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

2. The brief facts giving rise to this appeal are: After enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the) the State of Tamil Nadu vide GO 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:e ofl requirementsof disabled persons suitable for the jobil Nadu State Judicial ServiceCivil Judge (Junior3. The Government of Tamil Nadu had also issued a notification dated 31.08.2012 inrs conferred by proviso to Section 33 of the Act,1995 exempting the post of District Judge (Entry Level) and Civil Judge in theNadu State Judicial Servicefrom the provision of the said Section 33 in 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 ofCivil Judge (JuniorDivision). The TNPC has written a letter datedto both the State Government as well as the High Court proposing to notify thety as 40%-50% for partially blind and partially deaf for selection of 162Civil Judge (JuniorDivision). The High Court communicated its approval to the aforesaid proposal which was also consented by theil Nadu. Theof Tamil Naduissued 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 datedinviting applications through online for direct recruitment.5. The appellant, a practicing Advocate, submitted online application in response to the notification No.15/2014 dated 26.08.2014. In the columnthe appellant had mentionedThe 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 requirephysical disability obtained from the Medical Board specifying that his/her physical disability would not render him/herly discharging his/her official duties for the post of Civil Judge. The appellant in response to the said letter submitted his certificates including thephysical disability dated 10.10.2014.6. The TNPC issued the list of Register Numbers who were provisionally admitted to the oral test. Theof the appellant wasnot included in the list of 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 applicationof the appellant wasallowed. 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 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.

Reasoning:
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.