{"id":148628,"date":"2011-03-03T00:00:00","date_gmt":"2011-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-suresh-vs-the-secretary-on-3-march-2011"},"modified":"2014-10-24T19:37:47","modified_gmt":"2014-10-24T14:07:47","slug":"m-suresh-vs-the-secretary-on-3-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-suresh-vs-the-secretary-on-3-march-2011","title":{"rendered":"M.Suresh vs The Secretary on 3 March, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Suresh vs The Secretary on 3 March, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 03\/03\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR\nAND\nTHE HONOURABLE MR.JUSTICE R.SUBBIAH\n\nW.P.(MD).No.2166 of 2010\nand\nW.P.(MD).No.3220 of 2010\n\nM.Suresh \t.. Petitioner  in W.P.(MD).No.2166 of 2010\nA.Ramesh Babu \t.. Petitioner  in W.P.(MD).No.3220 of 2010\n\t\t\t\nVs.\n\n1.The Secretary\n   Tamil Nadu Public Service Commission,\n   Chennai.\t.. 1st and 3rd  respondents in both W.Ps.\n\n2.The Tamil Nadu Government\n   rep by its Secretary,\n   Law Department,\n   Fort St., George,\n   Chennai-9.\t.. 2nd respondent in both W.Ps.\n\n3.The Registrar General,\n   High Court of Madras,\n   High Court, Madras,\n   Chennai.\t\t.. 3rd respondent in W.P.No.3220 of 2010\n\n4.In the High Court of Judicature\n  At Madras Rep by the Registrar,\n  Madras High Court,\n  Chennai -104.   \t .. 1st respondent in Respondent\n\t\t\t\t\tW.P.No.\n\nPRAYER in W.P.(MD)No.2166 of 2010\n\nWrit Petition is filed under Article 226 of\nthe Constitution of India praying to issue a Writ of Mandamus directing the\nrespondents to operate the Reserve list for the 4 vacancies meant for the\nphysically handicapped candidates carried forward in the post of Civil Judge\n(Junior Division) in Tamilnadu State Judicial Service and give appointment to\nthe petitioner to the said post as he is at S.No.2 under SC (General) Category\nas evidenced from the memorandum No.5718\/OTD-C1\/2006 of the 3rd respondent dated\n3.11.2008 with effect from the date of appointment given to all other selected\ncandidates with all monetary and service benefits.\n\nPRAYER in W.P.(MD)No.3220 of 2010\n\nWrit Petition is filed under Article 226 of\nthe Constitution of India praying to issue a Writ of Certiorarified Mandamus\ncalling the impugned orders  in memorandum No.5718\/OTD-C1\/2006 dated 03.11.2008\non the file of the first respondent and to quash the same so far as listing the\npetitioner in the reversed list instead of merit list, among the reserve\ncategory of Scheduled Caste candidates and consequently directing the\nrespondents to give appointments to the petitioner as Civil Judge (Junior\nDivision) in accordance with the reservation policy in the reserved category of\nScheduled Caste.\n\n!For Petitioner\t\t... Mr.R.Singaravelan for\n(in W.P.No.2166 of 2010)    Mr.M.Siddharthan\nFor Petitioner\t\t... Mr.R.Appavu Rethinam\n(in W.P.No.3220 of 2010)\n^For  Respondent 1 and 3... Mr.G.Prabhu Rajadurai\n(in both W.Ps.)\nFor 2nd Respondent  \t... R.Janakiramulu\t\t\n(in both W.Ps.)\t\t    Special Government Pleader.\n\n:COMMON ORDER\n\nN.PAUL VASANTHAKUMAR, J & R.SUBBIAH,J.\n<\/pre>\n
\tThe petitioners in both the writ petitions are the candidates appeared for
\nthe written examination and also viva voce for selection to the post of Civil
\nJudge (Junior Division) in the Tamilnadu State Judicial Service. Since they have
\nnot been selected to the post of Civil Judge (Junior Division) post, they have
\nfiled the present writ petitions praying for direction to the respondents to
\noperate the reserve list for the four vacancies meant for the physically
\nhandicapped candidates, carried forward in the post of Civil Judge (Junior
\nDivision) in the Tamilnadu State Judicial Service and give appointment to the
\npetitioners .\n<\/p>\n
\t2.Since the issue involved in both the writ petitions are one and the
\nsame, these writ petitions are disposed of by way of this common order.\n<\/p>\n
\t3.Brief facts which are necessary to decide the issue involved in these
\nwrit petitions are as follows:\n<\/p>\n
\ta)The petitioners herein had applied for appointment to the post of Civil
\nJudge (Junior Division) in Tamilnadu State Judicial Service for the year 2004-
\n2008 in response to the advertisement inviting the applications from the
\neligible candidates notified in Advertisement No.164, dated 10.05.2008 and
\nsubsequent notifications No.165 and 166. As per notifications totally 201 posts
\nwere notified by the Government and applications were called for. The
\npetitioners herein applied and appeared in the written examination as well as
\nfor viva voce test. The petitioners are coming under the reserve category viz.,
\nScheduled Caste. The cut off mark fixed for the SC (General) is 220 and for SC
\n(women) was 195.\n<\/p>\n
\tb)When the selection list was published on 03.11.2008, the name of the
\nwrit petitioner (M.Suresh) in W.P.No.2166 of 2010 was included in the reserve
\nlist against the SC (General) category in second place. So far as the writ
\npetitioner in W.P.No.3220 of 2010 is concerned, his name was included  in the SC
\n(General) at third place. On the application filed under the Right to
\nInformation Act, 2005, the petitioner M.Suresh came to know that only 195
\ncandidates were selected for the post of Civil Judge (Junior Division) as
\nagainst 201 vacancies, for which the selection was conducted. Further, he was
\ninformed that the selection was finalised for 201+2 vacancies. 8 vacancies have
\nnot  been filled up as they are meant for 4 ST and 4 Physically handicapped
\ncandidates and as the candidates under the above categories are not available,
\nthose vacancies have been duly carried forward to the next recruitment. Thus, 8
\nvacancies are left unfilled due to want of candidates as stated supra.\n<\/p>\n
\tc)It is the further case of the petitioners that as per the reservation
\nRule 18% is required for the SC candidates  and 36 persons in SC category should
\nbe appointed among 201 posts for the Civil Judge (Junior Division) and only 32
\npersons were selected and appointed under the SC reserved category and further 4
\npersons should be given appointment under the ST reserved category as per the
\nreservation policy. Hence, the petitioners have come forward with the present
\nwrit petitions for the relief set out earlier.\n<\/p>\n
\td)In the counter affidavit filed by the first respondent, the Tamil Nadu
\nPublic Service Commission, it has been stated that initially 201 vacancies were
\nnotified and subsequently it was revised as 203 (including 2 ST carried forward
\nvacancies). While finalising the selection four ST candidates (including 2
\ncarried forward vacancies and four vacancies for physically handicapped
\nvacancies namely GT-General PH Blind-1, BC-(OCM)(W) PH Deaf-1, MBC\/DC-General PH
\nDeaf-1 and SC-General PH Blind-1, could not be filled up due to non availability
\nof such candidates and the vacancies were carried forward as per the rules.
\nHence, 195 vacancies alone were filled up and other 8 vacancies (including 4
\nvacancies reserved for PH candidates) have been carried forward to the next
\nrecruitment. It is further stated that  according to the orders issued in
\nG.O.Ms.No.200 SW and NMP Department, dated 22.12.2006, the vacancies reserved to
\nbe filled up by the PH candidates have to be carried forward to the next
\nrecruitment in case of non availability of physically handicapped candidates for
\nselection.\n<\/p>\n
\t4.Learned counsel for the petitioners submitted that  200 point roster was
\napplied in the selection to the said posts as per Sections 33 and 36 of the
\nPersons with Disabilities (Equal Opportunities, Protection of Rights and Full
\nParticipation) Act, 1995 (hereinafter referred to as ‘the Act’). The reservation
\nfor physically handicapped candidates has to be made at not less than 3%. since
\nas per 200 point roster, 6 posts have to be  granted to Physically handicapped
\npersons. In the instant case, GT-General PH, SCH-1 and Blind-1 and Ortho-1 were
\nselected under the physically handicapped category. Though four other persons
\nare also  physically handicapped persons Ortho category, they have been given
\nappointment under the GT category based on marks which ultimately resulted in
\ncarrying forward four vacancies  of physically handicapped  category to the next
\nrecruitment. The said carried forward made is in terms of Section 36 of the Act.\n<\/p>\n
\t5.It is further submitted by the learned counsels for the petitioners that
\nthe respondents committed an error by giving appointment to the physically
\nhandicapped ortho category under the GT category, when they ought to have been
\nadjusted under the physically handicapped category. Under such circumstances,
\nthe question of carrying forward the post does not arise and if the carry
\nforward is held as illegal, the petitioners will get a chance of getting the
\nsaid post if the reserve list is directed to be operated.\n<\/p>\n
\t6.Per contra, learned counsel for the respondents submitted that under
\nSection 33 of the Act, not less than three per cent of posts shall be reserved
\nfor persons or class of persons with disability, of which one per cent each
\nshall be reserved for persons suffering from (i)blindness or low vision;\n<\/p>\n
(ii)hearing impairment; (iii)locomotor disability or cerebral palsy, in the
\nposts identified for each disability.  Since the candidates are not available
\nunder each category, no infirmity could be found in carrying forward the four
\nvacancies under the category of physically handicapped. The learned counsels
\nalso submitted that Rule 10 of the Tamil Nadu State Judicial Service (Cadre &
\nRecruitment) Rules, 2007 (hereinafter referred to as “the Rules”) provides for
\nreservation of appointments.\n<\/p>\n
\t7.By way of reply, learned counsel appearing for the petitioners submitted
\nthat the reservation for physically handicapped persons is a horizontal
\nreservation and hence the carry forward vacancy will not apply. In support of
\nhis contentions, the learned counsel for the petitioners relied upon the
\nfollowing judgments:\n<\/p>\n
\t“i)In Rajesh Kumar Daria Vs. Rajastahn Public Service Commission and
\nothers reported in 2007 (8) SCC 785\n<\/p>\n
\tii)In Jitendra Kumar Singh and another Vs.State of Uttar Pradesh and
\nothers reported in (2010) 3 SCC 119\n<\/p>\n
\tiii)In Government of India through Secretary  and another Vs.Ravi Prakash
\nGupta and another reported in (2010) 7 SCC 626 and\n<\/p>\n
\tiv)In Syed Bashir-ud-din Qadri and Nazir Ahmed Shah and others reported in
\n(2010) 3 SCC 603″.\n<\/p>\n
\t8.We have considered the respective submissions made by the learned
\ncounsel appearing on either side and perused the materials available on record.\n<\/p>\n
\t9.From the submissions made by the learned counsel for the respective
\nparties, the question that arises for consideration in these writ petitions is
\nwhether the carry forward of four vacancies meant for physically handicapped
\npersons for the next recruitment on the ground of non availability of candidates
\nin the present selection, is correct or not?\n<\/p>\n
\t10.For deciding the said question, it is appropriate to extract Sections
\n33 and 36 of the Disabilities (Equal Opportunities, Protection of Rights and
\nFull Participation) Act, 1995 and Rule 10 of the Rules, 2007 which are as
\nfollows:\n<\/p>\n
\t“Section 33. Reservation of posts:Every appropriate Government shall
\nappoint in every establishment such percentage of vacancies not less than three
\nper cent, for persons or class of persons with disability of which one per cent
\neach shall be reserved for person suffering from\n<\/p>\n
\t(i)blindness or low vision;\n<\/p>\n
\t(ii)hearing impairment;\n<\/p>\n
\t(iii)locomotor disability or cerebral palsy, in the posts identified for
\neach disability:\n<\/p>\n
\tProvided that the appropriate Government, may having regard to the type of
\nwork carried on in any department or establishment, by notification subject to
\nsuch conditions, if any, as may be specified in such notification, exempt any
\nestablishment from the provisions of this section.\n<\/p>\n
\t36.Vacancies not filled up to be carried forward:- Where in any
\nrecruitment year any vacancy under Section 33, cannot be filled up due to non
\navailability of a suitable person with disability or, for any other sufficient
\nreason, such vacancy shall be carried forward in the succeeding recruitment year
\nand if in the succeeding recruitment year also suitable person with disability
\nis not available, it may first be filled by interchange among the three
\ncategories and only when there is no person with disability available for the
\npost in that year, the employer shall fill up the vacancy by appointment of a
\nperson, other than a person with disability:\n<\/p>\n
\tProvided that if the nature of vacancies in an establishment is such that
\na given category of person cannot be employed, the vacancies may be interchanged
\namong the three categories with the prior approval of the appropriate
\nGovernment”\n<\/p>\n
Rule 10 of Tamil Nadu State Judicial Service (Cadre & Recruitment), Rules 2007
\n\t“10.Reservation of appointments: Rules 21(b) and 22 of the General Rules
\nfor the Tamil Nadu State and Subordinate Service relating to reservation of
\nappointment shall apply to the selection for appointment to the posts of
\nDistrict Judge and Civil Judge (Junior Division) by direct recruitment.
\n\t(2)Candidates with the following disabilities, namely,
\nblind\/deaf\/orthopaedically handicapped can seek for recruitment for the post of
\nCivil Junior (Junior Division).\n<\/p>\n
\t(i)3 per cent of the vacancies in the post of Civil Judge (Junior
\nDivision) in direct recruitment has to be filled by physically handicapped,
\nnamely, blind\/deaf\/orthopaedically handicapped. In the event of only one
\nvacancy, the rule of reservation shall not apply.\n<\/p>\n
\tProvided the candidates must produce a certificate from the Medical Board
\nto the effect that the disability will not affect the performance of the job,
\nnamely, Civil Judge (Junior Division) before appointment.”\n<\/p>\n
\t11.On perusal of Section 33 of the Act, it is evident that 3% of posts
\nshall be reserved for physically handicapped persons. Further three categories
\nmentioned therein should be identified for appointment to the said posts. Rule
\n10 of the above quoted Rule also mandates filling up of 3 categories of
\nphysically handicapped persons. In the instant case, one blind and one
\northopaedically handicapped candidate alone were appointed under the physically
\nhandicapped category. Out of 6 vacancies earmarked for physically handicapped
\ncandidates, since 2 candidates each are not available under three categories
\nfour posts were carried forward by the respondents in terms of Section 36 of the
\nAct. The object of the Act is to provide equal opportunities and protection of
\nrights and full participation to physically handicapped persons. If the posts
\nare not carried forward due to non- availability of categories of persons, there
\nwould be statutory violation of Central Act 1 of 1996, which is a special
\nenactment. The respondents herein having identified the posts and reserved 6
\nposts of 2 each in blind or low vision, hearing impairment and locomotive
\ndisability they alone are bound to be selected. It is the case of the
\nrespondents that four candidates in those categories are not available and
\ntherefore, four posts were carried forward and it can be filled up with
\ncandidates not having disability only if candidates are not available in the
\nsubsequent selection in terms of Section 36. The Supreme Court in the decision
\nreported in 2010 (5) SC 616 (Ramesh Gajendra Jadhav vs.Secretary, Late
\nS.G.S.P.Mandal and others) held that vacancies in reserved categories cannot be
\nconverted to other category unless the rules permit.\n<\/p>\n
\t12.In the judgment  reported in (2010) 7 SCC 626  (Government of India
\nthrough Secretary  and another Vs.Ravi Prakash Gupta and another), the Supreme
\nCourt considered a similar issue and held as follows:
\n\t“28.For the sake of reference, Sections 32 and 33 of the Disabilities Act,
\n1995 are reproduced hereinbelow:\n<\/p>\n
“32. Identification of posts which can be reserved for persons with
\ndisabilities.-Appropriate Governments shall-\n<\/p>\n
(a) identify posts, in the establishments, which can be reserved for the persons
\nwith disability;\n<\/p>\n
(b) at periodical intervals not exceeding three years, review the list of posts
\nidentified and update the list taking into consideration the developments in
\ntechnology.\n<\/p>\n
\t33. Reservation of posts.-Every appropriate Government shall appoint in
\nevery establishment such percentage of vacancies not less than three per cent
\nfor persons or class of persons with disability of which one per cent each shall
\nbe reserved for persons suffering from-\n<\/p>\n
(i) blindness or low vision;\n<\/p>\n
(ii) hearing impairment;\n<\/p>\n
(iii)locomotor disability or cerebral palsy,
\nin the posts identified for each disability:\n<\/p>\n
Provided that the appropriate Government may, having regard to the type of work
\ncarried on in any department or establishment, by notification subject to such
\nconditions, if any, as may be specified in such notification, exempt any
\nestablishment from the provisions of this section.”\n<\/p>\n
\t29.While it cannot be denied that unless posts are identified for the
\npurposes of Section 33 of the aforesaid Act, no appointments from the reserved
\ncategories contained therein can be made, and that to such extent the provisions
\nof Section 33 are dependent on Section 32 of the Act, as submitted by the
\nlearned ASG, but the extent of such dependence would be for the purpose of
\nmaking appointments and not for the purpose of making reservation. In other
\nwords, reservation under Section 33 of the Act is not dependent on
\nidentification, as urged on behalf of the Union of India, though a duty has been
\ncast upon the appropriate Government to make appointments in the number of posts
\nreserved for the three categories mentioned in Section 33 of the Act in respect
\nof persons suffering from the disabilities spelt out therein. In fact, a
\nsituation has also been noticed where on account of non-availability of
\ncandidates some of the reserved posts could remain vacant in a given year. For
\nmeeting such eventualities, provision was made to carry forward such vacancies
\nfor two years after which they would lapse. Since in the instant case such a
\nsituation did not arise and posts were not reserved under Section 33 of the
\nDisabilities Act, 1995, the question of carrying forward of vacancies or lapse
\nthereof, does not arise”.\n<\/p>\n
\t13.Thus the respondents are bound to comply with not only Sections 33 and
\n36 of the Act 1 of 1996 but also Rule 10 of the Rules, while filling up 203
\nposts. This court cannot give a direction contrary to Sections 33 and 36 of the
\nAct and Rule 10 of the Rules.\tIt is to be further noted that in the counter
\naffidavit filed by the first respondent in July 2010, it is stated that out of 8
\nposts available for physically handicapped persons, including 2 carried forward
\nvacancies the following categories, are not filled up:\n<\/p>\n
\tGT General     PH Blind\t\t\t1\n\tBC-(OCM)(W)    PH Deaf\t\t\t1\n\tMBC\/DC-General PH Deaf\t\t\t1\n\tSC General\tPH Blind\t\t1\t\n<\/pre>\n
As per the above data which is not disputed by the petitioners one vacancy in
\nS.C.General PH Blind is not filled up. Even if the said vacancy is allowed to be
\nfilled up the petitioners will not get their chance as they are  placed in the
\nreserve list at 2 and 3. Thus, the petitioners are not eligible to get
\nappointment even if the said carried forward vacancies are allowed to be filled
\nup with candidates without disability.\n<\/p>\n
\t14.The decisions relied on by the learned counsel for the petitioners have
\nno application to the facts of these cases as the provisions of Sections 33 and
\n36 of the Act were not considered in any one of the cited judgments. If the
\nposts are not carried forward due to non availability of the candidates in the
\nrespective category, it will ultimately defeat the object of the Act and Rule\n<\/p>\n
10. Hence, we are not inclined to accept the submissions made by the learned
\ncounsel for the petitioners that the carry forward of four posts is not correct.\n<\/p>\n
\t15.In view of the above findings, we do not find any merits in the writ
\npetitions and the writ petitions are dismissed. No costs. Consequently,
\nconnected miscellaneous petitions are closed.\n<\/p>\n
sms<\/p>\n
To<\/p>\n
1.The Secretary
\n   Tamil Nadu Public Service Commission,
\n   Chennai.\n<\/p>\n
2.The Tamil Nadu Government
\n   rep by its Secretary,
\n   Law Department,
\n   Fort St., George,
\n   Chennai-9.\n<\/p>\n
3.The Registrar General,
\n   High Court of Madras,
\n   High Court, Madras,
\n   Chennai.\n<\/p>\n
4.In the High Court of Judicature
\n  At Madras Rep by the Registrar,
\n  Madras High Court,
\n  Chennai -104.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Suresh vs The Secretary on 3 March, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03\/03\/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD).No.2166 of 2010 and W.P.(MD).No.3220 of 2010 M.Suresh .. Petitioner in W.P.(MD).No.2166 of 2010 A.Ramesh Babu .. Petitioner in W.P.(MD).No.3220 of 2010 Vs. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-148628","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Suresh vs The Secretary on 3 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-suresh-vs-the-secretary-on-3-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Suresh vs The Secretary on 3 March, 2011 - 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