Case: V. SURENDRA MOHAN Vs. STATE OF TAMIL NADU

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 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. 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 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. 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. 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 ofy, he has only mentionedof disability, whichwas submitted by the appellant as required by Rules, 2007 as well as the advertisement dated 26.08.2014 mentioned in Column (3)ty in his/her case isThus, according to ownhe appellant, he was 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%.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 inof the aboveadvertisement 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 declare the result of theNos.2 and 317. 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 Commissions letter dated 04.08.2014 and accepts the proposal to go ahead with the selection for the posts of Civil Judge notifying thety 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 forty as 40%-50% for partially blind and partially deaf for the post ofCivil Judge (JuniorDivision). 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.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 ofCivil Judge (JuniorDivision) exempting complete blindness and complete hearing impairment for the post. Thus, those candidates, who are completely blind are clearly not eligible for the post.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.he 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 worday be a general concept but where a percentage has been fixed looking tob, 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.The explanation of the Rule 10 contains thewhich were earlier noticed in 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 11.04.2005.30. At this stage, we may deal withhe submissions, which has been raised by the learned counsel for the appellants. Learned counsel for the appellant submits that High Court has relied on proposed amendments to Rules, 2007, which was undertaken by the State Government with the High Court on its administrative side ina 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 Governmentof Tamil Naduhas 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 thef Tamil Nadubut 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 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.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 classesof disability, whichis referable to Article 16(1) of the Constitution of India. This Court had occasion to consider a State Legislation referable to Article 16(4) of the Constitution of India inar 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 theof Bihar incontext 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. TheBihar took the matter to this Court. A Constitution Bench of this Court in the above case came to examine thent to the judicial service in context of the reservation as provided by the State Act.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 ofCivil Judge (JuniorDivision). 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 service and it being guardian of subordinate judiciary, has a say in the eligibility of a person, who seeks appointment on the post ofCivil Judge (JuniorDivision). 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 ofCivil Judge (JuniorDivision). 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 thef Tamil Naduafter 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 denyingof reservation asprovided under Section 33 of the Act, 1995 and is not in accord with Section 33 of the Act.36. Section 33 of the Act, 1995 requires that every appropriate Government shall appoint in every establishment suches 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.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 thatof the Act, 1995as noticed by this Court have to be fulfilled and restricting the disability to 40%-50% forty for the post ofCivil Judge (JuniorDivision) 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 for partial disability as required by Section 33of the Act,of reservation asmandated 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 ofCivil Judge (JuniorDivision) can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commissionhe 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 provisionsof the Act,It is well within the power of appointing authority to prescribe eligibility looking to thehe job, which is to be performed by holder of a post.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.