# V. SURENDRA MOHAN v. STATE OF TAMIL NADU & ORS

- **Citation:** [2019] 1 S.C.R. 954
- **Court:** Supreme Court of India
- **Decided:** 2019-01-22
- **Case number:** Civil Appeal No. 83 of 2019
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-surendra-mohan-v-state-of-tamil-nadu-ors-33448
- **Pages:** 28

## Headnote

Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - Tamil Nadu Public Service
Commission (TNPC) received a requisition from the State Government
for 162 posts of Civil Judge (Junior Division) - TNPC proposed to
notify the percentage of disability as 40%-50% for partially blind
and partially deaf - State Government by order dated 08.08.2014
communicated the decision to go ahead with the percentage of
disability as 40%-50% for partially blind and partially deaf with
the consultation of the High Court - Pursuant thereto, TNPC issued
notification inviting applications for direct recruitment - Appellant
appeared in selection process under partially blind category -
Disability Certificate issued to the appellant mentioned his disability
as 70% - Written examination was conducted - Name of the
appellant was not included in the list of successful candidates -
Writ petition filed by the appellant - High Court held that as per
government order dated 08.08.2014 and Notification issued by
TNPC partially blind with 40%-50% disability were only eligible to
participate in the selection process - On appeal, held: The
advertisement-notification clearly provided that post of Civil Judge
was identified as suitable for partially deaf/partially blind/ortho
categories of differently abled persons with 40%-50% disability -
Certificate of disability submitted by the appellant mentioned
appellant having disability of 70%, which made him ineligible for
the post of Civil Judge advertised by notification, since the disability
required for the post was only 40%-50% - High Court did not commit
any error in dismissing the Writ petition filed by the appellant -
Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules,
2007.
[2019] 1 S.C.R. 954
954
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Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - Condition of 40%-50%
disability for partially blind and partially deaf categories of disabled
persons in a notification for recruitment of Civil Judges (Junior
Division) issued by the Public Service Commission - Validity of -
Tamil Nadu Public Service Commission (TNPC) issued notification
for the 162 posts of Civil Judge (Junior Division) and announced
40%-50% disability for partially blind and partially deaf categories
of disabled persons - Held: 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 condition of having 40%-50%
disability was prescribed by the Public Service Commission as per
the Government Order issued by the State after consultation with
the High Court - There was 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% - Thus, condition of 40%-50% disability for partially
blind and partially deaf categories of disabled persons cannot be
said to be invalid - Tamil Nadu State Judicial Service (Cadre and
Recruitment) Rules, 2007.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - s.33 - Tamil Nadu Public
Service Commission (TNPC) issued notification for 162 posts of
Civil Judge (Junior Division) and announced 40%-50% disability
for partially blind and partially deaf for the selection in question -
Appellant contended that Act, 1995 does not provide for any such
restriction that the eligibility is of only those who suffer from disability
of 40%-50% - Held: s.33 of the Act, 1995 requires that every
appropriate Government shall appoint in every establishment such
percentage of vacancies not less than three percent for persons or
class of persons with disability of which one percent each shall be
reserved for persons suffering from blin

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SUPREME COURT REPORTS
[2019] 1 S.C.R.
V. SURENDRA MOHAN
v.
STATE OF TAMIL NADU & ORS.
(Civil Appeal No. 83 of 2019)
JANUARY 22, 2019
 [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - Tamil Nadu Public Service
Commission (TNPC) received a requisition from the State Government
for 162 posts of Civil Judge (Junior Division) - TNPC proposed to
notify the percentage of disability as 40%-50% for partially blind
and partially deaf - State Government by order dated 08.08.2014
communicated the decision to go ahead with the percentage of
disability as 40%-50% for partially blind and partially deaf with
the consultation of the High Court - Pursuant thereto, TNPC issued
notification inviting applications for direct recruitment - Appellant
appeared in selection process under partially blind category -
Disability Certificate issued to the appellant mentioned his disability
as 70% - Written examination was conducted - Name of the
appellant was not included in the list of successful candidates -
Writ petition filed by the appellant - High Court held that as per
government order dated 08.08.2014 and Notification issued by
TNPC partially blind with 40%-50% disability were only eligible to
participate in the selection process - On appeal, held: The
advertisement-notification clearly provided that post of Civil Judge
was identified as suitable for partially deaf/partially blind/ortho
categories of differently abled persons with 40%-50% disability -
Certificate of disability submitted by the appellant mentioned
appellant having disability of 70%, which made him ineligible for
the post of Civil Judge advertised by notification, since the disability
required for the post was only 40%-50% - High Court did not commit
any error in dismissing the Writ petition filed by the appellant -
Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules,
2007.
[2019] 1 S.C.R. 954
954
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Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - Condition of 40%-50%
disability for partially blind and partially deaf categories of disabled
persons in a notification for recruitment of Civil Judges (Junior
Division) issued by the Public Service Commission - Validity of -
Tamil Nadu Public Service Commission (TNPC) issued notification
for the 162 posts of Civil Judge (Junior Division) and announced
40%-50% disability for partially blind and partially deaf categories
of disabled persons - Held: 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 condition of having 40%-50%
disability was prescribed by the Public Service Commission as per
the Government Order issued by the State after consultation with
the High Court - There was 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% - Thus, condition of 40%-50% disability for partially
blind and partially deaf categories of disabled persons cannot be
said to be invalid - Tamil Nadu State Judicial Service (Cadre and
Recruitment) Rules, 2007.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - s.33 - Tamil Nadu Public
Service Commission (TNPC) issued notification for 162 posts of
Civil Judge (Junior Division) and announced 40%-50% disability
for partially blind and partially deaf for the selection in question -
Appellant contended that Act, 1995 does not provide for any such
restriction that the eligibility is of only those who suffer from disability
of 40%-50% - Held: s.33 of the Act, 1995 requires that every
appropriate Government shall appoint in every establishment such
percentage of vacancies not less than three percent for persons or
class of persons with disability of which one percent each shall be
reserved for persons suffering from blindness or low vision - The
present is not a case where the respondent has not reserved the post
for partial disability as required by s.33 of the Act, 1995 - Thus,
requirement of reservation as mandated by s.33 is clearly fulfilled -
The State, which is appointing authority of Public Service in
V. SURENDRA MOHAN v. STATE OF TAMIL NADU
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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.
Constitution of India - Arts. 154, 233, 234, 235 and Entry 41
List II of the Seventh Schedule - State Government, if competent to
take any executive decision with regard to recruitment on the post
of Civil Judge (Junior Division) - Held: Judicial Service being
Public service is included in Entry 41 List II of the Seventh Schedule
of the Constitution - State having competence to legislate on Entry
41, i.e. State public Services; State Public Service Commission, it
has also executive power under Art. 154 of the Constitution of India
- Thus, the State Government is fully competent to take any executive
decision with regard to recruitment on the post of Civil Judge (Junior
Division), supplementing the Statutory Rules, 2007 - Tamil Nadu
State Judicial Service (Cadre and Recruitment) Rules, 2007.
Dismissing the appeal, the Court
HELD: Whether the appellant who was suffering with
disability of 70% (visual impairing) was eligible to participate in
the selection as per notification dated 26.08.2014 of the Tamil
Nadu Public Service Commission ?
1. The Government Order dated 08.08.2014 communicated
the decision of the State 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. [Para 13][966-B-C]
2. The advertisement dated 26.08.2014 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
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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 Tamil Nadu State
Judicial Service (Cadre and Recruitment) Rules, 2007 as well as
the advertisement mentioned in Column (3) "(3). Percentage of
disability in his/her case is 70%". Thus, according to own case
of the 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%. Thus, 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. [Para 14][966-G-H; 967-A-B]
3. 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 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.
[Para 16][967-F-H; 968-A]
Whether the condition of 40%-50% disability for partially
blind and partially deaf categories of disabled persons is a valid
condition?
4. The Government order dated 08.08.2014 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
V. SURENDRA MOHAN v. STATE OF TAMIL NADU
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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 partially
blind and partially deaf for the post of Civil Judge (Junior
Division). [Para 17][968-B-C]
5. 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 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. [Para 35][977-E-H]
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?
6. Section 33 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) 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
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of which one per cent each shall be reserved for persons suffering
from Blindness or low vision. [Para 36][978-B]
7. The legal position with regard to reservation of posts
for persons with disability is well established that every
appropriate Government is obliged to reserve posts for persons
or class of persons with disability. In the present case, concern
is 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. [Para
39][979-E-H; 980-A]
8. 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, the prescription of disability to the
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. [Para
41][981-A-B]
Government of India v. Ravi Prakash Gupta and
Another (2010) 7 SCC 626 : [2010] 7 SCR 851; Union
of India and Another v. National Federation of the Blind
V. SURENDRA MOHAN v. STATE OF TAMIL NADU
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and Others (2013) 10 SCC 772 : [2013] 9 SCR 1023 -
relied on.
State of Bihar and Another v. Bal Mukund Sah and
Others (2000) 4 SCC 640 : [2000] 2 SCR 299 -
referred to.
Case Law Reference
[2000] 2 SCR 299
referred to
Para 33
[2010] 7 SCR 851
relied on
Para 36
[2013] 9 SCR 1023
relied on
Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 83 of
2019.
From the Judgment and Order dated 05.06.2015 of the High
Court of Judicature at Madras in W.P. No. 10582 of 2015.
Siddharth Dave, Ms. Pooja Dhar, Ms. Jemtiben, Surya Prakash,
Advs. for the Appellant.
K. S. Mahadevan, Krishna Kumar R. S., Ms. Swati Bansal, Rajesh
Kumar, M. Yogesh Kanna, S. Raja Rajeshwaran, G. Ananda Selvam,
Ms. Narmatha Meenakshi Sundaram, A. Manikandan, Jay Kishor Singh,
Ms. Purbikaa Mitra, K. V. Vijayakumar Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. 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 Participation) Act, 1995
(hereinafter referred to as the "Act, 1995") 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:
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"LIST OF POSTS IDENTIFIED UNDER GROUP A & B
CATEGORIES
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 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.
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
S.No.
Name of Post
and
Department
Physical
requirements
Categories of
disabled persons
suitable for the job
Group
102
Tamil Nadu
State Judicial
Service
Civil Judge
(Junior
Division/
Judicial
Magistrate-First
Class)
S/ST/W/SE/H/RW
PB/PD/ORTHO
A
V. SURENDRA MOHAN v. STATE OF TAMIL NADU
[ASHOK BHUSHAN, J.]
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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 selfattested 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 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 vivavoce,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 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
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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 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 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 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
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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 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 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
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(hereinafter referred to as "Rules, 2007"). As per Rule 5, which 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 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(4050%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
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was a Government Order by which 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 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
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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
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to own case of the 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%. 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 candidates for the Post of civil
Judge(Junior Division) and consequently direct the 2nd 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 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
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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 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;
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(vi) mental retardation;
(vii) mental illness;
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 claimedonly 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: -
(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
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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 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.
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:
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Thus, partiallyblind 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).