Strict adherence to reservation rules and the government's responsibility to identify and fill backlog vacancies for differently abled persons.

1. In both the writ petitions the petitioners have challenged the notification dated 11.06.2003 issued by the Tamilnadu Public Service Commission to fill up the post of Assistant Surgeon (General / Specialities) in Tamilnadu Medical services and quash note (iii) as illegal, incompetent, irregular and Unconstitutional and consequently prayed for a direction to the 1st respondent to provide for a minimum of 3% reservation for physically disabled as per Sec. 33 of Act 1 of 1996.

2. According to the petitioners, though Section 33 of Person with Disabilities (Equal Opportunities, Protection of rights and full participation) Act 1995, Act 1 of 1996, provides that the Government should reserve 3% posts for physically handicapped persons in educational institutions and establishments, reservation has not been provided for filling up of the post of Assistant Surgeon (General / Specialities) and therefore it is contrary to the statute and in support of his contentions, he has also placed reliance on a decision of this Court in TMN Deepak Vs. State of Tamilnadu rep. by its Chief Secretary and 4 others, reported in 2011 (2) CTC 353, where a positive direction has been made directing 3% reservation in all Government and aided educational institutions.

3. It is also pointed out by the petitioners that on an earlier occasion, when the Tamilnadu Public Service Commission by their notification dated 03.03.1998 for the post of Assistant Surgeon (General) in Tamilnadu Medical Service, invited applications to fill up 250 vacancies for direct recruitment to the above said posts, 3% reservation was provided to the differently abled persons from among the communal categories, for whom a separate reservation is provided under rule 22 of Tamilnadu State and Subordinate Services and whereas, in the impugned notification dated 11.06.2003 inviting applications to fill up 504 vacancies of Assistant Surgeon (General / Specialities) in Tamilnadu Medical Services, the Tamilnadu Public Service Commission has not provided 3% reservation for differently abled persons.

4. According to the petitioners, the action of the Tamilnadu Public Service Commission is not in consonance with the object sought to be achieved under the Person with Disabilities (Equal Opportunities, Protection of rights and full participation) Act 1995, Act 1 of 1996. As there was a failure on the part of the respondents in implementing the mandate of the statute, the petitioners have prayed to set aside the notification. It is also their further contention that the post of Assistant Surgeon (General / Specialities) in Tamilnadu Medical Service, has not been exempted by the Government under the above said Act and therefore, the notification is arbitrary and violative of Article 14, 16, 19(1) (g), 41 and 311 of the Constitution of India.

5. Placing reliance on a Division Bench decision of this Court stated supra, Mr.K.Sridhar, learned counsel for the writ petitioner in W.P.No.14312 of 2007 has submitted that even in the year 2000, the Government have issued orders in G.O.Ms.No.105 dated 20.06.2000 providing 3% reservation in the vacancies and that the respondents have failed to give an opportunity to differently abled persons, thus violating Article 14 of the Constitution of India.

6. According to him, had the respondents provided 3% reservation in the post of Assistant Surgeon (General / Specialities) in Tamilnadu Medical Services, as done in the earlier notification dated 03.03.1998, the petitioners would have had an opportunity to secure employment. As the notification is contrary to statutory provision and earlier the Government Orders, he has prayed to quash the same.

7. To sustain the notification, the Deputy Secretary, Tamilnadu Public Service Commission, Chennai, in his counter affidavit submitted that notifications are being issued calling for applications for direct recruitment based on statutory provisions read with orders issued by the Government of Tamilnadu (vide Rules 2