(Prayer in WP.2103 of 2019: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of certiorarified mandamus to call for the records of the 3rd respondent relating to the Notification Ve.Aa.No.162/2016/Se.Ma. Tho.A/Salem dated 14.09.2016 and consequential letter No.4712/16/A4 dated 23.08.2016 for filling up the two posts of village assistant and order Pro.Na.Ka.No.4712/2016/A4 dated 28.10.2016 issued by the 3rdrespondent for appointment of the 5th respondent as Village Assistant of Mooduthurai Village, Salem West Taluk, Salem District to quash the same and direct the respondents to conduct the selection proceedings afresh to the posts of Village Assistants in the aforesaid villages in accordance with law and to consider the candidature of the petitioner for the said post in Salem District.

WP.4068 of 2019: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of certiorarified mandamus to call for the records pertaining to impugned order passed by the 2ndrespondent Tahsildar, Sankarapuram Taluk in his proceedings made in Na.Ka.No.B4/1000/2018-1 dated 08.06.2018 and quash the same and consequently, directing the 2nd respondent, the Tahsildar, Sankarapuram Taluk, to appoint the petitioner as Village Assistant at Devapandalam.)

Common Order:

1. Since, the issue involved in both the writ petitions relates to the appointment to the post of Village Assistant, the same are heard together and are being disposed of by this Common Order.

2. Heard the learned counsel for the petitioners and the learned Special Government Pleader appearing for the official respondents and learned counsel appearing for the private respondents and perused the record.

3. The case of the petitioner in brief is that the 3rd respondent issued an advertisement on 12.09.2016 for selection of candidates to two vacant post of Village Assistant for the villages of Jagir Reddipatti and Mooduthurai, one under General turn and other under Backward Classes (other than Backward Class Muslims); that the aforesaid advertisement was published in Dinamani daily; that as per the aforesaid advertisement issued, the eligibility criteria has been specified as candidates who have passed 8 th standard but failed 10 th standard are eligible; and that the eligible candidates were called upon to submit application on or before 19.06.2016 with appropriate documents.

4. It is the further case of the petitioner that the 3 rd respondent thereafter issued one more notification on 14.09.2016 indicating therein that the eligible candidates can apply to the aforesaid post within one week time with appropriate documents; that a conjoint reading of the aforesaid two notifications shows that a candidate's who are eligible to the aforesaid two vacant post need to possess educational qualification of  8th standard pass but 10 th standard fail; that the petitioner being a Engineer graduate, having regard to the eligibility criteria specified in the advertisement did not offer his candidature by submitting an application, even though, the said condition prescribed in the notification is contrary to the various G.Os. issued including GO.Ms.No.375 dated 19.10.2015, whereby only minimum educational qualification has been prescribed while maximum educational qualification has been done away with.

5. It is the further case of the petitioner that though 3rd respondent by the advertisement caused, specified that the candidates who are having educational qualification of 8 th standard pass and 10 th standard fail are only eligible to apply for the aforesaid vacancy, however, accepted the application of the 6 th respondent and appointed him to the post of Village Assistant, even though, the said candidate was having higher educational qualification i.e., B.Com (graduation), contrary to the notification issued. Thus, the action of the official respondents in recruiting the 5 th respondent to the post of Village Assistant is illegal and arbitrary and is contrary to the notifications issued and thus, the selection of the 5 th respondent is vitiated and liable to be set aside.

6. Counter affidavit is filed by the 3rd respondent.

7. The 3rd respondent by the counter affidavit contended that the appointment to the post of Village Assistant is governed by the GO.Ms.No.521 dated 17.06.1998; that Taluk Tahsildar is competent authority to appoint the Village Assistants as per rules, Government Letters / instruction read with GO.Ms.No.521 as amended vide GO.Ms.No.375 dated 19.10.2015.

8. The respondent by the counter affidavit further contended that the 3rd respondent had carried out advertisement in two dailies as well as media inviting application from the eligible candidates and that the applications received from the candidates directly and the persons sponsored by the Employment Exchange were taken into consideration for filling up two vacancies of Village Assistants; that in the advertisement/notification issued, the qualification for Village Assistant is typed as 8 th class pass due to typographical error, while the correct and relevant educational qualification should be 5 th pass; and that qualification for the said post is mentioned only in para 5 and no where it is mentioned that higher education is not eligible; and that the qualification is published in the locality as per GO and the selection was made according to the rules and G.Os.

9. By the counter affidavit it is further contended that in the paper advertisement issued, instead of mentioning 5 th pass it was printed as 8 th pass and 10 th fail, which is a printing mistake; that the petitioner neither applied for the said post nor attended interview, as such, the case of the petitioner nor the present writ petition as filed deserves any consideration.

10. By the counter affidavit it is also contended that the respondents while undertaking the appointment, has scrupulously followed the GO.Ms.No.375 dated 19.10.2015 and that, the petitioner wrongly understood the qualification mentioned in the notification; and that interview for the candidates who were applied in response to the aforesaid advertisement and also the candidates who were sponsored by the Employment Exchange was held on 27.10.2016; that out of 19 candidates only 12 candidates attended the interview; that the respondents were satisfied with the performance of two persons namely Tr.Sathyanathan and Tr.Prabhu/5 th respondent herein; that the 3 rd respondent thus, had appointed the 5 th respondent as Village Assistant of Mooduthurai Village; and that the District Collector/1 st respondent vide proceedings dated 17.11.2018 had confirmed the order of the 3rd respondent in undertaking the aforesaid appointments.

11. By the counter affidavit it is further contended that Government vide its letter dated 09.10.2012 had given exemption to maximum qualification of 10 th fail; that the 5 th respondent being a B.Com degree holder was appointed as Village Assistant; that the petitioner did not submit any application for the aforesaid post by mentioning his educational qualification as B.E. degree holder; and that without submitting an application, the petitioner had filed the present writ petition.

12. No counter affidavit is filed on behalf of the private respondents.

13. The petitioner by this writ petition has assailed the action of the 2nd respondent in appointing the 3rd respondent as Village Assistant on the ground that she had applied for being appointed as Village Assistant of 9 Devapandalam village, Sankarapuram Taluk; that pursuant to the notification dated 01.03.2018 issued by the 2 nd respondent inviting applications from the candidates to fill up the aforesaid post of Village Assistant for 4 villages, the petitioner being a resident of the nearby village of Devapandalam applied to the aforesaid post; that the 2 nd respondent without considering her candidature as being from the nearby village of Devapandalam, had issued order of appointment to the 3 rd respondent whose place of residence is 30kms away from the Devapandalam village; that the action of the 2 nd respondent appointing the 3 rd respondent, ignoring the candidature of the petitioner, is contrary to GO.Ms.No.521 dated 17.06.1998 which mandates that the appointed candidate shall belong to the village to which she is appointed or the adjoining village if no suitable candidate is available in the village. Contending as above, the petitioner seeks for setting aside the selection of 3 rd respondent to the post of Village Assistant of Devapandalam village, Sankarapuram Taluk.

14. Counter affidavit is filed by the 2 nd respondent.

15. The 2nd respondent by the counter affidavit contended that 4 vacancies for the post of Village Assistant arose in Sankarapuram Taluk; that accordingly notification was issued instructing all eligible candidates having minimum educational qualification of 5 th class pass, to apply through the Employment Exchange and public notification; that in response to the aforesaid notification 104 applications were received; that out of application received 22 applications were rejected for valid reasons; that the remaining eligible candidates along with 20 employment exchange nominees were called for interview.

16. By the counter affidavit, it is further contended that the candidates whose applications were accepted after rejection of 22 applications, were called for interview on 09.05.2018 to appear before selection committee comprising of Tahsildar, Deputy Tahsildar and Revenue Inspector of Sankarapuram Taluk; that during the interview, the committee had evaluated the eligibility of the candidates by subjecting them to reading and writing in Tamil and knowledge of the Village Assistant functioning and general awareness; and that the candidates were evaluated on uniform scale and marks were entered in the register.

17. By the counter affidavit, the respondents further contended that in all 80 candidates appeared for interview; that though the petitioner also appeared for interview, her performance with regard to reading and writing skill were below average; that she had struggled to read passage in Tamil without errors and was unable to identify the Village records such as Adangal and Chitta; and that her answer to simple questions on village boundaries and revenue procedures were unsatisfactory and thus, she had secured low marks in the interview.

18. By the counter affidavit, it is further contended that on the other hand, the selected candidate performed consistently in all parameters, her reading and writing skill in Tamil was clear; that she identified and explained the revenue records and general awareness of Devapandalam village was noted to be sound; and that she had secured the highest mark among the SC (non priority) candidate.

19. The respondent by the counter affidavit contended that since, the performance of the petitioner with regard to the writing skill as well as overall ability was below satisfactory, her candidature was not considered for appointment to the post of Village Assistant.

20. No counter affidavit is filed on behalf of the 3 rd respondent.

21. I have taken note of the contentions urged by the counsel appearing for the respective parties.

22. Insofar as the challenge in WP.No.2103 of 2019 to the appointment of 5 th respondent is concerned, it is to be noted that in the advertisement/ notification issued by the 3 rd respondent, it has been clearly and categorically mentioned that the candidate possessing educational qualification of 8 th standard pass and 10 th standard fail only need to apply to two vacant posts of Village Assistant. Though, by further publication caused on 14.09.2016, i.e., two days after the initial publication caused on 12.09.2016, it is stated that eligible candidates can apply within seven days, there is no further mention with regard to any change in the eligibility criteria, from that of the one mentioned in the notification / advertisement published on 12.09.2016. Thus, the publication caused on 14.09.2016 is not issued supersession of the notification dated 12.09.2016. On the other hand, the notification caused on 14.09.2016 is to be read in conjunction with the notification dated 12.09.2016.

23. Thus, the 3rd respondent by the notification / advertisement issued on 12.09.2016 having specified that the candidates who are 8th standard pass and 10th standard fail being eligible to apply, the respondents could not have accepted the application of 5 th respondent who is a degree holder. Though, the respondents by the Counter affidavit contended that mention of 8th standard pass and 10th standard fail is typographical error, the mention of the aforesaid criteria has resulted in exclusion of the candidates who are possessing higher educational qualification from applying to the said post.

24. Further, it is also to be noted, that the 3rd respondent by his letter dated 23.08.2016 addressed to the Joint Director, Employment Exchange Office, Maravaneri, Salem, while seeking for sending the names of the eligible candidates registered with the exchange for filing up the aforesaid post, had mentioned that the candidates who had studied 8th standard be considered.

25. This has led the concerned Employment Exchange authorities also to forward the names of the candidates registered with the Employment Exchange who are having qualification of 8 th standard pass and 10 th standard fail. If only, the statement made by the respondent in the counter affidavit, that mention of 8 th standard pass and 10 th standard fail in the advertisement / notification is typographical error, the fact of the Employment Exchange forwarding only the candidates with the aforesaid educational qualification could not have gone unnoticed.

26. Further, the 3rd respondent having not received any application from the candidates possessing educational qualification below 8th standard (i.e) 5 th pass as per GO.Ms.No.375, itself ought to have raised suspicion to cause reverification. On the other hand, only 19 candidates having applied to the aforesaid two vacancies, out of which, the 5th respondent and another candidate being the only candidates possessing degree qualification, goes to show that the 3rd respondent by causing an advertisement to fill up two vacant posts of Village Assistant by prescribing the eligibility criteria for selection as 8th standard pass and 10th standard fail, had ensured the exclusion of candidates possessing lower and higher qualification then the one specified in the notification.

27. The respondent by the aforesaid action has eliminated the competition of eligible candidates from applying to the said post (i.e,) candidate having educational qualification of 5 th standard pass and above as per GO.Ms.No.375 dated 19.10.2015 including the petitioner herein who is B.E. graduate.

28. Further, the 3rd respondent having prescribed the eligibility criteria in the advertisement/notification as 8 th standard pass and 10 th standard fail, could not have considered the application of the unofficial respondent being a graduate and selecting him and also issuing appointment letter on the ground that among 12 candidates who attended interview, that the respondent authority was satisfied with the performance of the unofficial respondent.

29. As the 3rd respondent by specifying the eligibility criteria having excluded the other candidates from applying to the said post in the initial stage itself, who could have been more meritorious than the selected candidates cannot be allowed to claim that the unofficial respondent/private respondent was found as the most eligible candidate for being appointed.

30. It is settled position of law that a recruitment process has to be undertaken on the basis of the notification issued and the selection criteria cannot be altered or modified by the authorities midway or after the process of selection is commenced (see – Maharastra SRTC V. Rajendra Bhimrao Mandve – (2001) 10 SCC 51)

31. The 3rd respondent firstly, having requested the Employment Exchange to send the list of eligible candidates having educational qualification of 8 th standard and thereafter having issued advertisement on 12.09.2016 specifying the eligibility criteria as 8 th standard pass and 10 th standard fail, could not have proceeded with the selection process by considering the application submitted by the candidates possessing higher qualification without either cancelling the notification issued or issuing any errata or corrigendum to the said notification correcting the eligibility criteria.

32. On being queried by this Court, as to whether any errata or corrigendum has been issued correcting the eligibility criteria specified, to be inline with the eligibility criteria specified under GO.Ms.No.375, dated 19.10.2015, learned Special Government Pleader on instructions stated that no such publication is caused after 12.09.2016 and 14.09.2016.

33. Thus, the stand taken by the respondents in the Counter affidavit that as the 5 th respondent possessed B.Com degree and the authority being satisfied with the performance having appointed him to the post of Village Assistant and that the petitioner having not applied to the post cannot challenge the selection of 2 nd respondent, cannot be countenanced.

34. Though, on behalf of the 5th respondent, it is contended that since, the notification dated 14.09.2016 having specified that the eligible candidates can apply, and the eligibility having been specified in GO.Ms.No.375 dated 19.10.2015 being 5th standard pass and thus, the 5 th respondent having applied for the said post, firstly, it is to be noted that if only the respondents was aware of the eligibility criteria as per GO.Ms.No.375, he ought to have challenged the notification as issued by the 3rd respondent as being contrary to GO.Ms.No.375. However, no such action has been taken.

35. On the other hand, the unofficial respondent claims to have submitted his application even though the eligibility criteria is specified as 8 th standard pass and  10th standard fail and despite he possessing his/her qualification and the 3rd respondent not only accepting his application but also securing employment only goes to show that the entire exercise has been undertaken stage managed by the 3 rd respondent to eliminate the competition, in order to appoint the 5th respondent to the post of Village Assistant by exclusion of candidates who would otherwise be eligible.

36. Thus, the claim of the 5th respondent of he having been selected in the interview, being issued with appointment letter and also having joined the service and working since then over a period of 6 years, cannot make what is otherwise an illegal appointment, a valid appointment for him to claim equities.

37. Thus, the entire process of selection of Village Assistant undertaken by the 3 rd respondent being patently illegal, the said action cannot be sustained. Accordingly, the selection and appointment of the 5 th respondent / unofficial respondent pursuant to notification/advertisement dated 12.09.2016 and 14.09.2016 is hereby set aside; and the appointment of the 5th respondent is hereby cancelled.

38. Since, it is on account of the actions of the 3rd respondent, and other officials involved in selection process, disrepute is brought to the respondent department, this Court is of the view that the first respondent is to be directed to initiate disciplinary action against all the officials concerned, who at the relevant point of time were involved in the aforesaid selection process and enter the action taken in their respective service registers.

39. Insofar as the claim of the petitioner in WP.No.4068 of 2019 is concerned, it is to be noted that the primary challenge of the petitioner to the selection of the 3 rd respondent is on the basis of Clause 7(c) of GO.Ms.No.521 dated 17.06.1998. Thus it would be appropriate to extract the said clause which reads as under :-

                  “7. Other Qualification

                  a. .....

                  b. .....

                  c. The person appointed to the post shall belong to the village to which he is appointed or the adjoining village if no suitable candidate is available from that village.”

40. The petitioner in the affidavit filed in support of the writ petition had claimed that she is native of Ranganathapuram Village which is 5 kms away from Devapandalam Village for which the Village Assistant is to be appointed; that the respondents without appointing her, have appointed the 3 rd respondent who is not eligible to be appointed to the said post as she is native of Junpadai Village, which is nearly 35 kms away from Devapandalam Village, thus, the appointment being contrary to the condition specified in GO.Ms.No.521.

41. The petitioner also contended that the 3 rd respondent being a graduate would have other opportunities of employment, while the petitioner being only 8 th standard pass does not have opportunities to apply for any other jobs, except the aforesaid post.

42. Thus, the petitioner had laid claim for being appointed to the aforesaid post on the ground of she being resident of the nearby village as stated under Rule 7(c) of GO.Ms.No.521.

43. However, it is noted that the said clause of Rule 7 of GO.Ms.No.521 has been substituted vide GO.Ms.No.375 dated 19.10.2015 and the substituted clause of Rule 7 of Rules reads as under :-

                  “(c)The person appointed to the post shall belong to the Taluk to which he is appointed.”

44. On account of substitution of Clause (c) of Rule 7 of Tamil Nadu Village Assistant Service Rules, 1980 w.e.f. 19.10.2015, the selection to the post of Village Assistant is to be made on the basis of the candidate belonging to the Taluk to which appointment is to be made and not on the basis of village to which appointment is to be made.

45. Thus, the petitioner cannot contend that the action of 2nd respondent in appointing the 3rd respondent who is residing at 35kms away from Devapandalam village as being contrary to GO.Ms.No.521, for her claim to be sustained. Accordingly, the said contention is rejected.

46. Insofar as the claim of the petitioner of 3rd respondent possessing higher qualification and as such having other employment avenues, while she being only 8th standard pass and not having any other employment avenues, it is to be noted that there is no challenge to the educational qualification prescribed under GO.Ms.No.521 in relation to the appointment of Village Assistant which has been in force since, 1998.

47. Merely because, the petitioner is not successful in the selection process cannot claim, the said criteria specified deprives her of opportunity to eke out her livelihood by getting Government job.

48. Further, the respondents by the counter affidavit having stated that when the petitioner was subjected to test her writing skill in Tamil were below average and she was unable to answer simple question on village boundaries and revenue procedures relating to her securing lower marks in the interview over others who had attended the interview for selection to the post of Village Assistant, the petitioner cannot seek for being appointed to a public employment even though she is not qualified solely on humanitarian ground. Thus, the challenge of the petitioner to the selection of 3 rd respondent as Village Assistant in Devapandalam Village on this ground also has to fail.

49. Accordingly, the WP.No.2103 of 2019 is allowed, as indicated above and WP.No.4068 of 2019 is dismissed. No order as to costs. Miscellaneous petitions, if any, stands closed.