Hyderabad HC Permits Blind Advocate To Take Judicial Service Exam pending his Writ Petition

Dear Colleagues,

Please refer to my earlier posts titled "Can a Blind /Visually Impaired Person work as a Judge / Magistrate ?"  dated 01 Jun 2009, "Want to become Judge? An ideal opportunity for VH law graduates in Delhi" dated 29 Oct 2009, "First Blind Judge in Korea shows how blind persons can function as Judge successfully" dt 14 May 2012 & "Blind can write exam to become Judge, rules Spain's General Council of Judiciary"  dt 21 Jul 2014.

This time, Mr. Arepalli Naga Babu, a visually-challenged IDIA scholar from Machilipatnam in Andhra Pradesh, has yet again strengthened the well-known belief that the only disability in life is lack of will and fortitude. Acting on his petition, the Hyderabad High Court has directed the authorities to accept his application and permit him to write the Judicial Service Exam to be held on 27th of November 2016, which he was denied earlier. 

The court also directed that he be allowed to take the examination in a separate room with the assistance of a scribe and be granted 20 minutes extra for every hour to compensate for the disability. A division bench comprising Chief Justice Ramesh Ranganathan and Justice A. Shankar Narayana affirmed that he cannot be denied participation in the selection process under the open category merely on account of his handicap (blindness) and stated that ‘there does not appear to be any prohibition in the Andhra Pradesh State Judicial Service Rules 2007 prohibiting visually-challenged candidates from participating in the selection process for appointment to the posts in the AP State Judicial Service’. 

Naga Babu, a law graduate from National Law University, Odisha, and a practising advocate of the high court, said the exam notification issued for the Andhra Pradesh and Telangana Judicial Services Exam confined the benefit of reservation only to the orthopedically handicapped and excluded the visually impaired persons. He stated that after he applied for the exam, he was informed that his application would be rejected as he was not entitled to write the exam and is neither eligible for reservation as per the rules.

Read more at: http://www.livelaw.in/hyderabad-hc-permits-visually-challenged-idia-scholar-naga-babu-take-judicial-service-exam/

SC directs TN govt to keep a Judge slot for visually impaired candidate

Keep judge slot for 70% blind lawyer, SC tells Tamil Nadu govt

A Subramani, TNN | Jul 18, 2015, 05.54PM IST

CHENNAI: A CBI prosecutor suffering 70% blindness is close to realizing his dream of becoming a judicial magistrate, as the Supreme Court has directed Tamil Nadu government to keep one post of civil judge vacant for him.

An interim order to this effect was passed by a bench of Justice V Gopala Gowda and Justice S A Bobde on July 10.

Though V Surendra Mohan, 29, of Thiruvotriyur in Chennai got through written examination his name was not shortlisted for viva voce. He filed a writ petition for inclusion in the interview list. As an interim order, the court allowed him to take part in the interview and the result was kept in a sealed envelope. When it was opened after a later order, it was revealed that Surendra Mohan had secured 178 marks out of 400 in written examination, and 38.25 marks out of 60 in viva voce. To a court query, Tamil Nadu Public Service Commission said he was well within the zone of consideration and appointment for a civil judge post.

However, he was not considered for appointment since he suffered more than 50% visual disability, whereas a proposed amendment to rules limited the disability between 40% and 50% for eligible candidates.

On June 5, the high court upheld his exclusion saying, "Taking into account the nature of duties to be performed by the civil judge, the government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40% to 50%."

Surendra Mohan took the case to the Supreme Court saying the high court "wholly erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995."

The judgment proceeds to reject the petitioner's claim without either an executive order or an amendment coming into force, he said, adding, "without the law having been changed, there was no basis for the judgment at all."

Reiterating that there is no way he could be excluded from the selection process, he said a GO dated April 11, 2005 clearly notified that PB (partially blind) persons are eligible for civil judge post. "The petitioner, who has 70% partial blindness, cannot in any way be excluded from the recruitment, he said, adding that the high court judgment overlooked the overwhelming discrimination in the system against the disabled, and in an egregious step it excludes the only fully eligible blind man."

Source: Times of India

Visually Impaired Public Prosecutor denied Magistrate post despite clearing Test, approaches SC

Please refer to my earlier post  titled "Committee of Judges decide a VH can not be a Judge in Tamil Nadu" dated 08 June 2015. The said candidate who is already working as a public prosecutor and denied elevation as a magistrate on flimsy grounds of disability, has finally approached the Supreme Court of India. The issue has been covered by Times of India succinctly below:

A 70% blind person rejected for magistrate post despite being selected approach SC
A Subramani,TNN | Jul 6, 2015, 01.06 AM IST

CHENNAI: Perhaps emboldened by the success of significant number of differently-abled people cracking the civil services examination on Saturday, and the case of Beno, the first 100% visually disabled person to be absorbed in IFS, a 70% blind person rejected for magistrate post despite being selected, is now knocking at the Supreme Court doors.

V Surendra Mohan of Tiruvottriyu, who is an assistant public prosecutor of the CBI at present, cracked magistrate selection test, but was denied appointment by the Tamil Nadu Public Service Commission saying persons with more than 40% visual disability, could not be considered for magistrate's post. When challenged, Madras high court on June 5 upheld the rejection saying: "Taking into account the nature of duties to be performed by a civil judge, government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40 per cent to 50 per cent."

The 'proposed amendment', does not deprive the benefit of reservation, but only restricts it to those whose percentage of disability is below 50%,' the high court reasoned.

Questioning the conclusion, Surendra Mohan filed a special leave petition in the Supreme Court framing a volley of question of law. He said the high court had erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Wondering whether the high court could proceed on the basis of a "proposed amendment" while ignoring the law as it stood, the SLP says when there is no other blind candidate available for any of the posts sanctioned, is it legal or equitable at all for the authorities to have relied on an internal correspondence between the government and the high court to ensure that no blind individual was accommodated.

Noting that with 70% blindness, he has been discharging his duties as an assistant public prosecutor, he said there is no legal basis for excluding him from the civil judge post. In a series of recruitment drives over the years, the posts reserved for the blind have gone abegging, Surendra Mohan said, adding: "This year as well, as a result of the illegal action of the authorities, no blind candidate has been recruited, reflecting a complete apathy on their part in discharging obligations placed on them by the Constitution and the laws."

According to an April 11, 2005 government order, for civil judge posts PB (partially blind) persons are eligible, the SLP said. A GO dated August 31, 2012 excludes only those with "complete blindness", and hence with 70% partial blindness he cannot in any way be excluded from the recruitment, Surendra Mohan has said.

Source: Times of India

Committee of Judges decide a VH can not be a Judge in Tamil Nadu

What can be more sad than this case wherein the judiciary has decided among themselves and advised the State Government that Visually impaired can not be function as a Judge! We have had many progressive judgements from Chennai High Court, but this one is pretty unreasonable. I am hopeful, this is challenged before the double bench soon.

Here is this story from Tamil Nadu appearing in Times of India.

Partial blindness shatters man’s judge dreams
A Subramani,TNN | Jun 8, 2015, 01.06 AM IST


CHENNAI: A person suffering from 70% blindness has failed to secure the post of a civil judge despite clearing the written examination and viva voce, as the Madras high court ruled that visual disability of more than the maximum permissible limit of 50% cannot be allowed for civil judges.

Dismissing the writ petition of the aspirant V Surendra Mohan, Justice V Ramasubramanian said, "Taking into account the nature of duties to be performed by the civil judge, the government, in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40-50%. If a person has not less than 40% blindness, he becomes eligible for the benefit of reservation. This fundamental and essential feature of the reservation is not taken away by the proposed amendment. The proposed amendment, while not depriving the benefit of reservation to those who come within the definition of the expression 'person with disability', restricts it to those whose percentage of disability, is 50% less. This cannot be termed as nullifying the effect of the statute."

Surendra Mohan, a partially blind person with the percentage of disability at 70%, applied for civil judge post, and passed the written examination. Since he was not included in the list of candidates short-listed for viva voce, he filed the present writ petition for inclusion in the interview list.

The court first allowed him to participate in the interview and said the result would be kept in a sealed envelope. But later it passed orders in favour of declaring the result, in purview of a different case. Surendra Mohan secured 178 marks out of 400 in written examination, and 38.25 marks out of 60 in viva voce, it was revealed.

A difficulty arose because a government order dated August 8, 2014, had made it clear that the benefit of reservation for the physically challenged is available only to those blind and deaf candidates whose percentage of disability is 40-50%.

S Vijay Narayan, senior counsel for Surendra Mohan, then assailed the provision saying it sought to dilute the benefits available to disabled people. Rejecting the submissions, Justice Ramasubramanian further said it was too late to challenge the selection, because, "a person, who participates in a process of selection, cannot later turn around and question the prescription contained in the very notification for recruitment."

http://timesofindia.indiatimes.com/city/chennai/Partial-blindness-shatters-mans-judge-dreams/articleshow/47578609.cms

A blind candidates wins legal battle to become a judge in Spain

Please refer to my earlier blog entry dated 01st June 2009  titled Can a Blind / Visually Impaired Person work as a Judge / Magistrate ? This was subsequently also posted on 06 June 2009, more than 5 years ago at Changemakers.com titled How can a blind / visually impaired person work as a Judge?

Delighted to learn that after a protracted battle, the Spanish Court has ruled in the favour of a visually impaired law graduate Mr. Pérez Castellanos’ restoring his equal right to become a Judge like his fellow law graduates.

An online petition on Change.org collected more than 100,000 signatures in support of Pérez Castellanos’ legal struggle.

Here is the news published in The Local:

Blind man wins battle to become judge

Published: 14 May 2014 11:49 GMT+02:00

Spanish legal authorities have ruled in favour of a blind 23-year-old law graduate who called for people with his disability to be allowed to become judges.

“Can a blind person like me carry out the work duties of a magistrate?” was the question sent by Gabriel Pérez Castellanos to the official body days after completing his Law degree in July 2013.

Ten months on and several adjournments later, Pérez Castellanos finally got the response he was hoping for.

Spain’s General Council of the Judiciary ruled unanimously on Tuesday that blind people can access state entrance exams to qualify as judges even though their job responsibilities may have to be adapted to suitable cases.

According to the report, evidence used in court that "can only be assessed with one’s eyesight" is limited and "not enough to completely rule out blind people from a career in the judiciary".

"I'm very happy, of course," the young man told The Local.

Having scored 7.9 in his Law degree (equivalent to a First Class Honours degree in the UK), Pérez Castellanos is now completing a Master’s degree at Garrigues, Spain's biggest law firm.

"The plan is to focus on labour law," he said of his future plans.

And while the budding lawyer admitted it would be more difficult for a blind  person to be a judge — as would be the case for many professions — he thought none of the challenges were insurmountable. 

"The main task of judges is to make decisions based on their knowledge of the law," he said.

Pérez Castellanos told the Local doesn't view himself as a spokespeson for blind people but admits he had been amazed, and delighted, by the repsonse to his situation. 

Online petition website Change.org collected more than 100,000 signatures in support of Pérez Castellanos' legal struggle.

Brazil, France, Peru and the UK already employ blind judges as stipulated in the UN's Convention on the Rights of Persons with Disabilities. 

Source: The Local

Not providing reservation for disabled in Higher Judicial Service amounts to Discrimination - rules Delhi HC

A Division bench of Delhi High Court presided by Justice S. Ravindra Bhat and Justice R.V. Easwar observed that arbitrary denial of 3% reservation for persons with disabilities in terms of The Persons with Disabilities Act 1995,  would amount to discrimination.

Writing judgement in this case titled Nishant S. Diwan Versus High Court of Delhi, W.P.(C) 983/2014 on 25th March 2014, the bench observed that the Disabilities Act made it mandatory for all government organisations to reserve at least 3 per cent vacancies for the disabled and that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment process for the Delhi Higher Judicial Services was “arbitrary and discriminatory”.

The bench also struck down the argument that a five-judge committee on 09.03.2007, made no recommendation in respect of DHJS while making recommendation about the DJS (comprising of civil judges and magistrates only) saying that the Committee had considered the proposal in the background of whether to provide for reservations in DJS and there was no explicit reference to DHJS.

Click here to access the Supreme Court Judgement in Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

The court has also directed the establishment to carry out a review of the remaining number of vacancies in the DHJS that can be “appropriately earmarked for those with disabilities according to the total number of sanctioned posts”, following which it could recruit the appropriate number of persons in the next round of recruitment.

The court has directed the administration to carry out a “special recruitment procedure” for only the earmarked vacancies falling to the share of those entitled to be considered under the 3 per cent quota under the Disabilities Act, within a year of the date of declaration of results in the current recruitment process.

DHJS refers to appellate courts, which exercise appellate authority over the lowest level of judiciary. Direct recruitment to DHJS is done through an examination held by the High Court Establishment (HCE).

The HCE had issued an advertisement for recruitment to 14 posts in December last year, setting aside four seats for SC/ST candidates and 10 for general category. The examination for these seats is scheduled to be held on April 6.

The order was given on a plea filed by an advocate who is a person with locomotor disability, who had alleged that non-inclusion of disability quota in the DHJS recruitment was “contrary to the express provisions of the Disabilities Act”.

Advocate Nishant S Diwan, who has been practicing as an advocate since 1998, had also argued that the HCE was “under a duty to set-apart appropriate number of posts having regard to the total cadre strength of 224 posts in DHJS”.

The HCE had taken the decision that the disability quota would not apply to the DHJS recruitments and would only apply to the magistrates and civil Judges, since the notification issued by the Ministry of Social Justice and Empowerment had mentioned only “magistrates of the subordinate judiciary”. The HCE had also taken the plea that since the examination was scheduled for April 6, imposition of any quota at this late stage would “upset the entire timeline and delay the recruitment process”.

The court held that “there can be no difference for reservation under the Disabilities Act” between the DJS and the DHJS since the DHJS officers perform duties and functions similar to those in DJS.

The court directed the administration to set aside one of the 14 posts for persons eligible under the disability quota, but has directed that the seat should be kept vacant and should be clubbed with the next round of recruitment.

Since as per the Supreme Court judgement in UOI Versus National Federation of Blind, it is clarified that the section 33 is independent of Section 32 for making reservation, the Hon'ble Court should have also passed directions to calculate the backlog of the total vacancies since 01 Jan 1996 and not reserving one seat in the present recruitment process.

Also the list of identified posts makes a mention that posts with different nomenclature but with similar functions out to be reserved. Also since posts of DHJS are also promotional posts for the lower judiciary, these can not remain beyond the purview of reservation  in both direct recruitment as well as promotional reservation envisaged by the judgement of the Hon'ble Supreme Court ibid.

Download the Judgements:

• W.P.(C) 983/2014 Nishant S. Diwan Versus High Court of Delhi pronounced by Delhi High Court on 25 March 2014.
• Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

AP High Court questions its own Registrar General on rejecting Blind lawyer for the post of Judge!

Dear Friends,

Another good news. This time from Guntur district of Andhra Pradesh. A blind lawyer R Varahalaswami applied for posts of civil judge but faced rejection on the grounds of disability at the hands of Registrar General of AP High Court.

When challenged in the High Court, he gets a favourable order. The High Court even asked the petitioner to challenge the Recruitment Rules of the AP High Court! (Asked to challenge its own rules!!!!)

Another success after Tamilnadu! I am longing to see such a success in Delhi Judiciary Examination soon. Mind you, Delhi High Court has already amended its rules to accommodate the quota of Persons with Disabilities and reserved posts too some 3-4 years back. But till date no successful entry!!

regards

Subhash Chandra Vashishth

Here is the latest story from Times of India :

HYDERABAD: The AP High Court, on Thursday, accorded permission to a blind man for appearing for a screening test for the post of civil judge and also write the relevant written examination with the help of an assistant.

R Varahalaswami, a 28-year-old visually challenged advocate from Guntur applied for the post of a civil judge in June when the HC notified the posts for filling them up through a screening test and interview.

The judicial authorities rejected his application on June 16 saying that he has hundred per cent blindness and hence cannot be considered for this post. Swami approached the High Court challenging the rejection of his application. B Venkateswarlu, counsel for the petitioner arguing before a division bench comprising Justice Ghulam Mohammed and Justice Vilas V Afzulpurkar, contended that the proceedings of the Registrar General of the High Court were contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1955.

He said that the Act provides for 3 per cent reservations for persons with disability in every establishment of which one per cent should be reserved for persons suffering from blindness or low vision.

He maintained that the Registrar General in his notification issued for the recruitment of civil judges did not prescribe any disqualification to the 100 per cent visually challenged applicants.

The counsel told the court that the Madras High Court has appointed a totally blind person as a Munsif and he was also given posting as third additional district munsif at Coimbatore on June 1, 2009.

The bench directed the Registrar General to allow the petitioner to attend to the screening test scheduled to be held on July 5 and provide an assistant to guide the petitioner during the test. It also told the petitioner to challenge the recruitment rules of the AP High Court in this regard.