REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.83     Of     2019  (Arising out of SLP(Civil)No.17223 of 2015)

V. SURENDRA MOHAN             ...APPELLANT(S)  

VERSUS

STATE OF TAMIL NADU & ORS.     ...RESPONDENT(S)   

J U D G M E N T

ASHOK BHUSHAN, J.

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

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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:

"LIST  OF  POSTS  IDENTIFIED  UNDER  GROUP  A  &  B

CATEGORIES

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

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

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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.

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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  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 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

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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

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

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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 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

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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

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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

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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 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

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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

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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  (hereinafter

referred to as “Rules, 2007”).   As per Rule 5, which

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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

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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(40- 50%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 was a Government Order by which

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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

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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 Sd/-

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 to own case of the appellant, he was

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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

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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

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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.

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

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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;  (vi)  mental retardation;  (vii) mental illness;

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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 claimed only 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: -

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(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  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

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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.  

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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:

Sl.No. Code Physical Requirements

23

1 S Work performed by sitting 2 ST Work performed by standing 3 RW Work performed by Reading/Writing 4 W Work performed by Walking 5 B Work performed by Bending 6 SE Word performed by seeing 7 H Work performed by

Hearing/Speaking

Thus, partially blind 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).  As  noticed  above  Government  order  dated

08.08.2014 was issued by the State Government after

consultation  with  the  High  Court  and  the  TNPC

specifying the partially blind and partially deaf as

40%-50%  taking  into  account  all  relevant

considerations. In this context, it is relevant to

notice  that  the  physical  requirements  which  were

24

identified by the Government by order dated 11.04.2005

for  the  post  of  Civil  Judge  (Junior  Division)

ultimately has been incorporated into the statutory

Rules. The Tamil Nadu State Judicial Service (Cadre

and Recruitment) Rules, 2007 have been amended by the

Government Order dated 03.04.2018. Amended Rule 10 is

as follows:

*10. Reservation of appointments:-  

Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil  Nadu  Act  14  of  2016)  relating  to reservation of appointment and Section 34 of the Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016) shall apply  for  appointment  to  the  cadres  of District  Judge  (Entry  Level)  and  Civil Judge, by direct recruitment.  

Provided that four percent of vacancies shall be reserved for the following persons with "benchmark disabilities", namely:-  

(i).One  percent  for  the  persons  in  the following  category  of  disabilities  under the category of `Locomotor disability' (as defined  in  the  Schedule  appended  to  the Rights  of  Persons  with  Disabilities  Act, 2016):-

(a) Locomotor disability of One Arm, One Leg and Both Legs;  (b) Leprosy cured person; (c) Dwarfism;  (d) Acid attack victims;  

25

(ii) One percent for the persons with 'Low vision'  under  the  category  of  'Visual Impairment'  (as  defined  in  the  Schedule appended  to  the  Rights  of  Persons  with Disabilities Act 2016);  

(iii)  One  percent  for  the  persons  with 'hard  of  hearing'  under  the  category  of "Hearing  Impairment"  (as  defined  in  the Schedule appended to the Rights of Persons with Disabilities Act, 2016);  

(iv). Remaining One percent for the persons mentioned in the above clauses (i), (ii) & (iii), above, on rotation basis.  

Explanation:- The roster points meant for the candidates with benchmark disabilities mentioned  in  clauses  (d)  and  (e)  of  sub section  (1)  of  Section  34  of  the  said Central  Act,  shall  be  allotted  to  the candidates  in  categories  (i)  to  (iii) mentioned above, in the same order:  

Provided further that the candidates who perform  the  following  physical  activities alone are Eligible:-

(a)  -  Work Performed by Sitting - S  (b)  -  Work Performed by Standing - ST  (c)  -  Work Performed by Writing - W  (d)  -  Work Performed by Seeing - SE  (e)  -  Work Performed by Hearing - H  (f)  -  Work  Performed  by  Reading  and

Writing - RW  (g)  -  Communicating  (Communicating

would  also  include  verbal  or non-verbal communication) — C.

27. The  explanation  of  the  Rule  10  contains  the

physical requirements which were earlier noticed in

26

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.  

28. There is another important aspect of the matter,

which needs to be dealt with. Under Constitution of

India, control over judicial services is vested with

the respective High Court.  Articles 233, 234 and 235

of the Constitution of India may be referred in this

context.  The present case is a case of recruitment to

the  post  of  Civil  Judge  (Junior  Division),  which

recruitment is undertaken in accordance with Rules,

2007 framed in exercise of the powers conferred by

Articles 233, 233A, 234, 235 and proviso to Article

309 of the Constitution of India by the Governor of

Tamil  Nadu  in  consultation  with  the  High  Court  of

Madras and Tamil Nadu Public Service Commission, which

27

is clear from the opening words of the Rules as given

below:-

“In exercise of the powers conferred by Article 233, 233A, 234, 235 and the proviso to  Article  309  of  the  Constitution  of India,  the  Governor  of  Tamil  Nadu  in consultation  with  the  High  Court,  Madras and Tamil Nadu Public Service Commission, wherever  necessary,  hereby  makes  the following Rules:”

29.   The  Judicial  service  being  public  service  is

included in Entry 41 List II of the Seventh Schedule

of the Constitution.  The State having competence to

legislate on Entry 41, i.e. State public Services;

State Public Service Commission, it has also executive

power under Article 154 of the Constitution of India.

Thus, the State Government was fully competent to take

any executive decision with regard to recruitment on

the  post  of  Civil  Judge  (Junior  Division),

supplementing the Statutory Rules, 2007.   

30.  At  this  stage,  we  may  deal  with  one  of  the

submissions,  which  has  been  raised  by  the  learned

counsel for the appellants.  Learned counsel for the

appellant  submits  that  High  Court  has  relied  on

28

proposed  amendments  to  Rules,  2007,  which  was

undertaken by the State Government with the High Court

on its administrative side in pursuance of a 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 Government of Tamil Nadu has

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 the State of Tamil Nadu but 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

29

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.  Relevant facts in this context have been

noticed in Paragraph No. 22(xviii), which is to the

following effect:-

“(xviii)  Therefore,  the  Public  Service Commission sent a letter dated 4.8.2014 to the Government seeking the consent of the Government  to  issue  a  Notification  for recruitment,  fixing  40-50%  disability  for partially  blind  and  partially  deaf candidates.  The  Government  sought  the opinion  of  the  High  Court  and  the  High Court gave no objections. Thereafter, the Government  issued  the  impugned communication dated 8.8.2014 directing the Service Commission to initiate the process of  selection  of  162  Civil  Judges,  by notifying the percentage of disability as 40-50%  for  partially  blind  and  partially deaf, for the present selection alone. This is  why  paragraph  4.F  was  incorporated  in the Notification bearing No. 15/2014 dated 26.8.2014  issued  by  the  Public  Service Commission.”

30

32. 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  classes  of

disability, which is referable to Article 16(1) of the

31

Constitution of India.  This Court had occasion to

consider  a  State  Legislation  referable  to  Article

16(4) of the Constitution of India in State of Bihar

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  the

State  of  Bihar  in  context  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.  The State of Bihar took the

matter to this Court.  A Constitution Bench of this

Court in the above case came to examine the issue of

recruitment to the judicial service in context of the

reservation  as  provided  by  the  State  Act.   After

32

noticing the Constitutional Scheme under Articles 233,

234, 235 and 309 and the Rules framed by the Governor

for recruiting judicial officers, this Court laid down

following in Paragraph No. 29:-

“29. …………..But so far as the entry points are  concerned,  namely,  recruitment  and appointment  to  the  posts  of  Presiding Officers of the courts subordinate to the High  Courts,  only  Articles  233  and  234 would  govern  the  field.  Article  234  lays down  the  procedure  and  the  method  of recruiting judicial officers at grass-root level being Subordinate Judges and Munsifs as laid down by the 1955 Rules. These Rules are also framed by the Governor of Bihar in exercise  of  his  powers  under  Article  234 obviously  after  the  consultation  of  the High  Court  and  the  Public  Service Commission.  Rules  regarding  the  procedure of selection to be followed by the State Public Service Commission as found in Rules 4 to 17 deal with the method to be adopted by  the  Public  Service  Commission  while selecting  candidates  who  offer  their candidature for the posts advertised to be filled  in.  These  Rules  obviously  require consultation  with  the  Commission  on  the procedural aspect of selection process. But so far as the High Court is concerned, its consultation  becomes  pivotal  and  relevant by the thrust of Article 233 itself as it is the High Court which has to control the candidates,  who  ultimately  on  getting selected,  have  to  act  as  Judges  at  the lowest  level  of  the  Judiciary  and  whose posting, promotion and grant of leave and other judicial control would vest only in the High Court, as per Article 235 first part, once they enter the Judicial Service

33

at grass-root level. Thus consultation of the  Governor  with  the  High  Court  under Article 234 is entirely of a different type as  compared  to  his  consultation  with  the Public  Service  Commission  about  the procedural aspect of selection………………………..”

34. This Court has laid down that both Articles 309

and 245 will have to be read subject to Articles 233

and 234.  In Paragraph No. 32, following has been laid

down:-

“32. It is true, as submitted by learned Senior  Counsel,  Shri  Dwivedi  for  the appellant  State  that  under  Article  16(4) the  State  is  enabled  to  provide  for reservations  in  services.  But  so  far  as “Judicial  Service”  is  concerned,  such reservation can be made by the Governor, in exercise  of  his  rule-making  power  only after consultation with the High Court. The enactment of any statutory provision dehors consultation  with  the  High  Court  for regulating the recruitment to the District Judiciary and to the Subordinate Judiciary will  clearly  fly  in  the  face  of  the complete  scheme  of  recruitment  and appointment  to  the  Subordinate  Judiciary and  the  exclusive  field  earmarked  in connection  with  such  appointments  by Articles 233 and 234. It is not as if that the  High  Courts  being  constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate  cases  by  resorting  to  the enabling provision under Article 16(4). The High  Courts  can  get  consulted  by  the Governor  for  framing  appropriate  rules regarding  reservation  for  governing

34

recruitment under Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bypassing the High Court and exercising its legislative  power,  circumvent  and  cut across the very scheme of recruitment and appointment  to  the  District  Judiciary  as envisaged  by  the  makers  of  the Constitution. Such an exercise, apart from being  totally  forbidden  by  the constitutional scheme, will also fall foul on the concept relating to “separation of powers  between  the  Legislature,  the Executive and the Judiciary” as well as the fundamental  concept  of  an  “independent Judiciary”.  Both  these  concepts  are  now elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme.”

35.   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 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

35

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.

Learned counsel for the appellant has submitted that

restricting the disability to 40%-50% in reference to

persons having partial blindness is clearly denying

the of reservation as provided under Section 33 of the

Act, 1995 and is not in accord with Section 33 of the

Act.   

36

36.  Section 33 of the 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 of which one per cent each shall be

reserved for persons suffering from Blindness or low

vision.  This Court in  Government of India Vs. Ravi

Prakash  Gupta  and  Another,  (2010)  7  SCC  626,  in

Paragraph No. 29 laid down that 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.  Following was

observed in Paragraph No.29:-

“29. …………………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……………………………”

37.  This Court in  Union of India and Another Vs.

National Federation of the Blind and Others, (2013) 10

37

SCC  772 has  elaborately  examined  the  objects  and

reasons of the Act, 1995 and laid down following in

Paragraph No. 24:-

“24. Although,  the  Disability  Rights Movement  in  India  commenced  way  back  in 1977, of which Respondent 1 herein was an active  participant,  it  acquired  the requisite  sanction  only  at  the  launch  of the  Asian  and  Pacific  Decade  of  Disabled Persons in 1993–2002, which gave a definite boost to the movement. The main need that emerged  from  the  meet  was  for  a comprehensive  legislation  to  protect  the rights  of  persons  with  disabilities.  In this  light,  the  crucial  legislation  was enacted  in  1995  viz.  the  Persons  with Disabilities  (Equal  Opportunities, Protection  of  Rights  and  Full Participation)  Act,  1995  which  empowers persons  with  disabilities  and  ensures protection  of  their  rights.  The  Act,  in addition to its other prospects, also seeks for  better  employment  opportunities  to persons  with  disabilities  by  way  of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for  identification  of  posts  which  can  be reserved  for  persons  with  disabilities. Section  33  provides  for  reservation  of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability,  in  any  recruitment  year  such vacancy  is  to  be  carried  forward  in  the succeeding recruitment year. The difference of opinion between the appellants and the respondents  arises  on  the  point  of interpretation of these sections.”

38

38.  In the above case, this Court has occasion to

consider Section 33 of the Act, 1995.  This Court

dealt with the manner of computing 3% reservation for

the persons with the disabilities as per Section 33 of

the Act.  Another issue which was considered as to

whether post-based reservation must be adhered to or

vacancy-based reservation.  Learned counsel for the

appellant has relied on the above judgment in support

of his submission that objective of the Act, 1995 as

noticed  by  this  Court  have  to  be  fulfilled  and

restricting the disability to 40%-50% for purpose of

eligibility  for  the  post  of  Civil  Judge  (Junior

Division) shall frustrate the provisions of Section 33

as well as the object of the Act.  

39.  The legal position with regard to reservation of

posts  for  persons  with  disability  is  now  well

established  that  every  appropriate  Government  is

obliged  to  reserve  posts  for  persons  or  class  of

persons with disability.  In the present case, we are

concerned with partial disability. The present is not

a case where the respondent has not reserved the post

39

for partial disability as required by Section 33 of

the Act, 1995.  Thus, requirement of reservation as

mandated by Section 33 is clearly fulfilled. The issue

is regarding eligibility of appellant to participate

in the selection and as to whether the requirement in

the advertisement that only those, who suffer from

disability of 40%-50% are eligible, is contrary to the

Act, 1995 or is in breach of any statutory provision.

The State, which is appointing authority of Public

Service  in  consultation  with  the  High  Court  with

reference to post of Civil Judge (Junior Division) can

very well lay down the essential eligibilities and

requirement for the post.  When the State, High Court

and Public Service Commission are of the view that

disability, which is suitable for appointment on the

post of Civil Judge should be between 40%-50%,  the

said  prescription  does  not  violate  any  statutory

provision nor contravene any of the provisions of the

Act, 1995.  It is well within the power of appointing

authority  to  prescribe  eligibility  looking  to  the

nature of the job, which is to be performed by holder

of a post.  

40

40.  A judicial officer in a State has to possess

reasonable limit of the faculties of hearing, sight

and speech in order to hear cases and write judgments

and, therefore, stipulating a limit of 50% disability

in  hearing  impairment  or  visual  impairment  as  a

condition to be eligible for the post is a legitimate

restriction i.e. fair, logical and reasonable.  The

High  Court  in  its  additional  statement  has

incapsulated the functions and duties of Civil Judge

in following words:-

“7.   That  in  so  far  as  the  area  of discharge  of  functions  and  duties  of  the judicial  officers  viz.,  Civil  Judges  is concerned  this  involves  performances  of strenuous  duties:-  they  have  to  read documents,  pleadings  and  ascertain  facts and issues; monitor proceedings to ensure that  all  applicable  rules  and  procedures are  strictly  followed  without  any violation; advise advocates, litigants and Court personnel regarding conduct, issues, and  proceedings;  participate  in  judicial proceedings to help in resolving disputes; preside over hearings and hear allegations made  by  plaintiffs  and  defendants  to determine whether the evidence supports the charges  or  the  averments  made;  write decisions  on  cases  independently  after reading  and  analysing  evidence  and documents; while recording evidence observe

41

the demeanour of witnesses etc.  Impaired vision  can  only  make  it  extremely difficult, even impossible, to perform any of these functions at all. All these apart, he/she  has  to  perform  duties  such  as conducting  inquiries,  recording  dying declarations,  going  through  identification parades,  record  statements  of  victims, conduct  in-camera  proceedings,  passing orders  on  remand  and  extension  and  other administrative  functions.  In  so  far  as District judges are concerned, apart from performing  their  usual  judicial  duties, they  have  to  perform  a  myriad administrative  duties  also.  Therefore, creating any reservation in appointment for those  with  disabilities  beyond  the  50% level  is  far  from  advisable  as  it  may create  practical  and  seemingly  other avoidable  complications.  Moreover,  given the need to prepare judgments based on the case papers and other material records in a confidential  manner,  the  assistance  of  a scribe  or  the  like  completely  takes  away the secrecy and discreetness that come with the demands of the post.”

41.  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,  we,  thus,  came  to  the

conclusion  that  prescription  of  disability  to  the

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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. Issue Nos. 2 and 3 are

answered accordingly.  We, thus, do not find any merit

in this appeal and the same is accordingly dismissed.

..........................J.     ( ASHOK BHUSHAN )

..........................J. ( K.M. JOSEPH )

NEW DELHI, JANUARY 22, 2019.  

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