Chakradhari Sharan Singh, J.—This matter has been taken up for hearing online because of COVID-19 pandemic restrictions.

2. Sub-Section 1 of Section 34 of the Rights of Persons with Disabilities Act, 2016 (in short Act) obligates every appropriate Government within the meaning of Section 2(b) of the Act to appoint in every Government establishment, not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, 1% each shall be reserved for persons with benchmark disabilities under Clauses (a), (b) and (c) and 1% for persons with benchmark disabilities under Clauses (d) and (e). The nature of disabilities in Clauses (a) to (e), as referred to in Sub- Section 34, are as under:—

“(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.”

3. Sub-Section (2) of Section 34 of the Act further mandates that in case in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also, suitable person with benchmark disability is not available, it may first, be filled by interchange among the five categories, as noted above, and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy for appointment of a person, other than a person with disability.

The Proviso to Sub-Section (2) of Section 34 reads that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. A plain reading of Sub-Section (1) and Sub-Section (2) of Section 34 of the Act leaves no room for doubt that the provisions are mandatory. This is also for the reason that Sub-Section (3) of Section 34 uses the word ‘may’ and thus enables the appropriate Government to provide for such relaxation of upper age limit for employment of benchmark disability, as it thinks fit. The use of expression ‘shall’ in Sub-Section 1 and Sub- Section (2) of Section 34 of the Act read with clear language of the said provisions, clearly indicates the legislative intent that the said provisions are unambiguous and are mandatory in nature.

The State Government of Bihar had issued a resolution dated 12.10.2017 published in Bihar Gazette on 13.10.2017 in relation to providing reservation in appointment in the State Government services and in admission in educational institutions under the provisions of the Act. Sub Clause (IX) of Clause (2) of which provided that where in any recruitment year any vacancy cannot be filled up because of non-availability of suitable person with disability or for any other reasons, it shall be filled by interchange among the 4 categories and if there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointme