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
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