Dr KK Aggarwal & Advocate Ira Gupta
In the matter titled as “V. Surender Mohan versus State of Tamil Nadu & Others, Civil Appeal No. 83 of 2019” the Hon’ble Supreme Court vide judgement dated 22.01.2019 has held that 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 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.
Judgment of the Court
39. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate 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 39 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 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 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 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 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:-
“7. That in so far as the area of discharge of functions and duties of the judicial officers viz., Civil Judges is concerned this involves performances of strenuous duties:- they have to read documents, pleadings and ascertain facts and issues; monitor proceedings to ensure that all applicable rules and procedures are strictly followed without any violation; advise advocates, litigants and Court personnel regarding conduct, issues, and proceedings; participate in judicial proceedings to help in resolving disputes; preside over hearings and hear allegations made by plaintiffs and defendants to determine whether the evidence supports the charges or the averments made; write decisions on cases independently after 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, to perform any of these functions at all. All these apart, he/she has to perform duties such as conducting inquiries, recording dying declarations, going through identification parades, record statements of victims, conduct in-camera proceedings, passing orders on remand and extension and other administrative functions. In so far as District judges are concerned, apart from performing their usual judicial duties, they have to perform a myriad administrative duties also. Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications. Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post.”
41. The reasons as given above by the respondent No.3 fully 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 42 extent of 40%-50% for recruitment for the post of Civil Judge (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.
Calculation of percentage of handicap in deaf person
“Person with disability” means a person suffering from not less than 40% of any disability as certified by the medical authority.
Degree of handicap: The average pure tone hearing level in the 3 speech frequencies 500, 1000 and 2000Hz is calculated. If this average is ‘X’, then 25 is deducted from it e.g. X-25. This value is multiplied by 1.5.
[Average of 3 speech frequencies – 25] × 1.5.
Similarly, the percentage of hearing impairment is calculated for the other ear.
The total hearing handicap of a person is then calculated as follows: [(Better ear % × 5) + (Worse ear %)] ÷ 6.
(Source: Otolaryngology Online Journal, Volume 5 Issue 1 2015. http://www.jorl.net/otolaryngology/hearing-in-india-all-aspects.pdf)
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA