Sanjay K. Agrawal, J.

1. Stellar issue that has cropped up for consideration is whether Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 and the proviso appended thereto with regard to making reservation for persons with disability, is mandatory in nature.

2. The petitioner is a doctor holding degree of B.A.M.S. and a differently abled person. He applied to be considered for the post of Ayurved Chikitsa Adhikari on an advertisement issued on 28-5-2008 against nine posts of unreserved physically handicapped category. He was allowed to appear in the written examination and also he was allowed to appear in the interview, but when the final result was announced, his name did not figure in the final select list and later-on he was informed that on account of his hearing impairment, he was found ineligible for the post of Ayurved Chikitsa Adhikari and, therefore, he is not entitled to be considered for the said post.

3. Feeling aggrieved and dissatisfied with the action of respondents No. 1 & 2, the petitioner herein filed this writ petition stating inter alia that the quota having been earmarked against unreserved handicapped person, he is entitled to be considered, as there is no notification issued under the proviso to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (for short 'the Act of 1995') by the appropriate Government exempting the recruiting authority from making reservation for persons suffering from hearing impairment, therefore, the action of respondents No. 1 & 2 declaring him ineligible and disqualified be quashed.

4. The respondent PSC has filed return stating inter alia that the State Government has issued a circular on 21-12-2009 authorizing the particular Department to pass an order under Sections 32 & 33 of the Act of 1955 and in exercise of that circular, the Department of Health and Family Welfare in its memo dated 23-10-2007 had sent a requisition to the PSC in which the category of disability has been provided which includes that person with hearing impairment and disability of senses will not be eligible. Therefore, the PSC is bound by the said requisition/class mentioned by the State Government as such, the petitioner has rightly been held to be disqualified from being considered on the post of Ayurved Chikitsa Adhikari.

5. The State has adopted the return filed by the PSC.

6. Respondents No. 3 to 11 have not filed any return.

7. Mr. Amrito Das, learned counsel appearing for the petitioner, would submit that by virtue of Section33 of the Act of 1995, every "appropriate Government" has to make reservation for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy and post has to be identified for each disability. He would further submit that in accordance with the proviso to Section 33 of the Act of 1995, a notification has to be issued by the appropriate Government exempting any establishment from complying with the proviso to Section 33, having regard to the type of work carried on in the department or establishment and that must be by a notification duly published in the Official Gazette. In the present case, no such notification has been issued by the appropriate Government/State Government exempting the present recruitment from complying with the provisions of Section 33 of the Act of 1995 and, therefore, the action of respondents No. 1 & 2 is highly arbitrary and inappropriate and is liable to be quashed.

8. Mr. Avinash Singh, learned Panel Lawyer appearing for the State/respondent No. 2, would submit that the State Government has issued order dated 21-12-2009 in which the State Government has authorized particular department seeking selection on particular post to pass order under Sections 32 &33 of the Act of 1995, and in exercise of that authorization, the Department of Health and Family Welfare in its