Madras High Court
State Of Tamil Nadu vs V.Karthikeyan on 27 September, 2021
Writ Appeal No.1812 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Writ Appeal No.1812 of 2021
1. State of Tamil Nadu,
rep. by its Secretary,
School Education Department,
Fort St. George.
Chennai 600 009.
2. The Director of School Education,
DPI Complex,
College Road, Nungambakkam,
Chennai 600 006.
3. The Chief Educational Officer,
Cuddalore District,
Cuddalore.
4. The District Educational Officer,
Virudhachalam,
Cuddalore District. ... Appellants
vs.
V.Karthikeyan ... Respondent
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 28.10.2020 passed by this Court in W.P.No.13072 of 2019.
Page No.1 of 12
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Writ Appeal No.1812 of 2021
For Appellants : Mr.K.V.Sajeev Kumar,
Government Advocate
For Respondent : Mr.Balan Haridass
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
This Writ Appeal is directed against the order dated 28.10.2020 passed
by the learned Single Judge in W.P.No.13072 of 2019.
2. The Writ Petitioner is the Respondent herein. The case of the
Writ Petitioner is that, he is a physically challenged person with 70%
disability. He belongs to Most Backward Community. He had applied for
consideration of his candidature in response to the Notification issued on
22.04.2015, inviting Applications for recruitment to the post of Lab Assistant
in Government Schools in the State of Tamilnadu. Out of the total number of
invited vacancies, 3% was earmarked for candidates with disability. The
Writ Petitioner secured 92 marks out of 150 in the written examination and
was awarded 13 marks out of 17 marks in the certificate assessment.
3. It is further stated by the Writ Petitioner that, the total number of
Lab Assistant posts invited was 166 and out of the said vacancies, 3% of the
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Writ Appeal No.1812 of 2021
same works out to 4.8. In the said circumstances, 5 posts were earmarked for
persons with disability. It is the case of the Writ Petitioner that, in the
selection, he was overlooked and two other persons were accommodated in
the disability category, though vacancies were available in the earmarked
posts.
4. In the counter Affidavit filed in the Writ Petition, it was stated by
the Government that, overall 5 posts were reserved for disabled persons and
out of the same, 3 posts were reserved for visually impaired, hearing
impaired and speech impaired and only 2 posts were reserved for physically
challenged persons. The 2 posts reserved for physically challenged persons
had been filled up by two candidates who had secured more marks than the
Writ Petitioner. However, the Writ Petitioner is the next person to be posted
in the reserved category meant for physically challenged persons.
5. It was brought to the notice of the learned Single Judge that, one
selected candidate viz. Kavitha, who secured more marks than the Writ
Petitioner, did not choose to join, and that, the vacancy earmarked under the
quota 'physically challenged' was available as on that date. Hence, finding
that, there is no legal impediment in appointing the Writ Petitioner in the
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Writ Appeal No.1812 of 2021
existing vacancy, the learned Single Judge allowed the Writ Petition with a
direction to the Respondents to grant appointment to the Writ Petitioner as
Lab Assistant in the existing vacancy earmarked for physically challenged
persons and grant consequential posting order to him.
6. Learned Government Advocate appearing for the Appellants
vehemently contended that, the learned Single Judge ought to have
considered the aspect that, the posts reserved for Blind, Deaf and Dumb
candidates cannot be filled up by other physically challenged candidates like
that of the Respondent/Writ Petitioner.
7. To substantiate his stand, learned Government Advocate drew the
attention of this Court to Sections 33 and 36 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995 (in short '1995 Act') and Sections 33 and 34 of the Rights of Persons
with Disabilities Act, 2016 (in short '2016 Act'). For better appreciation, said
provisions are extracted hereunder:
Sections 33 and 36 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and
Full Participation) Act, 1955:
33. Reservation of posts:- Every appropriate
Government shall appoint in every establishment such
percentage of vacancies not less than three per cent
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Writ Appeal No.1812 of 2021
for persons or class of persons with disability of
which one per cent. Each shall be reserved for
persons suffering from.
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability:
Provided that the appropriate Government
may, having regard to the type of work carried on in
any department or establishment, by notification
subject to such conditions, if any, as may be specified
in such notification, exempt any establishment from
the provisions of this section.
36. Vacancies not filled up to be carried
forward:- Where in any recruitment year any
vacancy under section 33 cannot be filled up due to
non-availability of a suitable person with disability or,
for any other sufficient reason, such vacancy shall be
carried forward in the succeeding recruitment year
and if in the succeeding recruitment year also suitable
person with disability is not available, it may first be
filled by interchange among the three categories and
only when there is no person with disability available
for the post in that year, the employer shall fill up the
vacancy by appointment of a person, other than a
person with disability:
Provided that if the nature of vacancies in an
establishment is such that a given category of person
cannot be employed, the vacancies may be
interchanged among the three categories with the
prior approval of the appropriate Government.
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Writ Appeal No.1812 of 2021
Sections 33 and 34 of the Rights of Persons with
Disabilities Act, 2016:
33. Identification of posts for reservation:-
The appropriate Government shall ...
(i) identify posts in the establishments which
can be held by respective category of persons with
benchmark disabilities in respect of the vacancies
reserved in accordance with the provisions of section
34;
(ii) constitute an expert committee with
representation of persons with benchmark disabilities
for identification of such posts; and
(iii) undertake periodic review of the identified
posts at an interval not exceeding three years.
34. Reservation:- (1) Every appropriate
Government shall appoint in every Government
establishment, not less than four per cent of the total
number of vacancies in the cadre strength in each
group of posts meant to be filled with persons with
benchmark disabilities of which, one per cent each
shall be reserved for persons with benchmark
disabilities under clauses (a), (b) and (c) and one per
cent for persons with benchmark disabilities under
clauses (d) and (e), namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral
palsy, leprosy cured, dwarfism, acid attack victims and
muscular dystrophy;
(d) autism, intellectual disability, specific
learning disability and mental illness;
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Writ Appeal No.1812 of 2021
(e) multiple disabilities from amongst persons
under clauses (a) to (d) including deaf-blindness in the
posts identified for each disabilities:
Provided that the reservation in promotion shall
be in accordance with such instructions as are issued
by the appropriate Government from time to time:
Provided further that the appropriate
Government, in consultation with the Chief
Commissioner or the State Commissioner, as the case
may be, may having regard to the type of work carried
out in any Government establishment, by notification
and subject to such conditions, if any, as may be
specified in such notifications exempt any
Government establishment from the provisions of this
section.
(2) Where in any recruitment year any vacancy
cannot be filled up due to non-availability of a suitable
person with benchmark disability or for any other
sufficient reasons, such vacancy shall be carried
forward in the succeeding recruitment year and if in
the succeeding recruitment year also suitable person
with benchmark disability is not available, it may first
be filled by interchange among the five categories and
only when there is no person with disability available
for the post in that year, the employer shall fill up the
vacancy by appointment of a person, other than a
person with disability:
Provided that if the nature of vacancies in an
establishment is such that a given category of person
cannot be employed, the vacancies may be
interchanged among the five categories with the prior
approval of the appropriate Government.
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Writ Appeal No.1812 of 2021
(3) The appropriate Government may, by
notification, provide for such relaxation of upper age
limit for employment of persons with benchmark
disability, as it thinks fit.
8. It is contended by the learned Government Advocate that, in the
case on hand, vacancies have been notified based on 1995 Act and not under
the 2016 Act. According to him, neither Section 36 of the 1995 Act nor
Section 34 of the 2016 Act will be applicable to the case of the Writ
Petitioner, as there are sufficient vacancies for the year in question and the
question of carrying forward the vacancies for the subsequent year does not
arise. He went on to contend that, candidates need to be appointed only
based on the reservation available for them, i.e. to say that, a person with
locomotor disability has to be appointed only under the said quota and he
cannot be appointed in any other quota, say, under 'visually impaired and
hearing impaired'. Since, a candidate has already been appointed under the
'physically challenged' quota, the Writ Petitioner is not eligible to be
appointed in the said vacancy.
9. Heard the learned counsel on either side and perused the material
documents available on record.
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Writ Appeal No.1812 of 2021
10. In the case on hand, the Writ Petitioner is a physically challenged
person. It is not in dispute that, there was an Advertisement for the post of
Lab Assistant with a reservation of 3% in terms of the Notification issued on
22.04.2015. It is also not in dispute that, in the overall 5 posts reserved for
disabled persons, 1% is reserved for visually impaired, hearing impaired and
locomotor disability, respectively. If more persons in the aforesaid category
are available, after filling up these categories at 1% for each category, extra
posts can be given to category no.(iii), if no candidates are available in
category nos.(i) and (ii) as per the 1995 Act.
11. As per 1995 Act, the total number of posts reserved by the
Government for persons with disability, is 3%, If 2016 Act is made
applicable, the reservation for disabled persons will be 4%. Thus, the total
number of vacancies as per Section 33 of the 1995 Act, which is only '5', will
be more than 6, if 2016 Act is applied.
12. As contended by the learned Government Advocate, the posts
reserved for Blind and Deaf candidates cannot be filled up by other
physically challenged candidates like that of the Respondent/Writ Petitioner.
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Writ Appeal No.1812 of 2021
Even though the Writ Petitioner is next in the line to be appointed under the
category 'locomotor disability', there is no provision to appoint him under the
other categories, i.e. visually impaired and hearing impaired.
13. When candidates are not available under a particular category,
vacancies have to be filled up in any other category depending upon the
eligibility of the candidates. Merely because, one percent is reserved for
'visually impaired', and there are more number of eligible candidates in that
category, it does not mean that, they cannot be appointed. If eligible
candidates are not available under the category 'locomotor disability' and if
there are vacancies in other categories, they should be considered for
appointment in the available vacancies, as per the Act.
14. In the case on hand, one candidate viz. Kavitha, who is physically
challenged has secured more marks than the Writ Petitioner. As she did not
choose to join, and that, her vacancy was available on that date, the Writ
Petitioner, who was placed next in the line, was considered for appointment
to the post of 'Lab Assistant', by the learned Single Judge.
15. Hence, we are of the view that the learned Single Judge was
right in interfering with the order impugned in the Writ Petition and granting
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the relief sought by the Writ Petitioner. Hence, finding no reasons to
interfere with the order of the learned Single Judge, this Writ Appeal is
dismissed. No costs. Consequently, connected C.M.P.No.11338 of 2021 is
closed.
[S.V.N.,J.] [A.A.N.,J.]
27.09.2021
Index : Yes/No
Speaking Order : Yes/No
(vm/aeb)
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Writ Appeal No.1812 of 2021
S.VAIDYANATHAN,J.
AND
A.A.NAKKIRAN,J.
(aeb)
Judgment in
W.A.No.1812 of 2021
27.09.2021
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