Madras High Court
M.Suresh vs The Secretary on 3 March, 2011
Bench: N.Paul Vasanthakumar, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/03/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD).No.2166 of 2010 and W.P.(MD).No.3220 of 2010 M.Suresh .. Petitioner in W.P.(MD).No.2166 of 2010 A.Ramesh Babu .. Petitioner in W.P.(MD).No.3220 of 2010 Vs. 1.The Secretary Tamil Nadu Public Service Commission, Chennai. .. 1st and 3rd respondents in both W.Ps. 2.The Tamil Nadu Government rep by its Secretary, Law Department, Fort St., George, Chennai-9. .. 2nd respondent in both W.Ps. 3.The Registrar General, High Court of Madras, High Court, Madras, Chennai. .. 3rd respondent in W.P.No.3220 of 2010 4.In the High Court of Judicature At Madras Rep by the Registrar, Madras High Court, Chennai -104. .. 1st respondent in Respondent W.P.No. PRAYER in W.P.(MD)No.2166 of 2010 Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents to operate the Reserve list for the 4 vacancies meant for the physically handicapped candidates carried forward in the post of Civil Judge (Junior Division) in Tamilnadu State Judicial Service and give appointment to the petitioner to the said post as he is at S.No.2 under SC (General) Category as evidenced from the memorandum No.5718/OTD-C1/2006 of the 3rd respondent dated 3.11.2008 with effect from the date of appointment given to all other selected candidates with all monetary and service benefits. PRAYER in W.P.(MD)No.3220 of 2010 Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling the impugned orders in memorandum No.5718/OTD-C1/2006 dated 03.11.2008 on the file of the first respondent and to quash the same so far as listing the petitioner in the reversed list instead of merit list, among the reserve category of Scheduled Caste candidates and consequently directing the respondents to give appointments to the petitioner as Civil Judge (Junior Division) in accordance with the reservation policy in the reserved category of Scheduled Caste. !For Petitioner ... Mr.R.Singaravelan for (in W.P.No.2166 of 2010) Mr.M.Siddharthan For Petitioner ... Mr.R.Appavu Rethinam (in W.P.No.3220 of 2010) ^For Respondent 1 and 3... Mr.G.Prabhu Rajadurai (in both W.Ps.) For 2nd Respondent ... R.Janakiramulu (in both W.Ps.) Special Government Pleader. :COMMON ORDER
N.PAUL VASANTHAKUMAR, J & R.SUBBIAH,J.
The petitioners in both the writ petitions are the candidates appeared for the written examination and also viva voce for selection to the post of Civil Judge (Junior Division) in the Tamilnadu State Judicial Service. Since they have not been selected to the post of Civil Judge (Junior Division) post, they have filed the present writ petitions praying for direction to the respondents to operate the reserve list for the four vacancies meant for the physically handicapped candidates, carried forward in the post of Civil Judge (Junior Division) in the Tamilnadu State Judicial Service and give appointment to the petitioners .
2.Since the issue involved in both the writ petitions are one and the same, these writ petitions are disposed of by way of this common order.
3.Brief facts which are necessary to decide the issue involved in these writ petitions are as follows:
a)The petitioners herein had applied for appointment to the post of Civil Judge (Junior Division) in Tamilnadu State Judicial Service for the year 2004-
2008 in response to the advertisement inviting the applications from the eligible candidates notified in Advertisement No.164, dated 10.05.2008 and subsequent notifications No.165 and 166. As per notifications totally 201 posts were notified by the Government and applications were called for. The petitioners herein applied and appeared in the written examination as well as for viva voce test. The petitioners are coming under the reserve category viz., Scheduled Caste. The cut off mark fixed for the SC (General) is 220 and for SC (women) was 195.
b)When the selection list was published on 03.11.2008, the name of the writ petitioner (M.Suresh) in W.P.No.2166 of 2010 was included in the reserve list against the SC (General) category in second place. So far as the writ petitioner in W.P.No.3220 of 2010 is concerned, his name was included in the SC (General) at third place. On the application filed under the Right to Information Act, 2005, the petitioner M.Suresh came to know that only 195 candidates were selected for the post of Civil Judge (Junior Division) as against 201 vacancies, for which the selection was conducted. Further, he was informed that the selection was finalised for 201+2 vacancies. 8 vacancies have not been filled up as they are meant for 4 ST and 4 Physically handicapped candidates and as the candidates under the above categories are not available, those vacancies have been duly carried forward to the next recruitment. Thus, 8 vacancies are left unfilled due to want of candidates as stated supra.
c)It is the further case of the petitioners that as per the reservation Rule 18% is required for the SC candidates and 36 persons in SC category should be appointed among 201 posts for the Civil Judge (Junior Division) and only 32 persons were selected and appointed under the SC reserved category and further 4 persons should be given appointment under the ST reserved category as per the reservation policy. Hence, the petitioners have come forward with the present writ petitions for the relief set out earlier.
d)In the counter affidavit filed by the first respondent, the Tamil Nadu Public Service Commission, it has been stated that initially 201 vacancies were notified and subsequently it was revised as 203 (including 2 ST carried forward vacancies). While finalising the selection four ST candidates (including 2 carried forward vacancies and four vacancies for physically handicapped vacancies namely GT-General PH Blind-1, BC-(OCM)(W) PH Deaf-1, MBC/DC-General PH Deaf-1 and SC-General PH Blind-1, could not be filled up due to non availability of such candidates and the vacancies were carried forward as per the rules. Hence, 195 vacancies alone were filled up and other 8 vacancies (including 4 vacancies reserved for PH candidates) have been carried forward to the next recruitment. It is further stated that according to the orders issued in G.O.Ms.No.200 SW and NMP Department, dated 22.12.2006, the vacancies reserved to be filled up by the PH candidates have to be carried forward to the next recruitment in case of non availability of physically handicapped candidates for selection.
4.Learned counsel for the petitioners submitted that 200 point roster was applied in the selection to the said posts as per Sections 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act'). The reservation for physically handicapped candidates has to be made at not less than 3%. since as per 200 point roster, 6 posts have to be granted to Physically handicapped persons. In the instant case, GT-General PH, SCH-1 and Blind-1 and Ortho-1 were selected under the physically handicapped category. Though four other persons are also physically handicapped persons Ortho category, they have been given appointment under the GT category based on marks which ultimately resulted in carrying forward four vacancies of physically handicapped category to the next recruitment. The said carried forward made is in terms of Section 36 of the Act.
5.It is further submitted by the learned counsels for the petitioners that the respondents committed an error by giving appointment to the physically handicapped ortho category under the GT category, when they ought to have been adjusted under the physically handicapped category. Under such circumstances, the question of carrying forward the post does not arise and if the carry forward is held as illegal, the petitioners will get a chance of getting the said post if the reserve list is directed to be operated.
6.Per contra, learned counsel for the respondents submitted that under Section 33 of the Act, not less than three per cent of posts shall be reserved 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)hearing impairment; (iii)locomotor disability or cerebral palsy, in the posts identified for each disability. Since the candidates are not available under each category, no infirmity could be found in carrying forward the four vacancies under the category of physically handicapped. The learned counsels also submitted that Rule 10 of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 (hereinafter referred to as "the Rules") provides for reservation of appointments.
7.By way of reply, learned counsel appearing for the petitioners submitted that the reservation for physically handicapped persons is a horizontal reservation and hence the carry forward vacancy will not apply. In support of his contentions, the learned counsel for the petitioners relied upon the following judgments:
"i)In Rajesh Kumar Daria Vs. Rajastahn Public Service Commission and others reported in 2007 (8) SCC 785
ii)In Jitendra Kumar Singh and another Vs.State of Uttar Pradesh and others reported in (2010) 3 SCC 119
iii)In Government of India through Secretary and another Vs.Ravi Prakash Gupta and another reported in (2010) 7 SCC 626 and
iv)In Syed Bashir-ud-din Qadri and Nazir Ahmed Shah and others reported in (2010) 3 SCC 603".
8.We have considered the respective submissions made by the learned counsel appearing on either side and perused the materials available on record.
9.From the submissions made by the learned counsel for the respective parties, the question that arises for consideration in these writ petitions is whether the carry forward of four vacancies meant for physically handicapped persons for the next recruitment on the ground of non availability of candidates in the present selection, is correct or not?
10.For deciding the said question, it is appropriate to extract Sections 33 and 36 of the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rule 10 of the Rules, 2007 which are as follows:
"Section 33. Reservation of posts: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 person 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 the appropriate Government, may having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
36.Vacancies not filled up to be carried forward:- Where in any recruitment year any vacancy under Section 33, cannot be filled up due to non availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government"
Rule 10 of Tamil Nadu State Judicial Service (Cadre & Recruitment), Rules 2007 "10.Reservation of appointments: Rules 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 posts of District Judge and Civil Judge (Junior Division) by direct recruitment. (2)Candidates with the following disabilities, namely, blind/deaf/orthopaedically handicapped can seek for recruitment for the post of Civil Junior (Junior Division).
(i)3 per cent of the vacancies in the post of Civil Judge (Junior Division) in direct recruitment has to be filled by physically handicapped, namely, blind/deaf/orthopaedically handicapped. In the event of only one vacancy, the rule of reservation shall not apply.
Provided the candidates 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 (Junior Division) before appointment."
11.On perusal of Section 33 of the Act, it is evident that 3% of posts shall be reserved for physically handicapped persons. Further three categories mentioned therein should be identified for appointment to the said posts. Rule 10 of the above quoted Rule also mandates filling up of 3 categories of physically handicapped persons. In the instant case, one blind and one orthopaedically handicapped candidate alone were appointed under the physically handicapped category. Out of 6 vacancies earmarked for physically handicapped candidates, since 2 candidates each are not available under three categories four posts were carried forward by the respondents in terms of Section 36 of the Act. The object of the Act is to provide equal opportunities and protection of rights and full participation to physically handicapped persons. If the posts are not carried forward due to non- availability of categories of persons, there would be statutory violation of Central Act 1 of 1996, which is a special enactment. The respondents herein having identified the posts and reserved 6 posts of 2 each in blind or low vision, hearing impairment and locomotive disability they alone are bound to be selected. It is the case of the respondents that four candidates in those categories are not available and therefore, four posts were carried forward and it can be filled up with candidates not having disability only if candidates are not available in the subsequent selection in terms of Section 36. The Supreme Court in the decision reported in 2010 (5) SC 616 (Ramesh Gajendra Jadhav vs.Secretary, Late S.G.S.P.Mandal and others) held that vacancies in reserved categories cannot be converted to other category unless the rules permit.
12.In the judgment reported in (2010) 7 SCC 626 (Government of India through Secretary and another Vs.Ravi Prakash Gupta and another), the Supreme Court considered a similar issue and held as follows:
"28.For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995 are reproduced hereinbelow:
"32. Identification of posts which can be reserved for persons with disabilities.-Appropriate Governments shall-
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the developments in technology.
33. Reservation of posts.-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) hearing impairment;
(iii)locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
29.While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise".
13.Thus the respondents are bound to comply with not only Sections 33 and 36 of the Act 1 of 1996 but also Rule 10 of the Rules, while filling up 203 posts. This court cannot give a direction contrary to Sections 33 and 36 of the Act and Rule 10 of the Rules. It is to be further noted that in the counter affidavit filed by the first respondent in July 2010, it is stated that out of 8 posts available for physically handicapped persons, including 2 carried forward vacancies the following categories, are not filled up:
GT General PH Blind 1 BC-(OCM)(W) PH Deaf 1 MBC/DC-General PH Deaf 1 SC General PH Blind 1
As per the above data which is not disputed by the petitioners one vacancy in S.C.General PH Blind is not filled up. Even if the said vacancy is allowed to be filled up the petitioners will not get their chance as they are placed in the reserve list at 2 and 3. Thus, the petitioners are not eligible to get appointment even if the said carried forward vacancies are allowed to be filled up with candidates without disability.
14.The decisions relied on by the learned counsel for the petitioners have no application to the facts of these cases as the provisions of Sections 33 and 36 of the Act were not considered in any one of the cited judgments. If the posts are not carried forward due to non availability of the candidates in the respective category, it will ultimately defeat the object of the Act and Rule
10. Hence, we are not inclined to accept the submissions made by the learned counsel for the petitioners that the carry forward of four posts is not correct.
15.In view of the above findings, we do not find any merits in the writ petitions and the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
sms To
1.The Secretary Tamil Nadu Public Service Commission, Chennai.
2.The Tamil Nadu Government rep by its Secretary, Law Department, Fort St., George, Chennai-9.
3.The Registrar General, High Court of Madras, High Court, Madras, Chennai.
4.In the High Court of Judicature At Madras Rep by the Registrar, Madras High Court, Chennai -104.