Madras High Court
G. Christian vs Government Of Tamil Nadu on 18 April, 2013
Bench: K.N. Basha, N. Paul Vasanthakumar
In the High Court of Judicature at Madras Date : 18.04.2013 Coram : The Hon'ble Mr. Justice K.N. Basha and The Hon'ble Mr. Justice N. Paul Vasanthakumar Writ Petition Nos: 27236 and 27953 of 2012 1.G. Christian 2.M. Vignesh Prabu 3.M. Chittibabu ... Petitioners (In WP No.27236/2012) S. Venkatesan ... Petitioner (In WP No.27953/2012) -vs- 1. Government of Tamil Nadu, Department of Home, Rep. By its Principal Secretary, Fort St. George, Chennai.9. 2.The Registrar General, High Court, Madras 104. ... Respondents (In both Wps.) Petition in WP No. 27236 of 2012 filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to abide by the requirement of Rule 10 of the Tamil Nadu State Judicial Services (Cadre and Recruitment) Rules 2007 by issuing appropriate orders of selection and appointment to the petitioners by including their names in final list vide G.O.(4D) No.71, dated 10.9.2012 and by issuing appropriate amendment or consideration as the case may be based on their ranking obtained among the candidates, who applied for the posts reserved for physically challenged category pursuant to the notification dated 21.1.2012 for the post of Civil Judges issued by the first respondent. Petition in WP No. 27953 of 2012 filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents herein to consider the petitioner's candidature and appoint him to the post of Civil Judge (Junior Division) in the Tamil Nadu State Judicial Services following the notification dated 21.1.2012 under the physically challenged quota. For petitioners (in WP No.27236/2012) : Mr. V. Prakash Sr. Counsel for Mr. K. Sudalaikannu For petitioner (In WP No.27953/2012) : Mr. S. Sadasharam For respondents (In both Wps.) : Mr.P. Sanjai Gandhi Addl.. Govt. Pleader R1 Mr. R. Tholgappian - R2 .. .. .. COMMON ORDER
(Order of the Court was made by K.N. BASHA,J.,) W.P.No. 27236 of 2012 is filed to direct the respondents to abide by the requirement of Rule 10 of the Tamil Nadu State Judicial Services (Cadre and Recruitment) Rules 2007 by issuing appropriate orders of selection and appointment to the petitioners by including their names in final list vide G.O.(4D) No.71, dated 10.9.2012 and by issuing appropriate amendment or consideration as the case may be based on their ranking obtained among the candidates, who applied for the posts reserved for physically challenged category pursuant to the notification dated 21.1.2012 for the post of Civil Judges issued by the first respondent.
2. W.P.No. 27953 of 2012 is filed to direct the respondents herein to consider the petitioner's candidature and appoint him to the post of Civil Judge (Junior Division) in the Tamil Nadu State Judicial Services following the notification dated 21.1.2012 under the physically challenged quota.
3. The petitioners in both the matters have come forward with the common prayer.
4. In view of the issue involved in these matters being common, we heard the matters together and passed the following common order.
5. In W.P.No. 27953 of 2012, single petitioner has come forward with the above said prayer and in W.P.No. 27236 of 2012 there are three petitioners. All the petitioners are coming under the category of Orthopaedically challenged.
6. Initially, in these matters it is brought to our notice that this Court by an order dated 15.4.2009 in W.P.No. 27089 of 2008 issued the following suggestion:-
"A Judge may be physically handicapped, but he is supposed to hear the case and write the judgment. If a person has total hearing impairment, such as deaf or his is blind, it is not clear, how such person can function as a Judge of a Court to hear cases and then deliver Judgment and why not the State Government under provision to Section 33 of the Act has issued notification exempting judicial service from the purview of part of Section 33 relating to complete blindness and complete hearing impairment. Notification if any issued by State Government in this regard has to be perused. For that reason, we direct both the respondent State and Tamil Nadu Public Service Commission to file their affidavit/additional affidavit enclosing copy of such notification and reply to the queries raised by this Court."
7. As there are vacancies available under the category of physically challenged candidates including the carry forward vacancies, we have earlier passed an order dated 22.3.2013 referring the order dated 15.4.2009 of this Court in W.P.No. 27089 of 2008 and the Government Order in G.O.Ms.No. 642 Home (Courts-I) Department, dated 31.8.2012, which reads as follows:-
" 2. It is brought to the notice of this Court that this Court by the order dated 15.04.2009 in W.P.No.27089 of 2008 made the following suggestion :
"A Judge may be physically handicapped, but he is supposed to hear the case and write the judgment. If a person has total hearing impairment, such as deaf or his is blind, it is not clear, how such person can function as a Judge of a Court to hear cases and then deliver Judgment and why not the State Government under provision to Section 33 of the Act has issued notification exempting judicial service from the purview of part of Section 33 relating to complete blindness and complete hearing impairment. Notification if any issued by State Government in this regard has to be perused. For that reason, we direct both the respondent State and Tamil Nadu Public Service Commission to file their affidavit/additional affidavit enclosing copy of such notification and reply to the queries raised by this Court."
3. The Government of Tamil Nadu, accepting the suggestion of this Court, passed an order in G.O.Ms.No.642, Home (Courts-I) Department, Dated 31.08.2012, notifying as hereunder :
"NOTIFICATION In exercise of the powers conferred by the proviso to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Central Act 1 of 1996), the Governor of Tamil Nadu, in consultation with the High Court of Madras, hereby exempts the posts of District Judge (Entry Level) and Civil Judge in the section 33 in respect of persons with complete blindness and complete hearing impairment."
In view of the above said Government Order and Notification, the position is now very clear that the persons with complete blindness and complete hearing impairment are not eligible to be appointed to the posts of District Judge (Entry Level) and Civil Judge in the Tamil Nadu State Judicial Service and the said posts have been exempted from the proviso to Section 33 of the Act.
4. It is pertinent to note that the said Government Order in G.O.Ms.No.642, Home (Courts-I) Department, was passed on 31.08.2012 and the final selection list was published as per Government Order in G.O.(4D).No.71, Home (Courts-I) Department, dated 10.09.2012 and as such, the Government Order in G.O.Ms.No.642 was passed prior to the finalization and publication of the final list after fulfilling the requirement of reservation under different categories.
5. In view of the same, the petitioners, who are coming under the category of Orthopaedically challenged, are entitled to seek the relief of posts as per proviso to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
6. In the common counter-affidavit filed by the second respondent, in respect of writ petitions in W.P.Nos.27236 and 27953 of 2012, it is stated in paragraph 12 as hereunder :
"It is respectfull submitted that a total number of 461 candidates were called for the viva voce and out of which, 151 candidates did not secure the minimum prescribed marks for the viva voce. Thus only 310 candidates were shortlisted for selection and on the basis of merit, rule of reservation based on the 200 point Communal Roster as prescribed by the Government in G.O.(Ms)No.65, P & AR (K) Department, dated 27.05.2009, a total of 174 candidates were provisionally selected, the remaining being unfilled for want of candidates satisfying communal, General/Women, physically disability turns. The details of the elevan has carried forward vacancies are as follows :
1. General Turn (General) Blind - 2
2. Backward Class (Women) Deaf - 1
3. Backward Class (General) Blind - 1
4. Most Backward Class / DC (General) Deaf - 1
5. Most Backward Class / DC (Women) Ortho - 1
6. Scheduled Castes (Women) Deaf - 1
7. Scheduled Castes (General) Blined - 1
8. Scheduled Tribe (General) - 3
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----- 7. The above-said statement makes it abundantly clear that as on date eight vacancies under the Physically challenged quota are available. It is also stated by the second respondent in the counter-affidavit that no other Physically Challenged person had qualified after the oral test under the blind and deaf category having partial blindness or partial deafness. The petitioners, who are four in number, are claiming the posts reserved under the Physically challenged quota and they are coming under the category of Orthopaedically challenged.
8. In the light of the above said Government Order and considering that there are vacancies available under the said quota, the Registry is directed to place all these facts before the Hon'ble High Power Committee for its appropriate decision."
8. Pursuant to the order of this Court dated 22.3.2013, the learned counsel for the second respondent produced the minutes of the high power committee held on 10.4.2013 where the above said issue was discussed as subject No.1 and the high power committee considered and passed the following resolution:-
" Subjects 1 & 2:-
Direct recruitment of 185 posts of Civil Judges G.O.(4D) No.71, Home (Cts.I) Department dated 10.9.2012, issued appointing 167 candidates as Civil Judges - writ petitions filed two letters received from Thiru R. Tholgappian, Advocate appearing on behalf of the High Court, Madras in W.P.No. 30158/2012, W.P.No.27236/2012 and 27953/2012 requested certain clarifications with regard to the civil judge recruitment process placed before the Hon'ble the Acting Chief Justice ordered to be placed before the Hon'ble High Power Committee submitted consideration of reg. Direct recruitment for 185 posts of civil judge G.O. Issued appointing 167 candidates as civil judges W.P.Nos.27953/2012, 27236/2012 and 30158/2012 filed by four physically challenged candidates Directions issued by the Hon'ble Division Bench Office Note placed before the Hon'ble The Acting Chief Justice Directed to place before the Hon'ble High Power Committee submitted consideration of reg. Considered. In view of the order of the High Court dated 15.4.2009 in W.P.No.27089 of 2008 and G.O.Ms.No.642, Home (Cts-I) Department, dated 31.8.2012, the persons with complete blindness and complete hearing impairment are exempted from the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Under such circumstances, the question of inter-changeability between the three categories mentioned in Section 33 of the aforesaid Act does not arise. However, it is made clear that reservation is applicable to the third category of Orthopaedically challenged."
9. In view of the resolution passed by the high power committee coupled with the Government Order and the order of this Court dated 15.4.2009 in W.P.No. 27089 of 2008, the position as on date in respect of the physically challenged category and more particularly, orthopaedically challenged are stated in the common counter statement filed by the second respondent in paragraph 13, which is extracted hereunder:-
" (13) It is respectfully submitted that a total number of 8 candidates under differently abled categories including the petitioners herein had passed the written examinations and participated in the viva voce. Their details are as follows:-
Sl.No. Name of Candidate Nature of Disability Communal Category 1 Surendra Moha Blind BC (Other than Muslim) 2 Selvakumar.R. Blind MBC & DC 3 Shanmuga Raj.P. Ortho General Turn(General)Ortho 4 Subbiah.R. Ortho MBC & DC 5 Christian.G. Ortho BC (Other than Muslim) 6 Venkatesan.S. Ortho BC (Other than Muslim) 7 Vignesh Prabhu.M. Ortho SC 8 Chittibabu Ortho SC Thiru P. Shanmuga Raj(Sl.No.3) alone was selected against the turn for physically handicapped namely General Turn (GT) (Ortho) as he has scored 226 marks. Thiru R. Subbiah (Sl.No.4) has been selected under the communal quota meant for MBC/DC as he has scored 225 marks. The candidates (Sl.No.1 and 2) have lost their chance, as they have failed in viva voce."
10. Therefore, it is apparently clear that as on date, eight vacancies are available including carry forward vacancies and after the selection of two candidates namely, Shanmugaraj.P. and R.Subbaiah, who were mentioned as Sl.Nos. 3 and 4 in the counter statement extracted above, under the disability of orthopaedically challenged category as per the reservation under general turn (General) Ortho and MBC & DC. There are eight vacancies as on date and those vacancies have been carry forwarded without selecting the petitioners in view of the reasons assigned in the counter statement of the second respondent.
11. Mr. V. Prakash, learned senior counsel appearing for the petitioners in WP No. 27236 of 2012 and Mr.S. Sadasharan learned counsel appearing for the petitioner in WP No. 27953 of 2012 relied upon the Section 36 of the Persons with disabilities (equal opportunities, protection of rights and full participation)Act 1995 (hereinafter referred to as 'the Act') and contended that the vacancies once carried forward, cannot be carry forwarded further. It is also contended that as per Rule 10 of the Tamil Nadu State Judicial Services (Cadre and Recruitment Rules) 2007, Rules 21 (b) and 22 of the Tamil Nade State and Subordinate Service Rules are made applicable in respect of the recruitment of Civil Judges (Junior Division) and therefore, it is relevant to refer the above said provision hereunder:-
" 10 Reservation of appointments:-
Rule 21 (b) and 22 of the General Rules for the Tamil Nadu State and Subordinate Service relating to reservation of appointment shall apply to the selection for appointment to the post of District Judge (Entry Level) and Civil Judge by direct recruitment. (2) Candidates with the following disabilities, namely, blind, deaf/orthopaedically handicapped can seek for recruitment for the post of civil judge. (1) 3 per cent of the vacancies in the post of civil judge in direct recruitment has to be filled by physically handicapped, namely, blind deaf/ orthopadically handicapped. In the event of only one vacancy, the rule of reservation for physically handicapped shall not apply.
Provided that the candidate must produce a certificate from the Medical Board to the effect that the disability will not affect the performance of the job, namely, civil Judge before appointment."
12. Learned senior counsel as well as the learned counsel for the petitioner in W.P.No. 27236 of 2012 also placed reliance on the provisions of the Section 33 of the Act, which reads as follows:-
" Reservation of Posts:- 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...
(i)blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability.
Provided that 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."
13. On a perusal of the above said provisions would make it crystal clear that 3% disabled persons coming under the category of orthopaedically challenged are entitled to reservation in the absence of partially blind and partially deaf candidates are available.
14. As far as the cases on hand are concerned, it is clearly stated in the counter affidavit of the second respondent that the candidates in the above said category viz., partially blind and partially deaf are not available and in view of the same, the rest of the category more particularly, orthopaedically challenged candidates are entitled to get selection and appointment under Section 33 of the Act.
15. The reasons given by the second respondent in the counter affidavit for non selection of the petitioners are not acceptable as the same is not in conformity with the provisions relied upon by the learned senior counsel and the counsel for the petitioner in W.P.No. 27953 of 2012 and we have incorporated the same earlier.
16. At the risk of repetition, it is also to be reiterated that even the high power committee of this Court has clarified the position stating more particularly as under:-
" Considered. In view of the order of the High Court dated 15.4.2009 in W.P.No.27089 of 2008 and G.O.Ms.No.642, Home (Cts-I) Department, dated 31.8.2012, the persons with complete blindness and complete hearing impairment are exempted from the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Under such circumstances, the question of inter-changeability between the three categories mentioned in Section 33 of the aforesaid Act does not arise. However, it is made clear that reservation is applicable to the third category of Orthopaedically challenged."
17. However, the said reservation is applicable to the third category of orthopaedically challenged. Now, the admitted position is that there are eight vacancies to be filled up under the above said categories. As on date, only the petitioners numbering four are available as they are coming under the category of orthopaedically challenged and they have also passed the written examination as well as the viva voce. Such being the position, there is no justification for denying the benefit of reservation under the category of orthopaedically challenged.
18. It is also pertinent to state that Section 33 of the Act mandates 3% reservation and even the selection and appointment of civil judge (junior division) is also identified by the Government for selection of candidates under the said category as per the provisions of Section 33 of the Act.
19. It is pointed out by the learned senior counsel as well as the learned counsel for the petitioner in WP No.27953 of 2012 that all these candidates namely petitioners are having the disability only in the legs and not in either of the hands.
20. In such circumstances, we are of the view that there is absolutely no medical or legal bar for the functioning of the petitioners as the civil judges (junior division). Accordingly, these writ petitions are allowed and the second respondent shall send a proposal for the selection and appointment of the petitioners as civil judges (junior division) within a period of three weeks from today. The first respondent in turn, on receipt of such proposal from the second respondent, shall complete the exercise of selection and appointment of the petitioners by passing the Government Order within a period of four weeks. Consequently, connected miscellaneous petitions are closed. No costs.
(KNBJ) (NPVJ) 18.4.2013 ra Note: Issue order copy on or before 23.4.2013. Index: Yes/No Internet: yes/No To 1. Government of Tamil Nadu, Department of Home, Rep. By its Principal Secretary, Fort St. George, Chennai.9. 2.The Registrar General, High Court, Madras 104. K.N. Basha,J., and N. Paul Vasanthakumar,J., WP Nos. 27236 & 27953/2012 Date: 18.4.2013