Madras High Court
Tmt.R.Yogasundari vs The Government Of Tamil Nadu on 7 September, 2022
W.P.No.2127 of 20197.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.No.2127 of 2019
and WMP No.2380 of2019
Tmt.R.Yogasundari ... Petitioner
vs.
1.The Government of Tamil Nadu,
Rep by its Secretary to Government,
Education Department,
Fort St.George,
Chennai-9.
2. The Chairman,
Teachers Recruitment Board,
College Road,
Chennai-6
3. The Director of School Education,
College Road,
Chennai-6 ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India
for writ of Certiorarified Mandamus to call for the entire records connected
with the impugned Tentative Provisional List for Direct Recruitment of
Special Teacher for the year 2012-2016, concerning Music Subject, dated
Nil and the consequential order of non-selection of the petitioner, dated Nil
1/10
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W.P.No.2127 of 20197.
published in the 2nd respondent Website on 12.10.2018 and quash the same
insofar as the petitioner is concerned and consequently direct the
respondents 2 and 3 to select and appoint the petitioner as Music Teacher
for Direct Recruitment of Special Teacher for the year 2012-2016 under
PWD and PSTM quota.
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mr.R.Neelakandan
Addl.Advocate General
assisted by
Mr.C.Kathiravan
Government Advocate
For R.2
Mr.T.Arun Kumar
AGP
R.1 and R.3
ORDER
The writ petition has been filed challenging the tentative selection list
for Direct Recruitment of Special Teacher for the year 2012-2016,
concerning Music Subject and the consequential order of non-selection of
the petitioner, published in the 2nd respondent Website on 12.10.2018.
2. The petitioner is a differently abled person suffering with 100%
blindness. She hails from Backward Class Community and she is holding
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W.P.No.2127 of 20197.
master degree in music and she pursued all courses in Tamil Medium.
3. The second respondent issued Notification notifying recruitment
for Special Teachers including Music Subject. According to the petitioner,
she is qualified and eligible to be appointed as Music Teacher. She applied
for the said post under PWD (Person with Disability) and PST,(Person
Studied under Tamil Medium) quota.
4. The petitioner participated in the written examination with the help
of Scribe. The petitioner secured 72 marks out of 95 marks. The petitioner
was called for certificate verification. On 13.08.2018, the petitioner attended
for certificate verification and produced all the documents concerning her
educational qualification, disability and PSTM. However, under the
tentative selection list, her name has been left out. Under such
circumstances, she has filed the present writ petition.
5. A counter affidavit and an additional counter affidavit have been
filed by the respondents, wherein, they deny the allegations of the petitioner.
Primarily, they would contend that as per the Recruitment of Special
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W.P.No.2127 of 20197.
Teacher 2012-2016, the roster point starts from Rotation 1 and turn 42 to
118. Based on the Gazette Notification No.247 dated 26.07.2017, the
following two turns will fall during this interval:
Rotation Turn Category Remarks
1. 71 General Turn (Women) Vacancy reserved for Category II
(Deaf and Hard Hearing)
1 97 Backward Class(Other than Vacancy reserved for Category IV
BCM) (Autism)
6. According to the respondents,since there was no candidate for the
above mentioned categories, it remained unfilled due to non-availability of
suitable person with benchmark disability and the vacancies were carried
forward to the subsequent recruitment year. This was done by following
Section 3(bbb) of the Tamil Nadu Government Servants (Condition of
Service) Act, 2016 (Act 30 of 2017). According to the respondents, the
petitioner has secured 77 marks and she belongs to BC Category. According
to them, the minimum eligible cut-off mark under PSTM category is BC(T)
is 80 and BC(W)(T) is 79. Under BC category the minimum eligible marks
for BC is 78 and BC (W) is 81. As the petitioner has secured only 77 marks,
she does not come under the zone of consideration and therefore, she could
not be selected.
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W.P.No.2127 of 20197.
7. Heard Mr.S.N.Ravichandran, learned counsel for the petitioner and
Mr.R.Neelakandan, learned Additional Advocate General for the second
respondent and Mr.T.Arun Kumar, learned Additional Government Pleader
for the respondents 1 and 3.
8. Learned counsel for the petitioner would rely upon a judgment of
the Division Bench of this Court dated 30.10.2009 passed in W.P.No.3858
of 2008 in the case of R.Parthiban vs The State of Tamil Nadu and
another and would submit that in an identical matter, wherein also, the
petitioner in WP No.3858 of 2008 had sought for reservation under the
person with disability quota, the Division Bench held that there shall be
travesty of justice if the posts were kept vacant under the handicapped
quota.
9. Learned counsel for the petitioner would submit that in the above
referred decision, the impugned order, rejecting the quota for the persons
with disability, was quashed and the writ petition was allowed and the
petitioner therein was appointed to the post of Lecturer in Physics under the
handicapped reservation..
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W.P.No.2127 of 20197.
10. Learned counsel for the petitioner drew the attention of this Court
to the impugned selection list and would submit that persons with disability
have not been appointed. He would also submit that under Section 34 of
Persons with Disabilities Act, 2016, “ Every appropriate Government shall
appoint in every Government establishment, not less than four percent 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
percent, each shall be reserved for persons with benchmark disabilities
under clauses (a), (b) and (c) and one percent for persons with benchmark
disabilities under clauses (d) and (e)." Since the petitioner falls under
clause (a) of 34(1) of Persons with Disabilities Act, 2016, he ought to have
been selected.
11. Per contra, learned Additional Advocate General, appearing for
the second respondent would submit that the decision rendered by the
learned counsel for the petitioner has no applicability for the facts of the
instance case. He would rely upon the proviso to Section 34(2) of the Act
and would submit that if the nature of vacancies in a department is such that
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W.P.No.2127 of 20197.
a given category of person cannot be employed, the vacancies may be
interchanged among the categories with the prior approval of the
Government.
12. According to him, rightly the petitioner's name has not been
included in the selection list. Further, he would contend that the category,
under which the petitioner has sought for selection, has already been
exhausted in the earlier round of recruitment and a candidate has already
been appointed.
13. After giving due consideration to the respective submissions and
being a physically challenged person (total blindness) and in order to give
an opportunity to the petitioner to raise all her contentions that have been
raised in this writ petition, this Court is of the considered view that the first
respondent will have to consider the petitioner's representation afresh and
pass orders on merits and in accordance with law, under physically
handicapped quota after affording a fair hearing to the petitioner including
granting her the right of personal hearing. The petitioner is directed to give
a fresh representation seeking for her inclusion in the selection list as a
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W.P.No.2127 of 20197.
Music Teacher with the first respondent within a period of one week from
the date of receipt of a copy of this order.
14. For the foregoing reasons, this Court directs the petitioner to
submit a fresh representation to the first respondent, seeking for inclusion of
her name in the selection list as a Music Teacher within a period of one
week from the date of receipt of a copy of this order. On receipt of such a
representation, the first respondent, after considering the noble objects of
the Disabilities Act, shall consider the case of the petitioner sympathetically
and pass final orders on merits and in accordance with law within a period
of four months thereafter, after affording a fair hearing to the petitioner
including granting her the right of personal hearing.
With the aforesaid direction, the writ petition is disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
07.09.2022
sr
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking orders
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W.P.No.2127 of 20197.
To
1.The Government of Tamil Nadu,
Rep by its Secretary to Government,
Education Department,
Fort St.George,
Chennai-9.
2. The Chairman,
Teachers Recruitment Board,
College Road,
Chennai-6
3. The Director of School Education,
College Road,
Chennai-6
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W.P.No.2127 of 20197.
ABDUL QUDDHOSE, J.
sr
W.P.No.2127 of 2019
07.09.2022
https://www.mhc.tn.gov.in/judis
