to 933 of 2012, 62 of 2013 and 63 of 2013, challenging the common order of the Writ Court dated 01.10.2012 passed in W.P.(MD)Nos.4451 of 2012 etc., batch.

32. Likewise, Writ Appeal (MD) No.841 of 2012 has been filed by one M.Meenalakshmi, challenging the common order of the Writ Court dated 01.10.2012, passed in W.P.(MD)Nos.4451 of 2012 etc., batch on the ground that appointment to the post of Anganwadi worker cannot be based on residence.

33. Similarly, challenging G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010, laying down other qualification of 3 Kms., distance for consideration for appointment and G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, batch of writ petitions were filed in W.P.(MD)Nos.7981 of 2012 etc., batch.

IMPUGNED ORDER OF WRIT COURT DATED 17.10.2012:-

34. The Writ Court vide common order dated 17.10.2012, has ordered hereunder:

“66. For the reasons stated herein above, the impugned part of G.O.Ms.No.163 dated 18/9/2010 in laying down additional qualification of 3 Kms., criteria is ultra vires of the Constitution being violative of Article 16 as it has denied the right of consideration for the post to all the eligible persons. This defect cannot be cured by reserving the Village on rotational reservation basis. This clause also violates the condition laid down under G.O.Ms.No.11 making each District as a Unit and thereby making the cadre of Noon-Meal Organisers as a District cadre where the employer can also be transferred.

67. G.O.Ms.No.4 is also unconstitutional, firstly, for the reason that once the appointment under the Noon Meal Scheme is by the Collector, there can be no discrimination between the Schools. Further more, the G.O.Ms.No.4 is also arbitrary and violative of Article 14 of the Constitution of India and it gives unbridged and uncontrolled jurisdiction to the Collector of his P.A to select one of the five persons recommended irrespective of the merit. The person most meritorious has a right of appointment which cannot be defeated in an arbitrary manner at the whims and fancies of the appointing authority.

68. For the reasons stated herein above, these writ petitions are allowed. The impugned part of G.O., 163 dated 18/8/2010 laying down other qualification of 3 Kms., distance for consideration for appointment is declared ultra vires, unconstitutional and ordered to be quashed.

69. The G.O.Ms.No.4 dated 6/1/2011 is also declared as ultra vires the Constitution being violative of Article 14 of the Constitution.

70. A writ in the nature of mandamus is issued directing the respondents

(i) To consolidate all the Government Orders/Instructions dealing with appointment of Noon Meal Organisers/Cook/Cook Assistant under the order of Puratchi Thalaivar MGR Scheme and Integrated Child Development Services by direct recruitment,

(ii) To invite applications for all the posts in the District from all the eligible candidates. The advertisement should indicate the posts, reserved for each reserved categories and the posts for general category, disabled etc. The advertisement should also disclose eligibility conditions regarding age, qualification, additional qualification, if any, so as to enable the applicant to apply for the post.

(iii) Constitute the Selection Committee to consider the merit of every eligible candidate, thereafter, selection can be made purely on merit, subject to reservation and communal rotation as per guidelines to be fixed by the Selection Committee to assess the merit of each candidate.

(iv) In order to achieve the object of having local person to man the post, the selected candidate can be posted in his village, subject to right of transfer to District Collector as envisaged under the Government Instructions. In case of two or more persons are selected from the same Village, then they can be posted to nearby village, but this is for the State Government to decide.

71. The prayer of the petitioners that the petitioners may be promoted or appointed as per G.O.Ms.No.294 cannot be accepted, as admittedly, the posts are not available in the School cadre to give them any promotion or appointment. It is the prerogative of the State Government to make appointments. Once the appointing authority is the Collector and P.A., to the Collector, it is left to appointing authority to decide the mode of appointment. No costs.”

35. Being aggrieved by the common order passed by the Writ Court, quashing that part of G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 laying down other qualification of 3 Kms., distance for consideration for appointment and G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, and further directions, State has filed Writ Appeal (MD) No.858 of 2012 challenging the common order of the Writ Court dated 17.10.2012 passed in W.P.(MD)Nos. 7981 of 2012 etc., batch.

36. Thus, the selection made pursuant to G.O.Ms.No.72, Social Welfare and Nutritious Meal Programme Department, dated 30.04.2012, has been quashed, G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010, has been quashed by the Writ Court on the ground that laying down other qualification of 3 Kms., distance for consideration for appointment is unconstitutional and G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011 has been quashed on the ground that it is unconstitutional, firstly, for the reason that once appointment under the Noon Meal Scheme is by the Collector, there can be no discrimination between the Schools and secondly it is also arbitrary and violative of Article 14 of the Constitution of India and it gives unbridged and uncontrolled jurisdiction to the Collector and P.A. to Collector (N.M.P) to select one of the five persons recommended irrespective of the merit.

CHALLENGE TO G.O.MS.NOs.163 & 72 :-

37. First let us test

(i) whether the impugned clause in the aforesaid G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 i.e. the distance between the place of appointment and the residence of the applicant should be within three kilometers is unconstitutional or not and

(ii) the selection made pursuant to G.O.Ms.No.72, Social Welfare and Nutritious Meal Programme Department, dated 30.04.2012 can be sustained.

38. Writ Court relied upon the decision of this Court in the case of P. Vasantha vs. The District Collector, Dindigul District reported in 2007 (6) M.L.J. 402 and also a Division Bench judgment in W.A.No.1707 of 2009 dated 01.12.2009 and held that the aforesaid clause in the Government Orders is violative of Article 16(2) of the Constitution of India and quashed the said clause from G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010.

39. Mr.K.Chellapandian, learned Additional Advocate General appearing for the appellant / State submitted that the object of inserting the aforesaid condition fixing the distance criteria for selection of candidates to the post of Noon Meal Organisers is for giving proper and better care to the school children by providing them quality cooked food. It was further submitted that, the role of Noon Meal Organisers is very important as they are the ones who are responsible in implementing the noble scheme at the ground level, for providing noon meal to the school going children. In addition to that, Noon Meal Organisers are the custodians of the food commodities stored in the stock room and they are duty bound to maintain the accounts of the stock at the respective Noon Meal Centres up-to-date. It was further submitted that the impugned condition was inserted in the Government Order because of the practical difficulties faced at various Noon Meal Centres. The noon meals have to be prepared before 12.30 p.m. everyday by the Cooks at the respective Centres and it has to be supervised by the Noon Meal Organisers, who also have to monitor the quality and quantity of the food being prepared. Hence, the Noon Meal Organisers have to be present at the time of serving the food to the children. Therefore, if the Noon Meal Organisers are residing preferably within a radius of three kilometers from the centre, they will be able to carry out the noble scheme in time and with utmost devotion to duty.

40. Per contra, learned counsel appearing for the respondents / writ petitioners submitted that condition imposed in the impugned clause in G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 is wholly arbitrary, illegal and unjustified. According to them, appointment to the post of Noon Meal Organisers cannot be made solely on the basis of the distance criterion, viz., that the candidate must reside within a 3 kilometer radius. According to them, such a condition violates Article 16(2) of the Constitution of India.

41. From the impugned G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010, it is evident that educational qualification has been prescribed for the post of Noon Meal Organiser and it is made clear that only women candidates will be appointed for the said post. So far as the educational qualification is concerned, in respect of General Category and Scheduled Caste candidates, it is a pass in 10th Standard and in respect of Scheduled Tribe candidates, it is 8th Standard. In the said G.Os., age has also been prescribed for different categories, in addition to the distance criterion i.e., the distance between the noon meal centre and the residence of the candidates should be within 3 kilometers. Therefore, we have to decide as to whether such an additional criterion fixing 3 kilometers distance between the residence of the candidates and the respective Noon Meal Centre is justified or not.

42. As seen above, State of Tamil Nadu has been scrupulously implementing the scheme of providing cooked meals to the children studying in different schools by issuing administrative orders and instructions from time to time. The main object of this scheme is to protect the children from classroom hunger, to increase school enrolment and attendance and to provide social empowerment through the provision of employment to women and destitutes. In addition to that, its other objectives are to improve the health and nutrition status of children by providing supplementary food and to improve the children’s psychological and social development through early stimulation and education. This Mid Day Meal Scheme is being run by the Government on the basis of the decisions taken by a Committee consisting of representatives from different Departments of the State Government. No Statute or Rules have been framed for the purpose of making appointments of persons who will look after the Noon Meal Centres so as to fulfill the requirements of the children.

43. In State of Karnataka Vs. Ameerbi and others, reported in (2007) 11 S.C.C. 681, some of the Anganwadi workers filed application before the Karnataka State Administrative Tribunal and ultimately the matter went up to the Hon'ble Supreme Court. The Hon'ble Supreme Court observed as under :-

“13. The posts of anganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and anganwadi workers but it is another thing to say that they are holders of civil post.

14. We are not oblivious to the fact that their presence in their respective villages is extremely important. They are supposed to make significant contribution to the society. They, we understand, are required to carry out a large number of activities, primary amongst them being the welfare of the children.

……………..

28. However, rules framed under proviso to Article 309 of the Constitution of India are not attracted in the case of the respondents. They are appointed under a scheme which is not of a permanent nature, although might have continued for a long time.

29. Appointments made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention has not been drawn to any rule or regulation governing the mode of their recruitment.

Some statements in this behalf have been made by the interveners but for the reasons stated herein before, we cannot enter there into. A distinction must be made about a post created by the Central Government or the State Governments in exercise of their power under Articles 77 or 162 of the Constitution of India or under a statute vis-à-vis cases of this nature which are sui generis. Terms and conditions of services of an employee may be referable to Acts of appropriate legislature. The matter may also come within the purview of Article 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum.

…………….

33. The decision, therefore, is an authority for the proposition that those employees who come within the meaning of Article 12 of the Constitution of India are not necessarily government servants. A fortiori the State in terms of a scheme may exercise control over a section of the persons working but thereby only, they do not become entitled to protection under Article 311 of the Constitution of India.”

44. Indisputably, the Noon Meal Scheme implemented by the State of Tamil Nadu is not governed by any Statue or any other enactment; rather, it is implemented on the basis of a policy decision taken by the Government by issuing Government Orders and executive instructions from time to time. No statutory rules have been framed under the proviso to Article 309 of the Constitution of India nor is there any Act of the Legislature governing the service conditions of the Noon Meal Organisers employed under the aforesaid Scheme. Hence, in the absence of any statutory rule, it is open for the Government to regulate the service conditions and the criteria for such appointments by issuing administrative instructions dealing with the question of experience or other criteria for such appointments. It is a well settled general principle of service jurisprudence that in the absence of any statutory rule governing the service conditions of an employee, the executive instructions or decisions taken on the administrative side would operate in the field, and appointments can be made in accordance with such administrative instructions.

45. In Ekta Shakti Foundation V. Government of NCT of Delhi reported in (2006) 10 S.C.C. 337, the Delhi Government, pursuant to the directions of the Hon'ble Supreme Court, framed a detailed scheme called “Detailed Scheme for Capacity Building of Self-Help Groups to Prepare and Supply Supplementary Nutrition under the Integrated Child Development Service Programme”. The eligibility criteria fixed for appointments under the said Scheme, inter alia, was that the NGO must be a non-profit organisation or public trust with at least three years’ experience of working in a relevant field such as Child Development, Nutrition, Home Counselling, Nutrition Counselling and Women Empowerment related works. The said condition was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court while dismissing the writ petitions had observed as follows :-

“17. It is not the case of the petitioners that the eligibility criteria has been stipulated with any oblique motive. On the contrary after analysing the issues, a committee appointed by the respondent had suggested the norms and the schemes were accordingly prepared. We do not find any irrationality much less something which is totally out of context to justify interference.”

46. At this juncture, it would be worthwhile to quote the following observations made by the learned single Judge from the decision in P. Vasantha’s case (supra), while allowing the writ petition :-

“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 preference 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 villagers 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.”

47. From the aforesaid decision, it is clear that the learned single Judge in P.Vasantha’s case (supra) was of the view that if the selection is made solely on the basis of residence, then that will be hit by Article 16(2) of the Constitution, but at the same time the learned Judge has observed that the post requires constant attention towards the children and that the availability of the person in a nearby area is preferable, and proximity of the residence in respect of eligible candidates may be constitutionally permissible. The said judgment was approved by the Hon'ble Division Bench, but the single Judge as well as the Hon'ble Division Bench, instead of quashing the said clause, held that any appointment made preferring a candidate from a particular hamlet, to the exclusion of candidates from other hamlets may be arbitrary and violative of the communal roster being followed.

48. However, the Writ Court, by the impugned common Order, quashed the said clause relying upon the decision of the learned single Judge in P.Vasantha’s case (supra) as affirmed by the Hon'ble Division Bench. We are of the view that, the Writ Court has not correctly appreciated the view taken by the learned Single Judge in P.Vasantha’s case (supra) and affirmed by the Hon'ble Division Bench.

49. Our attention was drawn to some of the incidents that have taken place at different Noon Meal Centres across the country, where in the meals provided to school children, lizards, reptiles and other insects were found cooked, and the young children who ate such meals fell unconscious and their condition became precarious. This would only show that the functioning of the Mid Day Meal Centres are totally unsatisfactory and there was complete absence of supervision, lack of interest and the required commitment on the part of the officers, as also improper monitoring and implementation of the noble scheme.

50. The Noon Meal Scheme needs full commitment and dedication of the persons who are employed for the purpose of carrying on the said scheme. The Mid Day Meal Scheme is not only devised for giving or creating employment opportunities, but its main intention is to improve the health and nutrition status of school going children, coupled with the psychological and social development of the children. It is a special scheme run by different States and persons are employed under a special category employment by way of Government Orders and administrative instructions. Hence, imposing a condition that the candidate who seeks to serve as Noon Meal Organiser must be a resident of the same village where the Centre is located and that the distance between his residence and such Centre should be within three kilometers cannot be said to be wholly arbitrary and illegal. The sole object of inserting this condition is to give adequate care to school children by providing them quality cooked food.

51. As rightly submitted by the learned Additional Advocate General, the role of Noon Meal Organisers in the entirety of the scheme is very important, as they are the ones who are responsible for the implementation of this noble scheme. They are the custodians of food commodities stored in the stock room. Meals have to be prepared by the cooks at the respective Centres everyday before 12.30 p.m., which has to be supervised by the Noon Meal Organisers and it is the duty of the Noon Meal Organiser to maintain the quality and quantity of the food provided to the children. Hence, a Noon Meal Organiser has to be present at the Centre all the time and that can be achieved only when the Noon Meal Organiser resides at the nearest possible place, preferably within three kilometers from the centre. Since the distance criterion as fixed in the G.O. is only with the object of achieving the goal of providing quality cooked food to the children under a special scheme, the same cannot be held to be arbitrary or unconstitutional. In the State of Tamil Nadu, in every village and in most of the rural areas, there are centres providing cooked noon meals to school children. Hence, the women residing in the respective villages would get an opportunity of employment as Noon Meal Organisers and Cooks at such centres. Therefore, they will not be deprived of getting an opportunity of employment in the Centre located in their respective villages. Hence, in our considered view, particularly, having regard to the nature of employment under the special scheme being implemented by the Government, such a condition imposed in the impugned Government Order cannot be held to be violative of neither Article 14 nor Article 16 of the Constitution of India.

52. Moreover, it is not for the first time that the Government have stipulated the distance criterion by way of G.O.Ms.No.163 dated 18.8.2010. In fact, the issue has frequently been referred to the Government for necessary clarifications and in G.O.Ms.No.203, Social Welfare & Nutritious Meal Programme (Social Welfare-7) Department, dated 19.8.2005, the Government have issued such clarification. In the said Government Order, it has been pointed out that when appointments are made for Noon Meal Centres from a radius of 10 kilometers, much time is lost for the person so appointed to commute between such long distance and many a times such person does not turn up for duty, which has been noticed during surprise inspections by the officials. Further, if the person so appointed is not a resident of that village, he/she seeks transfer to a different panchayat/district and such matters are often litigated upto the High Court, which hampers the effective functioning of such noon meal centre. Taking into consideration such difficulties faced, the Government has issued the following clarifications in the aforesaid G.O.:-

(1) Wherever there is vacancy in any Noon Meal or Anganwadi Centre, eligible persons residing in the same hamlet should be appointed.

(2) Where qualified persons are unavailable in the hamlet, eligible persons from other neighbouring hamlets under the same village panchayat should be selected. If even such persons are not available, then qualified persons from other panchayats, not beyond the distance of 10 kilometers surrounding the said panchayat should be selected.

(3) As far as municipalities/corporations are concerned, eligible persons from the same Ward where there is a vacancy should be selected, and on the unavailability of persons there, eligible persons from the nearby Ward should be considered, and if even such persons are not available, then persons from the same Division should be selected.

53. From the above, it is clear that the Government have tried its best to evolve a pragmatic solution while appointing Noon Meal Organisers from places nearer to the Noon Meal Centres, and the distance criterion has been rightly fixed taking into account the practical difficulties faced while appointing persons belonging to far off places.

54. Therefore, we are of the considered view that the writ Court has not considered the issue in its right perspective, and it has committed an error in law by quashing the said criteria fixed for appointment by G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010.

55. In view of our above decision, the validity of the said criteria (i.e.,

laying down other qualification of 3 Kms., distance) fixed for appointment by G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 is upheld and the selection made pursuant to G.O.Ms.No.72, Social Welfare and Nutritious Meal Programme Department, dated 30.04.2012 is sustained.

CHALLENGE TO G.O.MS.NO.4:-

56. Now, let us consider as to whether quashing of G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, by the Writ Court as ultra vires of the Constitution, being violative of Article 14 of the Constitution, for the reason that once the appointment under the Noon Meal Scheme is by the Collector, there can be no discrimination between the Schools i.e., Government aided minority school and Government aided non-minority school and whether it is also arbitrary and violative of Article 14 of the Constitution of India as it gives unbridged and uncontrolled jurisdiction to the Collector and P.A. to Collector (N.M.P) to select one of the five persons recommended irrespective of the merit, can be sustained.

57. For the sake of brevity, facts culled out from W.P.(MD) No.11154 of 2012 (Sahayamadha Middle School Vs. The Principal Secretary to Government, Social Welfare & Nutritious Meal Program Department, Fort St. George, Chennai 600 009 and 4 others).

58. Writ petitioner School is a Government Aided School imparting primary education to the most downtrodden population in Vellore District. The writ petitioner School is run by a private Management which had all powers of self-administration of the School for making improvements in the School, development including the power to make appointments.

59. Writ petitioner School was being managed independently without any intervention by the educational authorities who only approve appointments made by the writ petitioner school in accordance with the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules 1975.

60. Government of Tamil Nadu have introduced Noon Meal Scheme to its programme as an allied part of School education which is being implemented by the respondents Nos.1 to 4 therein. Though the scheme provides for various power of distribution of material and other items for programme to the respondents therein, the power to make appointment for the post of Cook in the School is always vested with the private School Management alone.

61. On a number of occasions, the concerned District Collector allowed the private Managements to send panel which was approved. It was in 2008 that the District Collector listed the writ petitioner School as having a vacancy of Cook and appointed a Committee headed by the third respondent therein i.e. Personal Assistant to the Collector (Moon Meal Programme) to make appointment.

62. The Cook working in the writ petitioner School expired on 09.02.2011 and since no Cook was appointed in the writ petitioner School, it was managed by an in-charge Cook of the adjacent School.

63. Earlier, the Management had the power to notify the vacancy to the authority to call for an interview and make appointments on merits and intimate it to the authorities for approval. Thus, the power to appoint in a private School vests with the School Management.

64. Subsequently, G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, was issued laying down the guidelines for appointment and granted the authority of appointment and vested the right of appointment with the District Collector and the Personal Assistant to the Collector (Noon Meal Program) who were authorised to select a list of persons, out of which, the School would select 5 and out of the 5 selected by the School, one was to be appointed to the post of Cook. Based on the Government Order, the third respondent selected the fifth respondent for the post of Cook as per order dated 13.07.2012.

65. The said Government Order was challenged on the ground that the Management can have control over the Noon Meal only if the candidates are appointed by them and while the Management is providing all infrastructural facilities and cooking amenities for the preparation of the Noon Meal, then, it must have the right to choose a person of its choice to be appointed as the Organiser.

66. Reading of the Government Order shows that the appointing authority of Noon Meal Organiser is the District Collector whereas for appointment of Cook and Cook Assistant, Personal Assistant to the District Collector is the appointing authority. The appointing authority has also been given power to fill up the vacancies of Nutritious Meal Worker by transfer of service or by promotion or by direct recruitment.

67. G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, also provides that for appointment of Nutritious Noon Meal Organiser, Cook and Cook Assistant in Rural areas, the Commissioner of Panchayat Union and for Urban areas, the Commissioner of Municipality/Corporations should issue advertisement regarding the details of vacancies and conduct interview after receiving applications and scrutinise the same and prepare a list of eligible candidates.

68. Interview has to be conducted by the Management through the Head Master of the School concerned and the School Management is to recommend five persons from the list. The District Collector can issue appointment order to one person, out of five persons recommended by the Manager/Head Master of the School concerned and in respect of Cook and Cook Assistant appointments is to be made by the Personal Assistant, Nutritious Meal program.

69. It is also provided that communal roster is not to be followed in Government Aided Minority School. In the case of Non-Minority Government Aided School, the appointment of Nutritious Meal Workers, the communal roaster is to be followed and the appointment procedure to be followed is similar to the Government/Local Body (Panchayat Union/Municipality /Corporation Schools) followed in the appointment for Nutritious Meal Workers (Organiser, Cook, Cook Assistant).

70. G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, is challenged on the ground that once the appointing authority is the Collector and P.A to the District Collector, no discrimination can be made between the Nutritious Meal Centre of Government Aided Minority School and Nutritious Meal Centre of Government Aided Non- Minority School. The G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, stipulates that in respect of Minority School, the communal rotation need not be followed and in respect of non-minority school, communal rotation method should be followed.

Therefore, it is unconstitutional being hit by Article 14 of the Constitution of India.

71. It is also contended that it is not shown as to why two different criteria has been adopted for Government Aided Minority School and Government Aided Non-Minority School as the post of Noon-Meal Organiser, Cook and Cook Assistant is not on the cadre of School and it is not governed by the Tamil Nadu Privately Management Aided School and the Rules has no relevance as they apply only to the post which are on the cadre of the School.

72. It is further contended that G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, is also unconstitutional, firstly, for the reason that once the appointment under the Noon Meal Scheme is by the Collector, there can be no discrimination between the Schools. Further more, G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, is also arbitrary and violative of Article 14 of the Constitution of India and it gives unbridged and uncontrolled jurisdiction to the Collector of the P.A to District Collector (NMP) to select one of the five persons recommended irrespective of the merit. The person most meritorious has a right of appointment which cannot be defeated in an arbitrary manner at the whims and fancies of the appointing authority.

73. In Union of India v. Dr.(Mrs.) S.B.Kohli reported in AIR 1973 SC 811, classification as between F.R.C.S. in general surgery and F.R.C.S. in Orthopedics was upheld in relation to appointment to the post of a Professor of Orthopedics on the ground that the classification made on the basis of requirement of a post graduate degree in particular speciality was not "without reference to the objectives sought to be achieved and there can be no question of discrimination". The following observations made in State of Mysore v. P.Narasing Rao [1968 (1) SCR 407], would be useful:-

"it is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. Where any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be sonic rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated, Articles 14 and 15 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of the general rule of equality laid down in Art. 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Articles 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection."

74. In The State of Jammu & Kashmir v. Shri Trilocki Nath Khosa & Ors., reported in AIR 1974 SC 19, the Hon'ble Supreme Court held as follows :

"In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to, say that they have been treated differently from others, not even enough that a differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis.... On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification.

In the same judgment, the Hon'ble Supreme Court, at Paragraphs 36 and 39, held as follows:

“Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another. (Para 36) The classification of Assistant Engineers into Degree-holders and Diploma-holders could not be held to rest on any unreal or unreasonable basis. The classification was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. (Para 39)”

75. In M.A.Rashid v. State of Kerala reported in AIR 1974 SC 2249, the Hon'ble Supreme Court held that the opinion of the State Government cannot be said to be based on any matter extraneous to the scope and purpose of the relevant provisions of the Statute. The materials supporting the subjective satisfaction indicate that there are reasonable grounds for believing that the prescribed state of affairs exists.

76. In State of Kerala v. M.K.Krishnan Nair reported in AIR 1978 SC 747 the Hon'ble Supreme Court held as follows:

“......in other words, neither Article 14 nor Article 16 was attracted to the facts of the case at all inasmuch as the Officers belonging to the two wings never were nor are similarly situated or identically circumstanced.

.......it is well settled that a question of denial of equal treatment or opportunity can arise only as between members of the same class. In other words, Art. 14 or Art. 16 will not be attracted at all unless persons who are favourably treated form part of the same class as those who receive unfavourable treatment.”

77. In Om Prakash v. State of J & K., reported in AIR 1981 SC 1001, the Hon'ble Supreme Court, at Paragraph 8, held as follows:

“8. "Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification

permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.. ........(See State of West Bengal

v. Anwar Ali (AIR 1952 SC 75)). The classification must not be arbitrary but be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. Those qualities or characteristics must have a reasonable relation to the object of the law. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.”

78. In Madhya Pradesh Ration Vikreta Sangh Society v State of Madhya Pradesh reported in AIR 1981 SC 2001, the Hon'ble Supreme Court observed that, "The wider concept of equality before the law and the equal protection of laws is that there shall be equality among equals. Even among equals there can be unequal treatment based on an intelligible differentia having a rational relation to the objects sought to be achieved."

79. In D.S.Nakara v Union of India reported in 1983 (1) SCC 305 : AIR 1983 SC 130, the Hon'ble Supreme Court, held as follows:

"The basic principle which informs both Articles 14 and 16 in equality and inhibition against discrimination. Articles 14 strikes at arbitrariness because any action that is arbitrary must necessarily involve negation of equality. Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons, or things that are grouped together from those that are left out of the group and that differntia must have a rational nexus to the object sought to be achieved by the statute in question."

80. In Maharashtra State Board of Secondary and Higher Secondary

Education and another v. Paritosh Bhupesh Kurmarsheth and others reported in AIR 1984 SC 1543, the Hon'ble Supreme Court, at Paragraphs 14 and 16, held as follows:

“......It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. .........

.......The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act "

81. In Dhan Singh v. State of Haryana reported in AIR 1991 SC 1047, the Hon'ble Supreme Court, at Paragraph 10, held that when a rule is challenged as denying equal protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation or in-equality of protection does not per se amount to discrimination within the inhibition of equal protection clause under Article 14. To attract the attention of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the Legislature has in view.

82. In T.R.Kothandaraman v. Tamil Nadu Water Supply & Drainage BD and others reported in 1994 (6) SCC 282, the Hon'ble Supreme Court, at Paragraph 13, held as follows:

"It is apparent that while judging the validity of the classification, the court shall have to be conscious about the need for maintaining efficiency in service and also whether the required qualification is necessary for the discharge of duties in the higher post."

83. In K.Revathy v. The High Court of Judicature at Madras reported in 1994 (2) MLJ 120, a Hon'ble Division Bench of this Court, at Paragraph 13, held as follows:

"Article 14 of the Constitution is infringed when a difference is created by a rule where there is none and also when a difference is created when there is no difference. The rule of equality means that equals have to be treated as equals. The present is not one involving equals."

84. In Food Corporation of India v. Bhanu Lodh reported in 2005 (3) SCC 618, the Hon'ble Supreme Court held as follows:

"Even assuming that there is a power of relaxation under the Regulations, we think that the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an 'open Sesame' for all and sundry.”

85. In Union of India v. Alok Kumar reported in 2010 (4) SCALE 92, the Hon'ble Supreme Court held as follows:

"The Court would normally adopt an interpretation which is in line with the purpose of such regulations. The rule of contextual interpretation can be purposefully applied to the language..."

86. In the light of the decisions and discussion, we hardly find any irrationality, arbitrariness or unreasonableness, behind the above stipulation made in G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011. According to us, there is basis for classification, reasonableness and clear nexus, between the classification and the object sought to be achieved. Legislature or the Government has a wide discretion in making the classification and the impugned G.O., does not reflect hostile discrimination against a class of persons. Therefore, G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011, imposing different procedure for appointment in the Nutritious Meal Centre of Government Aided Minority School and Nutritious Meal Centre of Government Aided Non-Minority School is not hit by Articles 14 or 16 of the Constitution of India.

87. Therefore, we are of the considered view that the writ Court has not considered the issue in its right perspective, and it has committed an error in law by quashing G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011.

88. In view of our above decision, the validity of the said criteria i.e. imposing different procedure for appointment for Government Aided Minority School and Government Aided Non-Minority School vide G.O.Ms.No. 4, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2011 is upheld.

89. In view of our above conclusions,

(i) Writ Appeal (MD) Nos.792 of 2012, 849 to 855 of 2012, 924 to 933 of 2012, 62 of 2013 and 63 of 2013 filed by the State are ALLOWED and the common order passed by the Writ Court in W.P.(MD)Nos.4451 of 2012 etc., batch, dated 01.10.2012, is set aside.

(ii) Writ Appeal (MD) No.841 of 2012 is filed by one M.Meenalakshmi, challenging the common order of the Writ Court dated 01.10.2012, passed in W.P.(MD)Nos.4451 of 2012 etc., batch. Ms.M.Meenalakshmi filed writ petition No.4817 of 2012, challenging the rejection of her claim for appointment as Anganwadi worker, on the ground that there are three addresses with regard to her residence and all of those addresses are not within 3 kms from the Anganwadi Centre as anganwadi appointments are given only to those persons who are residing within 3 kms from the anganwadi centre. The grievance of Ms.M.Meenalakshmi is that though the Writ Court has set aside the eligibility criteria stipulated in G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 with regard to place of residence i.e, within 3 kms, failed to give a specific direction to the State to appoint her as Anganwadi Worker. As we have now set aside the order of Writ Court dated 01.10.2012, passed in W.P.(MD)Nos.4451 of 2012 etc., batch, holding that the distance between the place of appointment and the residence of the applicant should be within three kilometers as stipulated in G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 is valid, the prayer sought for by the appellant/Ms.M.Meenalakshmi cannot be countenanced and the Writ Appeal (MD) No.841 of 2012 is DISMISSED.

(iii) Writ Appeal (MD) No.858 of 2012, filed by the State is ALLOWED and the common order passed by the Writ Court in W.P.(MD)Nos.7981 of 2012 etc., batch, dated 17.10.2012, is set aside.

IMPUGNED ORDER OF WRIT COURT DATED 11.11.2014:-

90. Writ Appeal (MD) No.156 of 2015 has been filed by one Ms.Jesinda, challenging the setting aside of her appointment as staff (Paniyalar) in Anganvadi Centre at Muthuramalingapurampatti Village, Mudukulathoor Taluk and the further direction appointing one Ms.R.Nagajothi/4th respondent herein, in her place vide Writ Court order dated 11.11.2014, passed in W.P.(MD)No. 3398 of 2010.

91. The Writ Court vide order dated 11.11.2014, has held as under:

“3. The petitioner and the fourth respondent applied to the post of Anganvadi Staff (Paniyalar) in Anganvadi Centre, at Muthuramalingapurampatti, Sellur Panchayat, Mudukulathoor Taluk and the fourth respondent was selected to the post. The petitioner has challenged the appointment of the fourth respondent to the said post mainly on the ground that the petitioner possessed better educational qualification and passed examinations and above all belonging to the same Village, wherein the Anganvadi Centre is situated. According to the petitioner, she has passed Higher Secondary Examination and completed one year Nursery Teachers Training Course and also worked as a Teacher in Vivekananda Kendra Palarpalli in the same Village for nearly two years i.e., from 25.06.2002 to 05.08.2004 and she is also a resident of the same Village, as such, she is as per the guidelines, better qualified for selection to the post than the fourth respondent, who has been lacking teacher training and has been residing within 10 kilometres from the place of posting that too within different Panchayat, whereas the learned Government Advocate representing the respondents 1 to 3 would oppose the relief by saying that the fourth respondent is the most meritorious candidate for being selected to the post, than others, who participated in the selection process. The fourth respondent, though duly served with notice in the writ petition, failed to appear to contest the writ petition.

4. The learned Government Advocate representing the respondents 1 to 3 has in the course of his arguments produced the particulars relating to the candidates participated in the selection for the post in question. A reading of the same reveals that the fourth respondent- Jesinda passed XII Standard Examination and has been residing in Michelpattinam Post, Mahindi Panchayat, within different Mudukulathoor Panchayat and was the women self-help group member and was employed in a Co-operative Bank at Michelpattinam, whereas the petitioner herein has equally passed XII Standard examination and has completed one year Nursery Teacher Training Course and employed in Vivekananda Kendra Palarpalli for two years in the same Village, she is also one of the Members of self-help group in Mudukulathoor Panchayat and has been residing in the same Village. The above particulars no doubt would go to show that the petitioner is more qualified to the post of Paniyalar in Anganvadi Centre, she having possessed not only equal educational qualification and passed examinations and above all, has been residing in the same Village, where the Anganvadi Centre is situated, which is one of the pre-conditions for selection to the post as per the advertisement notifying applications. But, there is no reason assigned as to why the petitioner was denied employment and the fourth respondent was selected on preferential basis. The learned counsel appearing for the petitioner at this juncture has drawn the attention of this Court to the order passed by this Court in W.P. (MD) No.10548 of 2008, as confirmed in W.A.(MD) No.588 of 2009 [P.Latha Vs. K.Vadivukkarasi and two others], wherein a Hon'ble Division Bench of this Court has confirmed the order of the learned Brother Judge, who was pleased to set aside the earlier selection on similar ground. The Division Bench of this Court considering the qualification of the writ petitioner and also considering the fact that she is a resident of the same hamlet, was of the view that the appointment of the respondent therein warranted interference and accordingly set aside the appointment and directed the appointment of the writ petitioner therein in the place of the third respondent therein.

5. Applying the same view, this Court is inclined to set aside the appointment of the fourth respondent with further direction issued to the first respondent to appoint the petitioner in the place of the fourth respondent.

6. In the result, the appointment of the fourth respondent as Staff (Paniyalar) in Anganvadi Centre at Muthuramalingapurampatti Village, Mudukulathoor Taluk, is set aside, with further direction issued to the first respondent to appoint the petitioner to the same post. The above exercise shall be completed within eight weeks from the date of receipt of a copy of this order.

7. The writ petition is allowed accordingly. No costs. Consequently, connected miscellaneous petitions are closed.”

92. A perusal of the above order would clearly show that the fourth respondent (Ms.R.Nagajothi) was residing in the same village, where the Anganvadi Centre is situated (i.e. within three kilometers) whereas the appellant (Ms.Jesinda) was not residing in the same village and the distance between the noon meal centre and her residence is more than three kilometres but within ten kilometres. In the earlier part of our judgement, we have upheld the validity of G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme Department, dated 18.08.2010 stipulating distance criterion i.e., the distance between the noon meal centre and the residence of the candidates should be within 3 kilometers.

93. In the light of the above discussion and decision, we are of the view that the appellant (Ms.Jesinda) has not made a case warranting interferences with the order of the Writ Court dated 11.11.2014, passed in W.P.(MD)No.3398 of 2010. There is no merit in this appeal. Hence, W.P. (MD)No.3398 of 2010 is liable to be dismissed and accordingly DISMISSED.

WRIT PETITIONS:

94. Batch of writ petitions were filed inter alia praying as follows:

(a) To declare G.O.Ms.No.43, Social Welfare and Nutritious Meal Programme Department, dated 28.08.2014 as illegal and unconstitutional for stipulating that residence should be situated within 3 km to 10 km radius, fixing upper age limit as 35 years and seeking to fill up all 17,190 vacancies by direct recruitment.

(b) To direct the respondent State to fill Anganwadi posts by issuing public notification.

(c) To direct the respondent State to effect transfer from one Anganwadi Centre to another Anganwadi Centre.

95. First let us test the validity of G.O.Ms.No.43, Social Welfare and Nutritious Meal Programme Department, dated 28.08.2014. G.O.Ms.No.43, dated 28.08.2014, is akin to G.O.Ms.No.72, dated 20.04.2012. In the earlier part of our judgement we have discussed in detail the validity of G.O.Ms.No.72, dated 20.04.2012 and upheld its validity.

96. Therefore, in view of the above, batch of writ petitions challenging G.O.Ms.No.43, Social Welfare and Nutritious Meal Programme Department, dated 28.08.2014, viz., W.P.(MD)Nos.18443, 18444, 18447, 18448, 18449, 18872 and 20127 of 2014 are DISMISSED.

97. Batch of writ petitions seeking direction to the respondent State to fill Anganwadi posts by issuing public notification is concerned, Government has issued G.O.Ms.No.43, Social Welfare and Nutritious Meal Programme Department, dated 28.08.2014 to fill up 17,190 vacancies in the Nutritious Meal Centres.

98. Therefore, in view of the above, W.P.(MD)Nos.18445, 18657, 18966, 18583, 19111, 19112, 19982 and 19983 of 2014, W.P.Nos.334 to 336, 1264 and 2803 of 2015 are DISMISSED.

99. Writ petition (MD) No.20491 of 2014, has been filed seeking a Mandamus, directing the respondents 1 to 3 herein to transfer the writ petitioner from Melayyanpatti Anganwadi Centre to Kottaiyiruppu Anganwadi Centre, situated at Thiruppathur Block, Sivagangai District, in the light of the instructions, issued by the Principal Secretary/Special Commissioner, Integrated Child Development Scheme, Chennai, in R.C.No.2212/E3(4)/2001, dated 30.01.2012.

100. The case of the writ petitioner is that on 11.03.1983, she was appointed as Community Nutrition Worker at Kottaiyiruppu Community Nutrition Centre, Thiruppathur Taluk, Sivagangai District which is her native place. After completion of 20 years of service, pursuant to the Scheme of One Worker One Helper for one Anganwadi Centre, her post was declared as surplus and on 01.08.2004, she was transferred to Melayyanpatti Anganwadi Centre, Thiruppathur Taluk, Sivagangai District, which is nearly 10 KMs away from her native place viz. Kottaiyiruppu and till date she is working in the said place viz., Melayanpatti Anganwadi Centre.

101. According to the writ petitioner, on 31.05.2014, one Mrs.Chandra who was working as Anganwadi Worker at Kottaiyiruppu Anganwadi Centre retired from service on attaining the age of superannuation. Hence, in Kottaiyiruppu Anganwadi Centre, one post of Anganwadi Worker is laying vacant from 30.04.2014 to till date. On 13.05.2014, writ petitioner gave a representation to the District Collector, Sivagangai District / first respondent herein, requesting him to transfer her to Kottaiyiruppu Anganwadi Centre. But instead of transferring her to Kottaiyiruppu Anganwadi Centre, the Child Development Project Officer, Thiruppathur Block, Sivagangai District / third Respondent herein vide his proceedings in Na.Ka.No.127/2014, dated 30.05.2014, directed her to hold additional in-charge of Kottaiyiruppu Anganwadi Centre from 01.06.2014 onwards.

102. According to the writ petitioner, on 31.07.2014, the third respondent herein, forwarded the applications submitted by the Anganwadi Workers within his Block, including that of the writ petitioner to the District Project Officer, Integrated Child Development Scheme (ICDS), Sivaganga District, the second respondent herein vide proceedings in Na.Ka.No.194/2014, dated 31.07.2014.

103. According to the petitioner, on 27.10.2014, the Block wise vacancy list was published by the Respondents and Kottaiyiruppu Anganwadi Centre was shown as vacant place in that vacancy list. Therefore, the writ petitioner gave a representation dated 03.11.2014, to the Child Development Project Officer, Thiruppathur Block, 3rd Respondent herein, to transfer her to Kottaiyiruppu Anganwadi Centre from Melayanpatti Anganwadi Centre.

104. According to the writ petitioner, the Secretary to Government, Government of Tamil Nadu sent a letter to the Project Organizer, Integrated Child Development Project - IIIrd Project (World Bank Aided) through his letter (Nilai) No. 159, Social Welfare and Noon Meal Project (SN-7) Department, Secretariat, Chennai-9, dated 05.11.2002, that when a vacancy arise, the said vacancy should be filled by surplus Anganwadi Worker alone. Further according to the writ petitioner she was a permanent resident of Kottaiyiruppu Village and from 01.06.2014, onwards she was given additional charge of Kottaiyiruppu Anganwadi Centre. Therefore, according to her, the Respondents are duty bound to transfer her from Melayanpatti Anganwadi Centre to Kottaiyiruppu Anganwadi Centre but instead of doing the same, the Respondents gave additional charge of Kottaiyiruppu Anganwadi Centre and declared the said post as vacant in the Blockwise Vacancy List and it was reserved for BC Community (Except BC Muslim) as per Communal Roster.

105. According to the writ petitioner, she was fully eligible for transfer based on place of residence and she also belongs to BC Community. Further according to the writ petitioner, she reliably understand that the 2nd Respondent is taking steps to appoint a person from Sivagangai District who is the relative of a Minister of the State to the said post. Hence she came up with the instant writ petition seeking a direction to restrain the Respondents 1 to 3 from filling up the vacancy for the Anganwadi Worker now available in Kottaiyiruppu Anganwadi Centre, Sivagangai District which arose due to the retirement of one Mrs.Chandra on 30.04.2014.

106. Mr.S.Bharathy Kannan, learned counsel appearing for the writ petitioner submitted that the writ petitioner is a permanent resident of Kottaiyiruppu village and hence she was appointed as Community Nutrition Worker at Kottaiyiruppu Anganwadi Centre on 19.03.1983 and the said centre is situated within 100 metres away from her residence. But Melayyanpatti Anganwadi Centre is situated about 10 kms away from her residence. He further submitted that due to the scheme of One Worker One Helper for One Anganwadi Centre was introduced in the year 2004, when 2 Anganwadi Workers were working in the said Center (writ petitioner and Mrs.Chandra), writ petitioner’s post was declared as surplus and she was transferred to Melayyanpatti Anganwadi Centre by way of redeployment on 01.08.2004 and she was not able to come to Kottaiyiruppu Anganwadi Centre due to non availability of vacancy. But, on 30.04.2014, the Anganwadi Worker Mrs.Chandra working at Kottaiyiruppu Anganwadi Centre retired from service on attaining the age of superannuation. Thus, the post is laying vacant from that date and the same was notified by the 3 Respondent on 27.10.2014. Therefore, learned counsel submitted that it is the duty of the Respondents to transfer the writ petitioner to the said vacancy.

107. Learned counsel for the writ petitioner further submitted that on 30.01.2012, the Principal Secretary/Special Commissioner, ICDS, Chennai vide his proceedings RC No.2212/E3(4)/2001, issued instructions to all District Project Officers, ICDS to the effect that as and when the vacancy arises in the post of Anganwadi Worker/Mini Worker/ Mini Anganwadi Helper due to retirement/ transfer/ promotion etc., the request transfers should be considered first and then only the notification may be issued for the recruitment of new Anganwadi workers. Moreover, it was specifically stated that the above instruction should be followed scrupulously. Learned counsel for the writ petitioner therefore submitted that as per the said instructions the respondents are duty bound to transfer the writ petitioner to Kottaiyiruppu Anganwadi Centre based on her representations dated 13.05.2014 and 03.11.2014. Moreover, in the Blockwise Vacancy List dated 27.05.2014, the vacancy for Anganwadi Worker post available at Kottaiyiruppu Anganwadi Centre is reserved for BC Community (except BC Muslim). Learned counsel further submitted that even though the writ petitioner belongs to BC Community it is pertinent to note that communal reservation is applicable only to new appointment and not applicable to persons appointed on transfer.

108. Learned counsel for the writ petitioner further submitted that since the petitioner’s category fall within clause (b) of the Circular issued by the Principal Secretary/Special Commissioner, ICDS, Chennai dated in RC No. 2212/E3(4)/2001 dated 30.01.2012, it is the bounden duty of the respondents to consider the writ petitioner’s request for transfer from Melayammpatti Anganwadi Centre to Kottaiyiruppu Anganwadi Centre situated at Thiruppathur Block, Sivagangai District. Moreover, as per the above mentioned circular, it is not open to the respondents to fill up the said vacancy by way of direct recruitment without considering the request of the petitioner for transfer to the said vacancy.

109. We have heard the learned counsel for the petitioner and perused the materials on record.

110. Since the writ petitioner seeks transfer based on the instructions issued by the Principal Secretary / Special Commissioner, Integrated Child Development Services Scheme, Tharamani dated 30.01.2012, the same is extracted hereunder:

"Rc.No.2212/E-3(4)/2011 dated 30.01.2012.

Sub: ICDS - Establishment - Tamilnadu Anganwadi Workers and Helpers Union, Chennai - 18 - certain demands - instructions - Issued - Reg.

Ref: Tamilnadu Anganwadi Workers and Helper Union, Chennai - 18, Letter dated 20.1.2012.

*** The Tamil Nadu Anganwadi Workers and Helpers Union, Chennai-18 in their representation dated 20.01.2012 have putforth some of the problems in the field in implementing the ICDS scheme.

In this connection, the following instructions are issued to District Project Officers and Child Development Project Officers.

(a) The Mini Workers can be given additional charge to the Main Centre, if required.

(b) As and when vacancy arises in the post of Anganwadi worker/mini worker / Anganwadi Helper due to retirement/transfer/promotion etc., the request transfers should be considered first and then only the notification may be issued for recruitment of new Anganwadi employees.

(c) The District Programme Officer are instructed that they should get the instructions from the District Collector in order to declare holiday for the Anganwadi centres like schools during cyclone/heavy rain or in case of any other calamity/emergency.

(d) The Child Development Project Officer are instructed that, the leave eligible to Anganwadi employees as per G.O.No. 166, Social Welfare & NMP Department, Dated 30.12.2009 and G.O.No.6 Social Welfare & NMP Department, dated 06.01.2010 may be sanctioned without any delay.

(e) The District Programme Officer / Child Development Project Officers should avoid conducting the review meetings to the Anganwadi Workers during holidays.

(f) The expenditure incurred in connection with feeding charges to be claimed and paid immediately to the Anganwadi employees without any delay.

The District Programme Officers / Child Development Project Officers are once again informed that the above instructions may be followed scrupulously.

Sd., Principal Secretary / Special Commissioner To All District Programme Officer, All Child Development Project Officer. Copy to The Secretary to Government, Social Welfare & NMP (SW-7) Department, Chennai - 9."

111. Transfer is an incidence of service and it cannot be claimed as a matter of right. It is entirely upon the competent authority to decide when, where and at what point of time a employee is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. The employee does not have any vested right to be posted at a particular place. (Vide B. Varadha Rao v. State of Karnataka and Ors., ; Shilpi Bose v. State of Bihar, ; Union of India v. N.P. Thomas, ; Union of India v. S.L. Abbas, ; Rajender Roy v. Union of India, ; Ramadhar Pandey v. State of U.P. and Ors., 1993 Supp. (3) SCC 35; N.K. Singh v. Union of India and Ors., ; Chief General Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, ; State of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC

151; Union of India and Ors. v. Ganesh Dass Singh, ; Abani Kante Ray v. State of Orissa, 1995 (Supp) 4 SCC 169; Laxmi Narain Mehar v. Union of India, ; State of U.P. v. Ashok Kumar Saxena, ; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, ; Public Services Tribunal Bar Association v. State of U.P. and Ors., ; State of U.P. v. Siya Ram, ; and Union of India v. Janardhan Debanath.)

112. In Union of India v. S.L. Abbas (supra), the Hon'ble Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.

113. Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. It is settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he / she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors., ; Mani Subrat Jain and Ors. v. State of Haryana, ; State of Kerala v. Smt. A. Lakshmi Kutty, ; State of Kerala v.

K.G. Madhavan Pillai and Ors., ;Krishan Lal v. State of J & K, ;State Bank of Patiala and Ors. v. S.K. Sharma, ;Rajendra Singh v. State of M.P., ;Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoorand Ors., ;Utkal University v. Dr. Nrusingha Charan Sarangi and Ors., ;State of Punjab v. Raghbir Chand Sharma and Anr., ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr.,).

114. In view of the above, the legal position can be summersied that transfer is a condition of service. It does not adversely affect the status or emoluments or seniority of the employee. The employee has no vested right to get a posting at a particular place. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. There is a very little scope of judicial review by the Court/Tribunal against the transfer order and only if it is found to be in contravention of the statutory Rules or for mala fide that the Court can interfere. This is for the reason that a transfer order does not violate any legal right of the employee. Transfer policy of the State does not have any statutory force. It merely provides for guidelines for the understanding of the Departmental personnel.

115. In the light of the above decisions, prayer sought for by the writ petitioner cannot be granted. However, it is open to the respondents to consider the representations of the writ petitioner dated 13.05.2014 and 03.11.2014. With the above observation, W.P.(MD)No.20491 of 2014 is DISMISSED.

In view of the above, W.A.(MD)Nos.792, 849 to 858, 924 to 933 of 2012 and W.A.(MD)Nos.62 and 63 of 2013 are allowed. W.A.(MD)Nos.841 of 2012 and 156 of 2015 are dismissed. All Writ Petitions are dismissed. No costs.

Consequently, connected Miscellaneous Petitions are also closed.

[S.M.K., J.] [G.C., J.] 22.03.2017

Index : Yes/No

Internet : Yes/No skm

S. MANIKUMAR, J.

AND G.CHOCKALINGAM, J.

skm Writ Appeal(MD)Nos.792, 841, 849 to 855, 858 and 924 to 933 of 2012 Writ Appeal (MD)No.62 and 63 of 2013 and 156 of 2015 W.P.(MD)Nos.18443 to 18445, 18447 to 18449, 18583, 18657, 18872, 18966, 19111, 19112, 19982, 19983, 20127 and 20491 of 2014 W.P.(MD)Nos.334 to 336, 1264 and 2803 of 2015 and connected Miscellaneous Petitions

22.03.2017