VALMIKI J.MEHTA,J - (1.)BY this writ petition, petitioner seeks directions from this Court for quashing of the appointment made of the respondent no.2 - Ms. Sharmila Rathee, an orthopedically handicapped candidate, as Lecturer/Assistant Professor to the post for the Department of Bachelor of Elementary Education in the respondent no.1/Institute of Home Economics. Before me, four grounds are urged on behalf of the petitioner for quashing of the appointment of the respondent no.2. First ground which is urged is in terms of Sections 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short ,,the Act) by contending that respondent no.1 could not have appointed to the post reserved for Visually Handicapped (VH) person an Orthopedically Handicapped person. It is argued that interchange of category is not permissible as per Section 36 of the Act except from the third year whereas interchange has been done in the first year itself. The second argument which is urged is that once the action of respondent no.1 is legally incorrect, i.e the respondent no.1 could not have legally appointed the respondent no.2 in violation of Sections 33 and 36, any delay in filing of the writ petition cannot prejudice the petitioner and the appointment of the respondent no.2 has to be declared illegal and quashed. The third argument which is urged before me on behalf of the petitioner is that respondent no.1 by the impugned advertisement wrongly restricted the requirement of 55% marks at the Masters level for the subjects only of Social Science and Language for VH persons although the VH persons were sought to be appointed in the separate education stream which is a specialized subject, and for which stream the petitioner has the necessary qualification because petitioner has an M.Ed degree with more than 55% marks from a recognized institute. The fourth argument which is urged on behalf of the petitioner is that once the petitioner has M.Phil qualification, there is no requirement for the petitioner to have 55% marks at the degree level.
(2.)FOR the purpose of appreciation of the arguments urged on behalf of the petitioner, it is necessary at this stage to reproduce and refer to Sections 33 and 36 of the Act and which read as under: -
"33.Reservation of posts. -Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent, each shall be reserved for persons suffering from - (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any departmental or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 36. Vacancies not filled up to be carried forward -Where in any recruitment year any vacancy under section 33, cannot be filled up due to non -availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."

The first two arguments which are urged on behalf of the petitioner can be taken together and are accordingly being decided together.

(3.)A reading of the aforesaid sections of the Act together does show that there are three separate categories of handicapped persons as per Section 33 and as per Section 36 so far as the first year is concerned, if the handicapped person of a particular category is not available, then the vacancy has to be carried forward for the next year. Section 36 then provides that in the second year (and not in the third year as argued by the petitioner) if the specific handicapped/disabled person under a particular category under Section 33 is not available, then another disabled/handicapped person of a different category as stated in Section 33 can always be accommodated in the post in question. In any case, this I am only stating to complete the narration for the purpose of decision because the issue in the present case will not turn on whether it is in the second year or in the third year(as argued by the petitioner) that interchanging can be done because in the present case it could not be disputed before me on behalf of respondent no.1 that the interchange was done in the very first year itself, however, the interchange for a VH person to an orthopedically handicapped person is sought to be justified on the ground that there were many posts which were available and since in spite of repeated endeavours posts could not be filled in of the handicapped persons, thus, respondent no.1 appointed respondent no.2/orthopedically handicapped person against the post advertised for a visually handicapped person.