V. SURENDRA MOHANversusSTATE OF TAMIL NADU & ORS.

954                      [2019]REPORTS
               SUPREME COURT    1 S.C.R. 954                 [2019] 1 S.C.R.


A                           V. SURENDRA MOHAN
                                         v.
                      STATE OF TAMIL NADU & ORS.
                          (Civil Appeal No. 83 of 2019)
B
                               JANUARY 22, 2019
                [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
             Persons with Disabilities (Equal Opportunities, Protection of
C     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
D     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
E     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
F     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
G     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.

H
                                        954
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                 955


      Persons with Disabilities (Equal Opportunities, Protection of            A
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
                                                                               B
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%                C
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
                                                                               D
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.
                                                                               E
       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               F
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
                                                                               G
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
                                                                               H
956            SUPREME COURT REPORTS                        [2019] 1 S.C.R.


A     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
B
      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
C
      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
D     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.
E
            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
F     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
G     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
H     (40%-50% disability). In the online application submitted by
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                           957


petitioner in the column of percentage of disability, he has only        A
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
                                                                         B
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          C
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            D
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            E
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    F
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       G
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            H
958            SUPREME COURT REPORTS                      [2019] 1 S.C.R.


A     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
B
      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,
C     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
D     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
E     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
F     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
G     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
H     than three per cent for persons or class of persons with disability
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                          959


of which one per cent each shall be reserved for persons suffering      A
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       B
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        C
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        D
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         E
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%      F
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          G
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          H
960              SUPREME COURT REPORTS                             [2019] 1 S.C.R.


A             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.
B                                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
C
              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.
D           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,
E     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
F     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
G
      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:

H
       V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                    961
                  [ASHOK BHUSHAN, J.]

    “LIST OF POSTS IDENTIFIED UNDER GROUP A & B                                    A
CATEGORIES

 S.No. Name of Post        Physical               Categories of        Group
       and                 requirements           disabled persons
       Department                                 suitable for the job
 102     Tamil Nadu                                                                B
         State Judicial
         Service          S/ST/W/SE/H/RW PB/PD/ORTHO                    A
         Civil Judge
         (Junior
         Division/
         Judicial                                                                  C
         Magistrate-First
         Class)

       3. The Government of Tamil Nadu had also issued a notification
dated 31.08.2012 in exercise of powers conferred by proviso to Section             D
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                 E
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                F
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                G
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
                                                                                   H
962             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A     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
B
      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
C     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 viva-
      voce,however, the result of the appellant will be kept in a sealed envelope,
D     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
E     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
F     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
G     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
H     those who suffer from disability of 40%-50%. When the post was
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                   963
                 [ASHOK BHUSHAN, J.]

identified by letter dated 11.04.2005 there was no restriction for only          A
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
                                                                                 B
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           C
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
                                                                                 D
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           E
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       F
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           G
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       H
964             SUPREME COURT REPORTS                             [2019] 1 S.C.R.


A     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
B
      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
C     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
D
      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
E     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?
F
             (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
G            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
H     Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                               965
                 [ASHOK BHUSHAN, J.]

(hereinafter referred to as “Rules, 2007”). As per Rule 5, which provides    A
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
                                                                             B
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   C
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
                                                                             D
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       E
      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   F
      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      G
      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             H
966             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     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
B
      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
C     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
D           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
E           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.
F
                                                                  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/
G     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
H     (3) “(3). Percentage of disability in his/her case is 70%”. Thus, according
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                  967
                 [ASHOK BHUSHAN, J.]

to own case of the appellant, he was suffering with disability of 70%,          A
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
                                                                                B
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        C
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         D
      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             E
      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          F
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          G
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            H
968            SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     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.
B     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
C     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
D     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: -
E
            (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
F           degree or worse;
            18. Section 2(i) defines disability to the following effect: -
                (i) “disability” means-
                  (i) blindness;
G                 (ii) low vision;
                  (iii) leprosy-cured;
                  (iv) hearing impairment;
                  (v) loco motor disability;
H
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                     969
                 [ASHOK BHUSHAN, J.]

            (vi) mental retardation;                                               A
            (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              B
      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            C
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          D
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
                                                                                   E
      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
                                                                                   F
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       G
      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
                                                                                   H
970             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A           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
B     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
C     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
D     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
E     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
F     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:
G
            “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:

H
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                   971
                 [ASHOK BHUSHAN, J.]

                                                                                 A
  Sl.No.   Code           Physical Requirements

  1               S                    Work performed by sitting

  2               ST                 Work performed by standing
                                                                                 B
  3             RW               Work performed by Reading/Writing

  4               W                  Work performed by Walking

  5               B                  Work performed by Bending
                                                                                 C
  6               SE                  Word performed by seeing

  7               H              Work performed by Hearing/Speaking


       Thus, partiallyblind and partially deaf having physical requirements,
as noticed above, were identified for the post of Civil Judge(Junior             D
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           E
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 identified by the Government
by order dated 11.04.2005 for the post of Civil Judge (Junior Division)          F
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:-                                        G
       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
                                                                                 H
972      SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     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
B     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;

C        (b) Leprosy cured person;
         (c) Dwarfism;
         (d) Acid attack victims;
      (ii) One percent for the persons with ‘Low vision’ under the
      category of ‘Visual Impairment’ (as defined in the Schedule
D
      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);
E     (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
F     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
G
         (b) - Work Performed by Standing - ST
         (c) - Work Performed by Writing - W
         (d) - Work Performed by Seeing - SE
         (e) - Work Performed by Hearing - H
H
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                  973
                 [ASHOK BHUSHAN, J.]

          (f) -Work Performed by Reading and Writing - RW                       A
          (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 the Government order dated
11.04.2005. It is true that the amendment made in Rule 10 by the                B
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.                                                                     C
       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),     D
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 is clear from the opening words
of the Rules as given below:-                                                   E

      “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:”                             F
      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          G
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              H
974             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     counsel for the appellant submits that High Court has relied on proposed
      amendments to Rules, 2007, which was undertaken by the State
      Government with the High Court on its administrative side 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
B
      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
C     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
D     Court dated 05.07.2014, the matter was referred to the Rule Committee
      but before the Rule Committee could take a decision, the process of
      selection of 162 posts had begun. High Court after noticing the aforesaid
      fact has further noticed the latter dated 04.08.2014 sent by the Public
      Service Commission to the Government seeking consent of the
      Government to issue a Notification for recruitment, fixing 40%-50%
E     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
F           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
G           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.”
H
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                 975
                 [ASHOK BHUSHAN, J.]

       32. High Court, thus, was well aware that the notification dated        A
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
                                                                               B
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,        C
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 Constitution of India. This         D
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            E
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          F
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 noticing
the Constitutional Scheme under Articles 233, 234, 235 and 309 and the         G
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
                                                                               H
976            SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A           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
B
            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
C           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
D
            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 at grass-root level. Thus consultation of the Governor
            with the High Court under Article 234 is entirely of a different
E           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,
F     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
G           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
H
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                  977
                 [ASHOK BHUSHAN, J.]

      exclusive field earmarked in connection with such appointments            A
      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
                                                                                B
      rules regarding reservation for governing 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         C
      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
                                                                                D
      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                E
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      F
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            G
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
                                                                                H
978            SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A     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. Section 33 of the Act, 1995 requires that every appropriate
B     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 fromBlindness 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
C     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
D           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……………………………”
E           37. This Court in Union of India and Another Vs. National
      Federation of the Blind and Others, (2013) 10 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
F           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
G           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
H           opportunities to persons with disabilities by way of reservation of
       V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                    979
                  [ASHOK BHUSHAN, J.]

       posts and establishment of a special employment exchange for                A
       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
                                                                                   B
       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. 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%              C
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            D
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             E
Government is obliged to reserve posts for persons or class of persons
with disability. In the present case, we are concerned with partial
disability. The present is not a case where the respondent has not reserved
the post for partial disability as required by Section 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   F
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             G
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,
                                                                                   H
980            SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     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. 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
B     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:-
C           “7. That in so far as the area of discharge of functions and duties
            of thejudicial officers viz., Civil Judges is concerned this involves
            performancesof strenuous duties:- they have to read documents,
            pleadings andascertain facts and issues; monitor proceedings to
            ensure that allapplicable rules and procedures are strictly followed
            without anyviolation; advise advocates, litigants and Court
D           personnel regardingconduct, issues, and proceedings; participate
            in judicial proceedings tohelp in resolving disputes; preside over
            hearings and hear allegationsmade by plaintiffs and defendants to
            determine whether the evidencesupports the charges or the
            averments made; write decisions on casesindependently after
E           reading and analysing evidence and documents;while recording
            evidence observe the demeanour of witnesses etc.Impaired vision
            can only make it extremely difficult, even impossible, toperform
            any of these functions at all. All these apart, he/she has toperform
            duties such as conducting inquiries, recording dying declarations,
            going through identification parades, record statements ofvictims,
F           conduct in-camera proceedings, passing orders on remand
            andextension and other administrative functions. In so far as
            District judgesare concerned, apart from performing their usual
            judicial duties, theyhave to perform a myriad administrativeduties
            also. Therefore, creatingany reservation in appointment for those
G           with disabilities beyond the50% level is far from advisable as it
            may create practical and seeminglyother avoidable complications.
            Moreover, given the need to preparejudgments based on the case
            papers and other material records in aconfidential manner, the
            assistance of a scribe or the like completelytakes away the secrecy
            and discreetness that come with the demandsof the post.”
H
      V. SURENDRA MOHAN v. STATE OF TAMIL NADU                                    981
                 [ASHOK BHUSHAN, J.]

       41. The reasons as given above by the respondent No.3 fully                A
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 extent of 40%-50% for recruitment for the post of Civil Judge
                                                                                  B
(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.

                                                                                  C
Ankit Gyan                                                    Appeal dismissed.




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