Dr.G.Sureshkumar v. The Tamil Nadu Public Service Commission, Omandurar Government Estate, Anna Salai, Chennai – 2 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13.07.2010CORAMTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.1781 of 2006and W.P.M.P.No.2033 of 2006Dr.G.Sureshkumar..PetitionerVs.1.The Tamil Nadu Public Service Commission, Omandurar Government Estate, Anna Salai, Chennai – 2.2.Government of Tamil Nadu rep. By Secretary to Government, Health Department, Fort St. George, Chennai – 9...RespondentsWrit Petition filed under Article 226 of The Constitution ofIndia praying for the issuance of a writ of certiorarified mandamusto call for the records of the first respondent relating to theNotification/Advertisement No.067 dated 01.07.2005 of the firstrespondent and quash the same in so far as Note No.(vii) "The 3%reservation for physically handicapped persons will not apply tothis recruitment" and consequently direct the respondents herein tofollow reservation for persons with disabilities in the recruitmentfor the posts of Assistant Surgeons (General) and Assistant Surgeons(Speciality) notified under the said Advertisement No.067 andconsider the case of the petitioner under reservation for pesonswith locomotor disability or cerebral palsy as per the provisions ofthe Persons with Disabilities (Equal Opportunities etc.,) Act, 1995and recruit the petitioner to one post under such reservation.For Petitioner: Ms.AL.GanthimathiFor Respondents: Ms.C.N.G.Ezhilarasi for R1 Mr.A.Suresh, Govt. Advocate for R2ORDERThe prayer in the writ petition is to quash the Notificationdated 01.07.2005 issued by the first respondent insofar as Note No. https://hcservices.ecourts.gov.in/hcservices/ (vii) "3% reservation for physically handicapped persons will notapply to this recruitment" and consequently direct the respondentsto follow reservation for persons with disability and therecruitment in the post of Assistant Surgeon (General) and AssistantSurgeon (Speciality) notified under the said advertisement andconsider the case of the petitioner under reservation for personswith locomotor disability or cerebral palsy as per the provisions ofthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995 and recruit the petitionerto one post under such reservation.2.The case of the petitioner is that the first respondentissued Notification/Advertisement No.067 for recruitment of 1295Assistant Surgeons (General) and 530 Assistant Surgeons (Speciality)in the State of Tamil Nadu by prescribing the qualification for thepost. Recruitment is to be based on written test followed by oraltest. The petitioner was given hall ticket and he also appeared forthe written test on 16.10.2005. The petitioner is a physicallyhandicapped person with locomotor disability suffering from"anterior polio" on his right lower limb and as such, he is comingwithin the definition of a person with disability as defined underSection 2(i) r/w Section 2(o) and 33(iii) of The Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 (hereinafter referred to as 'the Act'). Inthe Notification, the first respondent has stated that 3% ofreservation for physically handicapped persons will not apply to therecruitment under the said Notification. 3.The petitioner filed W.P.No.37321 of 2005 and prayed forissuance of a writ of mandamus directing the respondents to followthe reservation as provided in the said Act, without challenging theNotification issued by the first respondent. The said writ petitionwas withdrawn with liberty to challenge the Notification. Accordingto the petitioner, he having secured high marks in the written test,was called for to attend the oral test held on 16.02.2006. Accordingto the petitioner, only on account of failure to make 3% reservationin the recruitment, he was not selected. Therefore, this writpetition is filed with the above said prayer contending that failureto make reservation by the first respondent in the Notification isviolative of Section 33 of the Act and if 3% reservation isprovided, at least 1% of the vacancies could be reserved for personswith locomotor disability or cerebral palsy. The action of therespondents is arbitrary and he has sought for a direction to quashthe Notification. 4.The first respondent has filed counter affidavit by statingthat the first respondent issued Notification for 1825 vacanciesi.e. 1295 vacancies including 1 Scheduled Tribe carried forward https://hcservices.ecourts.gov.in/hcservices/ vacancy in the post of Assistant Surgeon (General) and 530 vacanciesincluding 59 carried forward vacancies in the post of AssistantSurgeon (Speciality) in the Tamil Nadu Medical Service and in Note(vii) of the Notification, it was announced that 3% reservation forphysically handicapped persons would not apply to this recruitment.The incorporation of said clause is justified by stating that theTamil Nadu Public Service Commission is entitled to take such standunder General Rule 22(aa)/executive orders issued by the Government.According to the first respondent, 5th proviso to Rule 22(aa) ofGeneral Rules states that the reservation for physically handicappedcandidates shall be made applicable in respect of posts in 'C' and'D' Groups only. The Government issued orders in G.O.Ms.No.99 P & AR(Per-S) dated 26.02.1988 in respect of Executive Posts in 'A' and'B' categories and no reservation need be made to physicallyhandicapped persons. 5.It is also contended in the counter affidavit that inG.O.Ms.No.343 H & FW Department dated 06.07.1999, orders had beenissued classifying the posts of Assistant Surgeon (both clinical andnon-clinical), Medical Officer (Siddha) as Executive Posts and thesaid posts had been ordered to be brought under the list ofExecutive Posts annexed to in G.O.No.34 P & AR Department dated12.01.1983. Relying on G.O.Ms.No.99 P & AR (Per-S) dated 26.02.1988prohibiting reservation of vacancies for physically handicappedpersons in respect of Executive Posts in 'A' and 'B' Groups, orderswere issued in G.O.Ms.No.343 H & FW Department dated 06.07.1999classifying the post of Assistant Surgeon as 'Executive Post'.Therefore, no reservation was made in the Notification as the saidposts are coming within Executive Posts.6.It is also stated in the counter affidavit that thepetitioner submitted an application under the General category. Thepetitioner has not signed in the required place provided in the OMRApplication and consequently the petitioner's application wasrejected at the first instance for the said lapse. The petitionerfiled W.P.No.32946 of 2006 and challenged the order of Tamil NaduPublic Service Commission, rejecting the petitioner's application.This Court by way of interim order permitted the candidatesincluding the petitioner herein to participate in all stages ofrecruitment process, pending disposal of the batch of writpetitions. Consequently, the petitioner was also permitted to appearfor the main written examination and based on the marks secured byhim, he was also permitted to attend the oral test. The petitionerattended the oral test on 16.02.2006. The petitioner did not reachthe zone of selection either for inclusion in the main selectionlist or for placement in the reserve list on the basis of the totalmarks secured by him. The said batch of cases were dismissed by theDivision Bench of this Court on 12.06.2006. https://hcservices.ecourts.gov.in/hcservices/

7.It is also stated in the counter affidavit that though thewrit petition filed by the petitioner viz., W.P.No.32946 of 2006 wasomitted to be included in the judgment in the batch of cases, theratio of the judgment will apply to the petitioner's case and thepetitioner's application cannot be treated as a valid application ashe has admittedly not signed in the relevant place in the OMRApplication. As against the order of the Division Bench, Dr.AnjanaRekha and others have filed S.L.P.No.12271 of 2006 before theSupreme Court and the said S.L.P. was also dismissed by the SupremeCourt on 19.09.2007. Thereafter, the order of the Division Benchdated 12.06.2006 has become final.8.Learned counsel for the petitioner submitted that thepetitioner, being a physically handicapped person, has got a rightto maintain the writ petition, challenging the Notification whichfailed to provide 3% reservation for the physically handicappedpersons which is a mandatory provision to be followed by therespondents as per Section 33 of the Act. The learned counsel forthe petitioner further submitted that the physical disability of thepetitioner being proved by way of a certificate issued by theMedical Board, Coimbatore District on 09.03.2005, certifying thatthe petitioner is 50% blind, he is entitled to be considered forselection.9.In answer to the said submission, learned counsel for thefirst respondent submitted that the State Government has notpermitted to fill up Group 'A' and 'B' posts by following thereservation provided to physically handicapped persons in ExecutivePosts viz., Group 'A' and 'B' posts and even after providing 3%reservation under Section 33 of the Act, unless the posts areidentified by the second respondent, the first respondent, which isa recruiting body is not in a position to implement the same.Learned counsel for the second respondent also made submission onthe said line. 10.I have considered the rival submissions of the learnedcounsel for the petitioner as well as the respective counsel for therespondents.11.The Hon'ble Supreme Court in the decision in Mahesh Guptaand Others Vs. Yashwant Kumar Ahirwar and Others (2007 (8) SCC 621)held that the States were obligated to make reservations for thephysically disabled persons in terms of Act 1 of 1996 (Central). Inpara 14, the Supreme Court has held as under:"14...the Persons with Disabilities (EqualOpportunities, Protection of Rights and FullParticipation) Act, 1995 (for short "the 1995 Act") had https://hcservices.ecourts.gov.in/hcservices/ come into force. In terms of the 1995 Act, the States wereobligated to make reservations for handicapped persons.The State completely lost sight of its commitment bothunder its own policy decision as also the statutoryprovision."Similar issue was considered by the Division Bench of this Courtinsofar as appointment of lecturers in Government Colleges inR.Parthiban Vs. State of Tamil Nadu (2010 (4) MLJ 499).12.On 07.07.2010, the Supreme Court in S.L.P.(C) No.14889 of2009 (Government of India through Secretary and Another Vs. RaviPrakash Gupta and Another) considered the identical issue. In thesaid judgment, the handicapped person who suffers from 100%blindness appeared for Civil Services examination conducted by UnionPublic Service Commission in the year 2006. After passingpreliminary examination and final examination, he was called for apersonality test and he was placed in Sl. No.5 in the merit listprepared for visually handicapped candidates. Though there were morethan five vacancies available in the visually handicapped category,only one post was offered under the said category on the ground thatother posts were not identified by the Union of India. The saidcandidate approached the Central Administrative Tribunal and hisclaim having been rejected, he approached the Delhi High Court,which allowed the writ petition and gave a direction to give postingto the petitioner therein, taking note of the mandatory nature ofthe 3% reservation as provided under Section 33 of the Act. A pleawas raised by the Union of India in the S.L.P. stating thatimplementation of the provisions of Section 33 of the Act would beonly after identification of posts suitable for such appointmentunder Section 32. It is held that "to accept such a submission wouldamount to accepting a situation where the provisions of Section 33of the aforesaid Act could be deferred indefinitely by bureaucratic.inaction. Such a stand taken by the petitioners before the HighCourt was rightly rejected". It is also held that the identificationof Grade 'A' and 'B' posts in the I.A.S. was undertaken after theyear 2005 cannot also to be accepted as neither Section 32 norSection 33 makes any distinction with regard to Grade 'A', 'B', 'C'and 'D' posts. They only speak of identification and reservation ofposts for people with disabilities, though the proviso to Section 33does empower the appropriate Government to exempt any establishmentfrom the provisions of the said Section, having regard to the typeof work carried on in any department or establishment. No suchexemption has been pleaded or brought to the notice of the SupremeCourt and the Supreme Court held that the said contention isunsustainable. Thus the plea raised by the respondents is rejectedand the respondents are bound to implement 3% reservation tophysically disabled persons in all posts- Group 'A', 'B', 'C' or https://hcservices.ecourts.gov.in/hcservices/ 'D'.13.In the light of the said judgment of the Supreme Court, thestand taken by the respondents in the counter affidavit cannot besustained. The respondents cannot now rely on proviso to Rule 22 ofTamil Nadu State and Subordinate Service Rules as the said rule isdeclared as ultravires by the Division Bench of this Court inW.P.Nos.21078 and 21079 of 2004 dated 11.03.2008 as it is contraryto statutory provisions of Act 1 of 1996. The petitioner'sapplication submitted under General category having been rejected onthe ground of not signing the application and the said decisionhaving been upheld by the Supreme Court in a connected matter, I amunable to give any relief to the petitioner in respect of theselection already made. Further the selected persons have alreadyjoined and and they are not made as parties in this writ petition.However, it is made clear that the respondents shall implement 3%reservation to all the posts including Group 'A' and 'B' and for allfuture recruitments in terms of Section 33 of the Act. Therespondents are restrained from inviting applications for filling upthe posts without reserving 3% to physically disabled personshereafter.14.The writ petition is ordered accordingly. No costs.Consequently, connected miscellaneous petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmmiTo1.The Tamil Nadu Public Service Commission, Omandurar Government Estate, Anna Salai, Chennai – 2.2.The Secretary to Government, Health Department, Fort St. George, Chennai – 9.+1cc to M/s.AL.Ganthimathi, Advocate Sr 50280+1cc to Govt. Pleader Sr 50243BV(CO)km/16.7.W.P.No.1781 of 2006