Madras High Court
A.Sudhamathi vs The District Collector on 8 December, 2021
W.P.(MD)No.10634 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2021
CORAM:
THE HONOURABLE DR JUSTICE ANITA SUMANTH
W.P.(MD) No.10634 of 2018
and W.M.P(MD)No.9709 of 2018
A.Sudhamathi ... Petitioner
Vs.
1.The District Collector,
Trichy,
Trichy District.
2.The Commissioner,
Panchayat Union,
Thuraiyur,
Trichy District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of writ of mandamus directing the second respondent to allot work to the
petitioner and permithim to join as a Noon Meal Organizer in the Panchayat
Union School, Thuraiyur, based on the appointment order passed by the first
resondent in his proceedings in Se.Mu.No.Pa6/995/2016 dated 26.03.2018, within
a stipulated time fixed by this Court.
For Petitioner : Mr.J.Jeyakumaran
For Respondents : Mr.Om Prakash
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10634 of 2018
Government Advocate
ORDER
The petitioner seeks a mandamus directing the Commissioner of Panchayat
Union, Thuraiyur to allot work to her and to permit her to join duty as a Noon
Meal Organizer in the Panchayat Union School at Thuraiyur.
2. The petitioner claims to have passed HSC in the year 2004, and had
participated in the process of appointment for Noon Meal Organizer, attending
the call for interview and producing all relevant documents. The process of
selection was completed on 08.06.2017 by way of interview. On 26.03.2018, the
petitioner received proceedings appointing her as Noon Meal Organizer and
directing her to attend office within three (3) days.
3. It appears that in the interregnum, on 19.09.2021, the petitioner's
husband had been appointed in a Government job as Teacher. On account of this
and in pursuance of the policy of the State to the effect that only one person from
a family can be appointed to a Government post, the petitioner was not permitted
to assume duty despite a valid appointment order in her favour. This is the trigger
for the present mandamus.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10634 of 2018
4.The respondents have filed a counter, wherein, they seek to buttress their
case stating that the petitioner has in fact completed her M.Sc., M.Ed., and was
thus disqualified. This is an addition to their stand that her husband was already
holding a Government job and thus only one person per family is entitled to be
employed in a Government position.
5. As regards the latter contention, I reject the same straightaway as being
devoid of any merit whatsoever. This very question had come up for
consideration by this Court in W.P.No.4414 of 1985, wherein also the petitioners
were appointees under the Noon Meal Scheme. The challenge in that writ petition
was to the very Government Order relied upon by the State before me now, being
G.O.Ms.No.33 dated 05.02.1983, which prescribes as one of criteria for
appointment of Noon Meal Organizer, the condition that only one person can
hold a Government job from a family.
6. This is what the learned single Judge has to say, while rejecting that
contention outright.
3. Can a condition as envisaged in the order of the first respondent that
any job under the Government of the State shall be given to only such a
person in whose family there is no other person. employed, withstand the
test of equal protection of law and equality before law as under Article 14
of the Constitution of India and equality of opportunity of employment as
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10634 of 2018
under Article 16 (1) of the Constitution, is the question that should not
detain me beyond stating that exclusion of a person who is qualified and
eligible for appointment in a service or post on a ground which is not
based on any rationale and shows no nexus with the object to be achieved,
viz., to have such persons who are eligible to work in such a post is/will
be, per se unconstitutional. In Minor Senthilkumar, K. v. The State of
Tamil Nadu (1991-1 L.W.113) the question how the concept of 'family'
unless given a definition by a fiction created by law will be misleading
and will not be a correct basis for a classification has been considered by
this Court, first on a difference of opinion and final verdict by the learned
third Judge and confirmed by the Supreme Court. In that judgment it has
been pointed out:
"The respondents have been aware of various definitions and
meanings given to the term 'family' in different enactments. They
knew that the term family is really one of great flexibility and is
capable of many different meanings according to the context in
which it is used and its meaning may become narrow or broad
depending upon the intentions of the Legislature or the context in
which it is used. Courts have always held that it would neither be
possible or desirable to permit a comprehensive formula or an
exhaustive definition to indicate the meaning of the term 'family'. It
may have therefore one meaning in a permissive society. It may have
one meaning in a joint family and another in which every individual
may constitute a separate family. A broad common sense view taken
with due regard to the facts and circumstances of each case
including the social order, the habits, "the customs and the ideas of
living in the community alone can give a proper and reasonable
understanding of the word 'family'. It appears from the impugned
G.0. that an artificial meaning or definition has been introduced by
saying that father, mother, brother and unmarried sister in addition
to the applicant are considered as members of the family for this
purpose. A brother may be married or unmarried may be a major or
a minor. It is not difficult to understand that a brother dependent
upon the parents like the applicant/candidate concerned may belong
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W.P.(MD)No.10634 of 2018
to the family. But it cannot be said with respect to a married brother
or a major brother, who having become an adult and, entitled to
have his own life and family decides to separate from his parents.
Once separated from the joint family by express declaration to be
away from the parents, if a Hindu, he would cease to be a member of
the joint family of the parents and if a Mohamedan or a Christian, he
would constitute a separate family for all practical purposes without
even bothering for the incidence or consequence of a joint family or
co-parcenary. Even father and mother of a candidate may not
always be found together. Such elements of disenchantment between
husband and wife which are common in permissive society have
already intruded into our society and it is no longer a sin for a wife
to live away from the husband" "or a husband to divorce his wife. A
child may remain with the mother or father depending upon - they
separate. the condition in which to live away from the son or
daughter If one who has chosen who is seeking admission is
graduate yet because he/she is born of him or her, he (?) shall be
disqualified".
XXX
"It is indeed curious why a child of a business magnate who is not
graduate or there is no graduate member in his family, who is
capable of sending his ward to any institute or institution in this
country and abroad has been equated with the child of a peddlar
who is not a graduate and in whose family, there is no other
graduate or a tiller of land or a peasant, who can hardly afford to
move his child, for education to any place unless some help is given
to him to educate his child. How does this G.O. compare a graduate
clerk's family with that of the family of a Chartered Accountant, who
is not a graduate of a person who holds a diploma in Business
Management and is the proprietor of a business firm or the
Managing Director of a Company dealing in high stakes and
earning beyond measure? A class, I have already noticed, is a
homogeneous section of the people, grouped together because of
certain likeness or common traits and who" of the first and second
respondents respectively are wholly illegal and fit to be quashed.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10634 of 2018
They are accordingly quashed. As a consequence thereof,
respondents are restrained from removing the petitioners from their
post for the reason as aforementioned. No costs ”
The argument to the effect that the petitioner's eligibility becomes
compromised by virtue of her husband holding a Government job, is thus
rejected.
7. As regards the petitioner's educational qualifications, the learned counsel
for the petitioner is unable to respond to this factual aspect straightaway. Be that
as it may, the State cannot go back on an appointment order issued by it unless
the such order is withdrawn on valid ground such as suppression of relevant facts
by the candidate. This not having been done, this Writ Petition is allowed. All
consequences be given to this order. No costs. Consequently, connected
miscellaneous petition is closed.
08.12.2021
Index: Yes
Internet: Yes
CM
Note : In view of the present lock down owing to COVID-19
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10634 of 2018
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is presented is
the correct copy, shall be the responsibility of the advocate/litigant
concerned.
To,
1.The District Collector,
Trichy,
Trichy District.
2.The Commissioner,
Panchayat Union,
Thuraiyur,
Trichy District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10634 of 2018
DR.ANITA SUMANTH,J.
CM
W.P.(MD) No.10634 of 2018
and W.M.P(MD)No.9709 of 2018
08.12.2021
https://www.mhc.tn.gov.in/judis
