V. Surendra Mohan vs State Of Tamil Nadu .

CIVIL APPEAL NO.83 Of 2019 (Arising out of SLP(Civil)No.17223 of 2015)

V. SURENDRA MOHAN ...APPELLANT(S)

VERSUS

STATE OF TAMIL NADU & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

The appellant aggrieved by the judgment of Madras

High Court dated 05.06.2015 dismissing his writ

petition has come up in this appeal. The appellant

appeared in selection for the post of Civil Judge

(Junior Division) under partially blind category.

2. The brief facts giving rise to this appeal are:

After enactment of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Signature Not Verified Digitally signed by

Participation) Act, 1995 (hereinafter referred to as SANJAY KUMAR Date: 2019.01.22 16:01:48 IST Reason:

the “Act, 1995”) the State of Tamil Nadu vide GO

1 dated 11.04.2005 has identified 117 categories of

posts as most suitable in A and B groups in direct

recruitment. Item No.102 of the above list of posts

identified under group A and B was to the following

effect:

"LIST OF POSTS IDENTIFIED UNDER GROUP A & B

CATEGORIES

S.No. Name of Post Physical Categories Group and requirements of disabled Department persons suitable for the job 102 Tamil Nadu State Judicial S/ST/W/SE/H/RW PB/PD/ORTHO A Service Civil Judge (Junior Division/ Judicial Magistrate-

First Class)

3. The Government of Tamil Nadu had also issued a

notification dated 31.08.2012 in exercise of powers

conferred by proviso to Section 33 of the Act,1995

exempting the post of District Judge (Entry Level)

and Civil Judge in the Tamil Nadu State Judicial

Service from the provision of the said Section 33 in

2 respect of complete blindness and complete

impairment.

4. The Tamil Nadu Public Service Commission (TNPC)

received a requisition from the State Government for

filling up 162 posts of Civil Judge (Junior

Division). The TNPC has written a letter dated

04.08.2014 to both the State Government as well as

the High Court proposing to notify the percentage of

disability as 40%-50% for partially blind and

partially deaf for selection of 162 Civil Judge

(Junior Division). The High Court communicated its

approval to the aforesaid proposal which was also

consented by the State of Tamil Nadu. The State of

Tamil Nadu issued letter dated 08.08.2014 to the TNPC

to go ahead with the notification for the 162 posts

of Civil Judge, announcing 40%-50% disability for

partially blind and partially deaf for the selection

in question. The TNPC issued notification dated

26.08.2014 inviting applications through online for

direct recruitment.

3

5. The appellant, a practicing Advocate, submitted

online application in response to the notification

No.15/2014 dated 26.08.2014. In the column

“percentage of disability” the appellant had

mentioned “more than 40%”. The disability certificate

was also issued to the appellant on 10.10.2014

mentioning his disability as 70%. The written

examination was held on 18.10.2014 and 19.10.2014.

After examination was completed TNPC issued a letter

to the appellant to submit self-attested copies of

the relevant documents which also require certificate

of physical disability obtained from the Medical

Board specifying that his/her physical disability

would not render him/her incapable of efficiently

discharging his/her official duties for the post of

Civil Judge. The appellant in response to the said

letter submitted his certificates including the

certificate of physical disability dated 10.10.2014.

6. The TNPC issued the list of Register Numbers who

were provisionally admitted to the oral test. The

name of the appellant was not included in the list of

4 successful candidates. The appellant filed a writ

petition No. 10582 of 2015 in the High Court of

Madras. An interim order dated 13.04.2015 was issued

by the Madras High Court directing that the appellant

shall be permitted to participate in the viva-voce,

however, the result of the appellant will be kept in

a sealed envelope, until further orders are passed by

the High Court. The appellant thus appeared in the

interview, the Commission issued a list of

provisionally selected candidates for direct

recruitment.

7. In the writ petition the appellant filed an

application to amend the writ petition by adding a

prayer for quashing of the letter dated 08.08.2014

issued by the State Government. The amendment

application of the appellant was allowed. The writ

petition was heard by the Division Bench and vide its

judgment dated 05.06.2015 the High Court held that as

per the decision of the Government dated 08.08.2014

and notification issued by the TNPC dated 26.08.2014

partially blind with 40%-50% disability were only

5 eligible and the appellant having 70% disability was

not eligible to participate in the selection. The

appellant aggrieved by the Division Bench judgment

has come up in this appeal.

8. Learned counsel for the appellant submits that

post of Civil Judge (Junior Division) having been

identified under Section 32 of the Act, 1995 no

restriction of disability to the extent of 40%-50%

can be put. He submits that exemption having been

issued under proviso to Section 33 to the complete

blindness, the appellant who is not completely blind

but has 70% disability cannot be said to be

ineligible for appointment to the post of Civil Judge

(Junior Division). He submits that Act, 1995 does not

provide for any such restriction that the eligibility

is of only those who suffer from disability of 40%-

50%. When the post was identified by letter dated

11.04.2005 there was no restriction for only 40%-50%

disability which is now sought to be imposed. He

submits that the High Court in its judgment has

wrongly relied on the proposed amendment of the Tamil

6 Nadu State Judicial Service (Cadre and Recruitment)

Rules, 2007 which having not yet materialised was

wholly irrelevant. He submits that there was no

determination by any expert committee that it is

those who suffer from 40%-50% disability, are able to

discharge the functions of the post of Civil Judge

(Junior Division). Neither the High Court nor the

State Government constituted any expert committee to

look into the above aspect of the matter. The High

Court is not an expert body to peg the disability to

the extent of 40%-50% for the post of Civil Judge

(Junior Division). The figure of 40%-50% which has

been put as eligibility for the post of Civil Judge

(Junior Division) is an arbitrary figure without

there being any basis. He submits that the appellant

has been working with 70% disability as Assistant

Prosecuting Officer, and hence, he can fully

discharge the duties of Civil Judge (Junior

Division). He submits that the appellant having

wrongly been declared ineligible due to which he has

been deprived of his right to get selected as Civil

Judge (Junior Division) which he was otherwise

7 entitled as per his marks in the written test and

interview.

9. Learned counsel appearing for the State of Tamil

Nadu submits that in the writ petition the appellant

has challenged only letter dated 08.08.2014 and he

had not challenged the notification dated 26.08.2014

issued by the TNPC. He submits that in the

notification of the TNPC requirement of disability at

40%-50% having been condition prescribed, without

challenging the notification the appellant cannot

contend that he is eligible. He submits that the

appellant had although referred to notification dated

26.08.2014 in para 3 of the writ petition but failed

to challenge the said notification which is a

sufficient ground for dismissing his writ petition.

He submits that, the appellant being 70% disabled is

ineligible to participate in the selection for the

post of Civil Judge (Junior Division) and his writ

petition has rightly been dismissed.

10. Learned counsel for the High Court opposing the

8 submissions of the appellant contend that although as

per clause 4(G) of the advertisement dated 26.08.2014

it was mentioned that the differently abled person

was required to upload a copy of certificate of

physical fitness specifying the nature of physical

handicap and the degree of disability but in the

online application filed by the appellant he has not

uploaded the disability certificate. He further

submits that in his online application, the appellant

has only mentioned that his percentage of disability

is more than 40%. Referring to the disability

certificate relied by the appellant filed as Annexure

P6 dated 10.10.2014 learned counsel submits that as

per the certificate percentage of disability being

70%, the appellant is ineligible to participate in

the selection. He further submits that certificate

does not show that the appellant shall be able to

discharge the duties of Civil Judge (Junior

Division), and hence, the certificate itself makes it

clear that the appellant cannot perform the duties of

Civil Judge (Junior Division). Learned counsel

submits that the proposed amendment of the Rules in

9 2007 Rules has no relevance with regard to issue

raised in the present case, there being already a

decision of the State Government after the proposal

from TNPC and consent of the High Court that only

those physically disabled persons suffering from

visual impairment and hearing impairment shall be

eligible whose disability is 40%-50%. It is further

submitted that looking to the nature of the duties of

the Civil Judge (Junior Division) the appellant

cannot be said to be a person who can perform the

duties of the Civil Judge who is required to hear the

cases, record the statement of witnesses, read the

documents and then decide. Learned counsel submits

that there is no error committed by the High Court in

dismissing the writ petition.

11. From the submissions made by the learned counsel

for the parties and the pleadings on record following

are the issues which arise for consideration in this

appeal:

(1) Whether the appellant who was suffering with

disability of 70% (visual impairing) was

10 eligible to participate in the selection as per

notification dated 26.08.2014 of the Tamil Nadu

Public Service Commission?

(2) Whether the condition of 40%-50% disability

for partially blind and partially deaf

categories of disabled persons is a valid

condition?

(3) Whether the decision of the State Government

vide letter dated 08.08.2014 providing that

physically disabled persons that is partially

deaf and partially blind to the extent of 40%-

50% disability are alone eligible, is in breach

of the provisions of 1995 Act and deserves to be

set aside?

Issue No.1

12. The appointment on the post of judicial service

is regulated by Tamil Nadu State Judicial Service

(Cadre and Recruitment) Rules, 2007 (hereinafter

referred to as “Rules, 2007”). As per Rule 5, which

11 provides for “Method of appointment, Qualification

and Age etc.”, the post of Civil Judge is filled up

by direct recruitment on the basis of Preliminary

Examination, Main examination and viva voce test

conducted by the Tamil Nadu Public Service Commission

in accordance with the procedure prescribed in

Annexure-II to the Rules. Annexure-II of the Rules

contained the heading “Civil Judge by Direct

Recruitment”. Sub-clause(1) provides that the Tamil

Nadu Public Service Commission (hereinafter referred

to as the ‘Commission’) shall invite applications for

direct recruitment to the post of Civil Judge, with

reference to the vacancies reported by the Government

through one English daily and one Tamil daily, having

wide circulation in the State. Sub-clause(2)

provides that a candidate who applies for direct

recruitment to the said post should send along with

his application, copies of all the essential

certificates and documents specified in the

notification issued by the Commission. The Tamil Nadu

Public Service Commission issued a notification No.

15/2014 dated 26.08.2014 inviting applications

12 through online mode for direct recruitment to 162

posts of Civil Judge. Sub-clause F and sub-clause G

of Clause 4 containing General Information is as

follows:-

“F. In G.O.Ms.No.53, Social Welfare & Nutritious Meal Programme Department, dated 11.04.2005, G.O.(Ms) No.642, Home (Courts-

I) Department, dated 31.08.2012 and Government letter No.49858/Cts-I/2014-4, dated 08.08.2014 the post of Civil Judge has been identified as suitable for PD/PB/O categories of Differently Abled persons alone [PD- Partially Deaf(40- 50%disability), PB- Partially Blind(40-50% disability), O-Ortho]. The Candidates should upload the documents referred in para 14 (f) of the Commission’s ‘Instructions to the candidates’ when called for.

G. The Differently Abled persons should upload a copy of certificate of physical fitness specifying the nature of physical handicap and the degree of disability based on the norms laid down, from the Medical Board to the effect that his/her handicap will not render him/her incapable of efficiently discharging the duties attached to the post of Civil Judge (to which he/she has been selected before appointment when called for).”

13. Clause F refers to three Government Orders dated

11.04.2005, 31.08.2012 and 08.08.2014. The Government

Order dated 11.04.2005 was a Government Order by which

13 the post of Civil Judge (Junior Division) was

identified as one of the posts under Section 33 of the

Act, 1995. Government Order dated 31.08.2012 was a

Government Order by which exemption was granted to the

posts of District Judge (Entry Level) and Civil Judge

in the Tamil Nadu State Judicial Service from the

provisions of the Section 33 in respect of complete

blindness and complete hearing impairment. The

Government Order dated 08.08.2014 communicated the

decision of the Government taken with consultation of

the High Court to go ahead with the selection to the

post of Civil Judge notifying the percentage of

disability as 40-50% for partially blind and partially

deaf for the selection for 162 posts of Civil Judge.

The relevant portion of Government Order dated

08.08.2014 is as follows: -

“In continuation of the Government letter fifth cited, I am directed to state that in view of the administrative exigencies and not to delay the selection, the High Court has considered the Tamil Nadu Public Service Commission's letter dated 04.08.2014 and accepts the proposal to go ahead with the selection for the posts of Civil Judge notifying the percentage of disability as 40- 50% for partially blind and partially deaf, for the

14 present selection alone. The Registrar General, High Court of Madras has therefore requested to go ahead with the issue of Notification immediately for the 162 posts of Civil Judge announcing 40-50% of disability for partially blind and partially deaf, for the present selection alone. A copy of the D.O. letter seventh is enclosed for your reference.

2. I am to request you to take the necessary steps to notify the 162 vacancies for recruitment to the post of Civil Judge immediately.

Yours faithfully Sd/-

For Principal Secretary to Government”

14. The advertisement, thus, clearly provided that

post of Civil Judge has been identified as suitable

for partially deaf/partially blind/ortho categories of

differently abled persons (40%-50% disability). In

the online application submitted by petitioner in the

column of percentage of disability, he has only

mentioned “more than 40%”. The certificate of

disability, which was submitted by the appellant as

required by Rules, 2007 as well as the advertisement

dated 26.08.2014 mentioned in Column (3) “(3).

Percentage of disability in his/her case is 70%”.

Thus, according to own case of the appellant, he was

15 suffering with disability of 70%, which made him

ineligible for the post of Civil Judge advertised by

notification dated 26.08.2014 since the disability

required for the post was only 40%-50%. We, thus,

conclude that as per the certificate submitted by the

appellant that he suffers from 70% disability, he was

ineligible for the post advertised vide notification

dated 26.08.2014. The issue is answered accordingly.

15. The appellant in his writ petition filed in the

Madras High Court although has noticed the

notification dated 26.08.2014 calling for the

recruitment to the 162 posts of Civil Judges issued by

the Tamil Nadu Public Service Commission, but in the

writ petition did not challenge the Clause F of the

advertisement in so far it prescribed requirement of

40%-50% for partially blind and partially deaf. Only

following prayer was made:

“For the aforesaid reasons, this Hon’ble Court may be pleased to issue any appropriate Writ, Order or Direction and in particular issue a Writ in the nature of Certiorarified Mandamus to call for the records and to quash the impugned Oral Test List dated 01.04.2015 for selection of

16 candidates for the Post of civil Judge(Junior Division) and consequently nd direct the 2 Respondent to permit the petitioner to participate in the oral test and pass such other and further orders as may be deemed fit and to meet the ends of justice.”

16. During the pendency of the writ petition an

amendment application was filed by the appellant to

quash the Government letter dated 08.08.2014 which

amendment application was allowed by the High Court

and even in the amendment application filed by the

appellant the notification dated 26.08.2014 issued by

the TNPC was not challenged. The appellant cannot be

allowed to question the condition of eligibility with

regard to partial blindness i.e. 40%-50% when he

failed to challenge the advertisement dated 26.08.2014

providing for the said requirement. The appellant

applied in pursuance of the above advertisement and

participated in the written examination and when he

was not called for oral test, he filed writ petition.

It was under the interim order of the High Court that

he was permitted to participate in oral test but the

High Court by interim order had directed not to

17 declare the result of the appellant. The appellant

having failed to challenge Clause 4(F) of the

notification dated 26.08.2014, he cannot be allowed to

challenge the condition of 40%-50% partial blindness.

We are in full agreement with the submission of the

learned counsel for the High Court that the writ

petition was liable to be dismissed on this ground

alone.

Issue Nos.2 and 3

17. Issue Nos. 2 and 3 being interconnected are taken

together. The Government order dated 08.08.2014 as

already extracted above, addressed to the Tamil Nadu

Public Service Commission states that the High Court

has considered the Tamil Nadu Public Service

Commission's letter dated 04.08.2014 and accepts the

proposal to go ahead with the selection for the posts

of Civil Judge notifying the percentage of disability

as 40- 50% for partially blind and partially deaf.

Thus, the Government Order was issued after due

consultation of the High Court, which had agreed with

providing for percentage of disability as 40%-50% for

18 partially blind and partially deaf for the post of

Civil Judge (Junior Division). Whether Condition of

40%-50% for partially blind and partially deaf is a

valid condition or the said condition is in breach of

provisions of the Act, 1995, are questions to be

answered. It is relevant to look at certain

provisions of the Act, 1995 in this regard. Section

2(b) defines “Blindness” in following manner: -

(b) "Blindness" refers to a condition where a person suffers from any of the following conditions, namely: -

(i) Total absence of sight. or

(ii) Visual acuity not exceeding 6/60 or 20/200 (Snellen) in the better eye with correcting lenses; or

(iii) Limitation of the field of vision subtending an angle of 20 degree or worse;

18. Section 2(i) defines disability to the following

effect: -

(i) "disability" means-

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) loco motor disability;

(vi) mental retardation;

(vii) mental illness;

19 19. Section 2(t) of the Act, 1995 defines expression

‘person with disability’ in the following words:

Section 2(t): “person with disability” means a person suffering from not less than forty per cent of any disability as certified by a medical authority;

20. The above definition clearly means that person

with disability is a person who is suffering from not

less than 40% of any disability. Thus, benefit of

reservation under the Act thus can be claimed only by

a person who is suffering from 40% or more of any

disability.

21. For the purposes of present case, we are not

concerned with complete blindness, since by

notification dated 31.08.2012, exemption has already

been granted under proviso to Section 33 of the Act,

1995 in reference to the post of Civil Judge (Junior

Division) exempting complete blindness and complete

hearing impairment for the post. Thus, those

candidates, who are completely blind are clearly not

eligible for the post. Section 2(u) defines persons

with low vision, which is as follows: -

20

(u) "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device;

22. The reservation of posts under the Act, 1995 for

disabled (differently challenged) persons is provided

in Section 33, which is to the following effect:-

33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- (i) Blindness or low vision; (ii) Bearing impairment; (iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

23. As per the Act, 1995, “one per cent of vacancies

were reserved for persons suffering from blindness or

low vision”. Clause 4(F) of the advertisement refers

to Government order dated 11.04.2005, 31.08.2012 and

08.08.2014. By the Government order dated 11.04.2005

21 post of Civil Judge(Junior Division) had been

identified at Item No.102. Item No.102 which has

already been extracted above makes it clear that

categories of disabled persons suitable for the job

are PB/PD/ORTHO (partially blind/ partially

deaf/ortho). As noticed above complete blindness being

already exempted, the two posts of Civil Judges(Junior

Division) have been reserved in the advertisement for

partially blind, partially deaf and ortho. The

blindness has been defined in Section 2(t) as quoted

above. The post has been identified for partially

blind and not for completely blind person. As per the

definition under Section 2(t) of “person with

disability”, a partially blind person having more than

40% disability is contemplated to be person who is in

the field of eligibility.

24. Partially blind is a word which is not defined in

the Act. A disability may be partial or total, a

temporary or permanent. We are concerned in this case

with partial disability which is not total.

22

25. One of the submissions of learned counsel for the

appellant in this context need to be considered. It

is submitted that those who suffer from partial

blindness of more than 50% are also partial blind

hence how can they be excluded from consideration.

The word “partial blind” may be a general concept but

where a percentage has been fixed looking to nature of

job, it cannot be said that all partially blind are

eligible. There is a valid classification with a

nexus to object sought to be achieved, when

eligibility is fixed 40% to 50% of disability. In

this context, it is relevant to notice that when the

posts were identified as Item No.102 by Government

order dated 11.04.2005 physical requirements were also

mentioned by the Government order which requirements

were to the following words:

“S/ST/W/SE/H/RW”

26. The Government order dated 11.04.2005 has

explained the terms of physical requirements, which

are to the following effect:

Sl.No. Code Physical Requirements

23 1 S Work performed by sitting 2 ST Work performed by standing 3 RW Work performed by Reading/Writing 4 W Work performed by Walking 5 B Work performed by Bending 6 SE Word performed by seeing 7 H Work performed by Hearing/Speaking

Thus, partially blind and partially deaf having

physical requirements, as noticed above, were

identified for the post of Civil Judge(Junior

Division). The physical requirements were specified

looking to the nature of the job of Civil Judge(Junior

Division). Partially blind and partially deaf

disability of 40%-50% has been pegged to achieve the

object of appointing such partially blind and

partially deaf physically disabled persons who are

able to perform the duties of Civil Judge(Junior

Division). As noticed above Government order dated

08.08.2014 was issued by the State Government after

consultation with the High Court and the TNPC

specifying the partially blind and partially deaf as

40%-50% taking into account all relevant

considerations. In this context, it is relevant to

notice that the physical requirements which were

24 identified by the Government by order dated 11.04.2005

for the post of Civil Judge (Junior Division)

ultimately has been incorporated into the statutory

Rules. The Tamil Nadu State Judicial Service (Cadre

and Recruitment) Rules, 2007 have been amended by the

Government Order dated 03.04.2018. Amended Rule 10 is

as follows:

*10. Reservation of appointments:-

Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act 14 of 2016) relating to reservation of appointment and Section 34 of the Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016) shall apply for appointment to the cadres of District Judge (Entry Level) and Civil Judge, by direct recruitment.

Provided that four percent of vacancies shall be reserved for the following persons with "benchmark disabilities", namely:-

(i).One percent for the persons in the following category of disabilities under the category of `Locomotor disability' (as defined in the Schedule appended to the Rights of Persons with Disabilities Act, 2016):-

(a) Locomotor disability of One Arm, One Leg and Both Legs;

(b) Leprosy cured person;

(c) Dwarfism;

(d) Acid attack victims;

25 (ii) One percent for the persons with 'Low vision' under the category of 'Visual Impairment' (as defined in the Schedule appended to the Rights of Persons with Disabilities Act 2016);

(iii) One percent for the persons with 'hard of hearing' under the category of "Hearing Impairment" (as defined in the Schedule appended to the Rights of Persons with Disabilities Act, 2016);

(iv). Remaining One percent for the persons mentioned in the above clauses (i), (ii) &

(iii), above, on rotation basis.

Explanation:- The roster points meant for the candidates with benchmark disabilities mentioned in clauses (d) and (e) of sub section (1) of Section 34 of the said Central Act, shall be allotted to the candidates in categories (i) to (iii) mentioned above, in the same order:

Provided further that the candidates who perform the following physical activities alone are Eligible:-

(a) - Work Performed by Sitting - S (b) - Work Performed by Standing - ST (c) - Work Performed by Writing - W (d) - Work Performed by Seeing - SE (e) - Work Performed by Hearing - H (f) - Work Performed by Reading and Writing - RW (g) - Communicating (Communicating would also include verbal or non-verbal communication) — C.

27. The explanation of the Rule 10 contains the

physical requirements which were earlier noticed in

26 the Government order dated 11.04.2005. It is true

that the amendment made in Rule 10 by the Government

order dated 03.04.2018 has no application and not

relevant for determining the issue in the present case

but incorporation of a proviso into the explanation of

Rule 10 manifests the intention of Rule making

authority which was earlier manifested in the

executive order dated 11.04.2005.

28. There is another important aspect of the matter,

which needs to be dealt with. Under Constitution of

India, control over judicial services is vested with

the respective High Court. Articles 233, 234 and 235

of the Constitution of India may be referred in this

context. The present case is a case of recruitment to

the post of Civil Judge (Junior Division), which

recruitment is undertaken in accordance with Rules,

2007 framed in exercise of the powers conferred by

Articles 233, 233A, 234, 235 and proviso to Article

309 of the Constitution of India by the Governor of

Tamil Nadu in consultation with the High Court of

Madras and Tamil Nadu Public Service Commission, which

27 is clear from the opening words of the Rules as given

below:-

“In exercise of the powers conferred by Article 233, 233A, 234, 235 and the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu in consultation with the High Court, Madras and Tamil Nadu Public Service Commission, wherever necessary, hereby makes the following Rules:”

29. The Judicial service being public service is

included in Entry 41 List II of the Seventh Schedule

of the Constitution. The State having competence to

legislate on Entry 41, i.e. State public Services;

State Public Service Commission, it has also executive

power under Article 154 of the Constitution of India.

Thus, the State Government was fully competent to take

any executive decision with regard to recruitment on

the post of Civil Judge (Junior Division),

supplementing the Statutory Rules, 2007.

30. At this stage, we may deal with one of the

submissions, which has been raised by the learned

counsel for the appellants. Learned counsel for the

appellant submits that High Court has relied on

28 proposed amendments to Rules, 2007, which was

undertaken by the State Government with the High Court

on its administrative side in pursuance of a Division

Bench judgment of Madras High Court in Writ Petition

No. 27089 of 2008. The High Court in Paragraph No.

22(xii) has noticed the Government Order dated

14.03.2013 by which the Government of Tamil Nadu has

sent a letter dated 06.02.2013 to the High Court

seeking approval for an amendment to the Recruitment

Rules especially Rule 10. A draft of the amendment

proposed to the Rules 5 and 10 was also extracted in

Paragraph No. 22(xii).

31. Learned counsel submits that the proposed

amendment was under consideration of the High Court

and several correspondences took place between the

High Court and the State of Tamil Nadu but amendments

could not be finalised till the completion of

selection hence reliance by the High Court on the

proposed amendments was wholly uncalled for. High

Court has also noticed that by resolution of the Full

Court dated 05.07.2014, the matter was referred to the

29 Rule Committee but before the Rule Committee could

take a decision, the process of selection of 162 posts

had begun. High Court after noticing the aforesaid

fact has further noticed the latter dated 04.08.2014

sent by the Public Service Commission to the

Government seeking consent of the Government to issue

a Notification for recruitment, fixing 40%-50%

disability for partially blind and partially deaf

candidates. Relevant facts in this context have been

noticed in Paragraph No. 22(xviii), which is to the

following effect:-

“(xviii) Therefore, the Public Service Commission sent a letter dated 4.8.2014 to the Government seeking the consent of the Government to issue a Notification for recruitment, fixing 40-50% disability for partially blind and partially deaf candidates. The Government sought the opinion of the High Court and the High Court gave no objections. Thereafter, the Government issued the impugned communication dated 8.8.2014 directing the Service Commission to initiate the process of selection of 162 Civil Judges, by notifying the percentage of disability as 40-50% for partially blind and partially deaf, for the present selection alone. This is why paragraph 4.F was incorporated in the Notification bearing No. 15/2014 dated 26.8.2014 issued by the Public Service Commission.”

30

32. High Court, thus, was well aware that the

notification dated 26.08.2014 issued by the Public

Service Commission was initiated on the basis of the

Government Order dated 04.08.2014 and the amendment of

the Rules as proposed had nothing to do with the

advertisement issued by the Public Service Commission.

The advertisement dated 26.08.2014 also has

specifically referred to the G.O. of the Government

dated 08.08.2014. Thus, in the recruitment in

question the proposed amendment in the Rules neither

played any role nor had any relevance. High Court has

noticed the aforesaid facts, for the completion of

facts. It is clear that the proposed amendments had no

relevance with regard to recruitment in question. The

submission of the learned counsel for the appellants

that High Court has relied on the proposed amendments,

thus, has no substance.

33. We now again revert back to the Constitutional

Scheme with regard to subordinate judiciary. Section

33 of the Act, 1995 provides that reservation for

persons or class of persons with classes of

disability, which is referable to Article 16(1) of the

31 Constitution of India. This Court had occasion to

consider a State Legislation referable to Article

16(4) of the Constitution of India in State of Bihar

and Another Vs. Bal Mukund Sah and Others, (2000) 4

SCC 640. A Constitution Bench in the above case had

occasion to consider a question of recruitment of

District Judge and other judicial officers in the

State of Bihar in context of a State Legislation

namely Bihar Reservation of Vacancies in Posts and

Services (for Scheduled Castes, Scheduled Tribes and

other Backward Classes) Act, 1991. By the aforesaid

Act, 1991 reservation for direct recruitment to the

posts in the judiciary of the State were provided for.

Advertisement was issued reserving posts as per the

Act, 1991, which was challenged in the High Court.

High Court has struck down the terms of advertisement

holding it ultra vires to the provision of Article 233

of the Constitution. The State of Bihar took the

matter to this Court. A Constitution Bench of this

Court in the above case came to examine the issue of

recruitment to the judicial service in context of the

reservation as provided by the State Act. After

32 noticing the Constitutional Scheme under Articles 233,

234, 235 and 309 and the Rules framed by the Governor

for recruiting judicial officers, this Court laid down

following in Paragraph No. 29:-

“29. …………..But so far as the entry points are concerned, namely, recruitment and appointment to the posts of Presiding Officers of the courts subordinate to the High Courts, only Articles 233 and 234 would govern the field. Article 234 lays down the procedure and the method of recruiting judicial officers at grass-root level being Subordinate Judges and Munsifs as laid down by the 1955 Rules. These Rules are also framed by the Governor of Bihar in exercise of his powers under Article 234 obviously after the consultation of the High Court and the Public Service Commission. Rules regarding the procedure of selection to be followed by the State Public Service Commission as found in Rules 4 to 17 deal with the method to be adopted by the Public Service Commission while selecting candidates who offer their candidature for the posts advertised to be filled in. These Rules obviously require consultation with the Commission on the procedural aspect of selection process. But so far as the High Court is concerned, its consultation becomes pivotal and relevant by the thrust of Article 233 itself as it is the High Court which has to control the candidates, who ultimately on getting selected, have to act as Judges at the lowest level of the Judiciary and whose posting, promotion and grant of leave and other judicial control would vest only in the High Court, as per Article 235 first part, once they enter the Judicial Service

33 at grass-root level. Thus consultation of the Governor with the High Court under Article 234 is entirely of a different type as compared to his consultation with the Public Service Commission about the procedural aspect of selection………………………..”

34. This Court has laid down that both Articles 309

and 245 will have to be read subject to Articles 233

and 234. In Paragraph No. 32, following has been laid

down:-

“32. It is true, as submitted by learned Senior Counsel, Shri Dwivedi for the appellant State that under Article 16(4) the State is enabled to provide for reservations in services. But so far as “Judicial Service” is concerned, such reservation can be made by the Governor, in exercise of his rule-making power only after consultation with the High Court. The enactment of any statutory provision dehors consultation with the High Court for regulating the recruitment to the District Judiciary and to the Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to the Subordinate Judiciary and the exclusive field earmarked in connection with such appointments by Articles 233 and 234. It is not as if that the High Courts being constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16(4). The High Courts can get consulted by the Governor for framing appropriate rules regarding reservation for governing

34 recruitment under Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bypassing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to the District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the constitutional scheme, will also fall foul on the concept relating to “separation of powers between the Legislature, the Executive and the Judiciary” as well as the fundamental concept of an “independent Judiciary”. Both these concepts are now elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme.”

35. From the facts as noticed above, the State

Government has consulted both the Public Service

Commission as well as the High Court in reference to

appointment of disabled persons on the post of Civil

Judge (Junior Division). There is consensus in the

view of State Government, Public Service Commission

and the High Court that partially blind and partially

deaf persons suffering with disability be allowed to

participate in the recruitment, who has disability of

40%-50%. The High Court being well aware about the

requirements for the appointment in the judicial

35 service and it being guardian of subordinate

judiciary, has a say in the eligibility of a person,

who seeks appointment on the post of Civil Judge

(Junior Division). Judicial service being part of

Public Service, the State in consultation with the

High court is fully empowered to lay down the

eligibilities for selection on the post of Civil Judge

(Junior Division). The Government Order dated

08.08.2014 supplements the Rules, 2007 and in no

manner contravene any of the provisions of the Rules.

The condition of having 40%-50% disability was

prescribed by the Public Service Commission as per the

Government Order issued by the State of Tamil Nadu

after consultation with the High Court. The above

condition in no manner can be said to be invalid.

Learned counsel for the appellant has submitted that

restricting the disability to 40%-50% in reference to

persons having partial blindness is clearly denying

the of reservation as provided under Section 33 of the

Act, 1995 and is not in accord with Section 33 of the

Act.

36

36. Section 33 of the Act, 1995 requires that every

appropriate Government shall appoint in every

establishment such percentage of vacancies not less

than three per cent for persons or class of persons

with disability of which one per cent each shall be

reserved for persons suffering from Blindness or low

vision. This Court in Government of India Vs. Ravi

Prakash Gupta and Another, (2010) 7 SCC 626, in

Paragraph No. 29 laid down that a duty has been cast

upon the appropriate Government to make appointments

in the number of posts reserved for the three

categories mentioned in Section 33. Following was

observed in Paragraph No.29:-

“29. …………………In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein……………………………”

37. This Court in Union of India and Another Vs.

National Federation of the Blind and Others, (2013) 10

37 SCC 772 has elaborately examined the objects and

reasons of the Act, 1995 and laid down following in

Paragraph No. 24:-

“24. Although, the Disability Rights Movement in India commenced way back in 1977, of which Respondent 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993–2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz. the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections.”

38

38. In the above case, this Court has occasion to

consider Section 33 of the Act, 1995. This Court

dealt with the manner of computing 3% reservation for

the persons with the disabilities as per Section 33 of

the Act. Another issue which was considered as to

whether post-based reservation must be adhered to or

vacancy-based reservation. Learned counsel for the

appellant has relied on the above judgment in support

of his submission that objective of the Act, 1995 as

noticed by this Court have to be fulfilled and

restricting the disability to 40%-50% for purpose of

eligibility for the post of Civil Judge (Junior

Division) shall frustrate the provisions of Section 33

as well as the object of the Act.

39. The legal position with regard to reservation of

posts for persons with disability is now well

established that every appropriate Government is

obliged to reserve posts for persons or class of

persons with disability. In the present case, we are

concerned with partial disability. The present is not

a case where the respondent has not reserved the post

39 for partial disability as required by Section 33 of

the Act, 1995. Thus, requirement of reservation as

mandated by Section 33 is clearly fulfilled. The issue

is regarding eligibility of appellant to participate

in the selection and as to whether the requirement in

the advertisement that only those, who suffer from

disability of 40%-50% are eligible, is contrary to the

Act, 1995 or is in breach of any statutory provision.

The State, which is appointing authority of Public

Service in consultation with the High Court with

reference to post of Civil Judge (Junior Division) can

very well lay down the essential eligibilities and

requirement for the post. When the State, High Court

and Public Service Commission are of the view that

disability, which is suitable for appointment on the

post of Civil Judge should be between 40%-50%, the

said prescription does not violate any statutory

provision nor contravene any of the provisions of the

Act, 1995. It is well within the power of appointing

authority to prescribe eligibility looking to the

nature of the job, which is to be performed by holder

of a post.

40

40. A judicial officer in a State has to possess

reasonable limit of the faculties of hearing, sight

and speech in order to hear cases and write judgments

and, therefore, stipulating a limit of 50% disability

in hearing impairment or visual impairment as a

condition to be eligible for the post is a legitimate

restriction i.e. fair, logical and reasonable. The

High Court in its additional statement has

incapsulated the functions and duties of Civil Judge

in following words:-

“7. That in so far as the area of discharge of functions and duties of the judicial officers viz., Civil Judges is concerned this involves performances of strenuous duties:- they have to read documents, pleadings and ascertain facts and issues; monitor proceedings to ensure that all applicable rules and procedures are strictly followed without any violation; advise advocates, litigants and Court personnel regarding conduct, issues, and proceedings; participate in judicial proceedings to help in resolving disputes; preside over hearings and hear allegations made by plaintiffs and defendants to determine whether the evidence supports the charges or the averments made; write decisions on cases independently after reading and analysing evidence and documents; while recording evidence observe

41 the demeanour of witnesses etc. Impaired vision can only make it extremely difficult, even impossible, to perform any of these functions at all. All these apart, he/she has to perform duties such as conducting inquiries, recording dying declarations, going through identification parades, record statements of victims, conduct in-camera proceedings, passing orders on remand and extension and other administrative functions. In so far as District judges are concerned, apart from performing their usual judicial duties, they have to perform a myriad administrative duties also. Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications. Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post.”

41. The reasons as given above by the respondent No.3

fully justified the requirement of disability to the

extent of 50% which is reasonable, just and fair.

High Court did not commit any error in dismissing the

writ petition filed by the appellant. In view of the

foregoing discussions, we, thus, came to the

conclusion that prescription of disability to the

42 extent of 40%-50% for recruitment for the post of

Civil Judge (Junior Division) was valid and does not

contravene any of the provisions of the Act, 1995 or

any other statutory provision. Issue Nos. 2 and 3 are

answered accordingly. We, thus, do not find any merit

in this appeal and the same is accordingly dismissed.

..........................J. ( ASHOK BHUSHAN )

..........................J. ( K.M. JOSEPH ) NEW DELHI, JANUARY 22, 2019.

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