Badar Durrez Ahmed, J.

1. These writ petitions concern the Delhi Judicial Service Examination 2010. The High Court of Delhi (Respondent No.1) had issued a notification dated 26.10.2009 with regard to the holding of the Delhi Judicial Service Examination in respect of 60 vacancies. 27 vacancies were for the General category, 14 vacancies were for the Scheduled Caste category, 14 were for the Scheduled Tribes category and 5 vacancies were reserved for the physically handicapped persons (blind / low vision). It may be pointed out at this stage itself that out of these five vacancies, which were reserved for physically handicapped persons, one vacancy was carried forward and advertised for the fifth time, one vacancy was carried forward and advertised for the third time, two vacancies were carried forward and advertised for the second time and one vacancy was advertised for the first time.

2. The main controversy is with regard to the manner in which the five vacancies for the physically handicapped persons are to be filled. The petitioners in these writ petitions are all persons belonging to the General category. In the final result that was declared for the said DJS Examination 2010, the petitioner No.1 in WP(C) 997/2011, was placed at S.No.30 in the order of merit. Similarly, the petitioner No.2 in that writ petition was at S.No.31 and the petitioner No.3 was at S.No.34. The petitioner in WP(C) No.3251/2010, namely, Deepti, had, in fact, not even qualified in the preliminary examination and was at No.4 after the candidates who had made the cut-off for the main examination. However, by an interim order dated 31.05.2010 in CM No. 6484/2010 in WP(C) 3251/2010, the said Deepti was permitted to appear for the main examination, subject to the final outcome of the writ petition. Deepti has been placed at S.No.32 after the final merit list was taken out. The case of the petitioners is essentially that the seats reserved for the physically handicapped persons cannot be carried forward without a time-cap. According to them, Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 (hereinafter referred to as ‘the said Act’) contemplates the carrying forward of a vacancy reserved for the physically handicapped person for only one year. Section 36 of the said Act reads as under:-

“36. Vacancies not filled up to be carried forward.—

Whereas 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 vancancy 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 can not be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.”

3. It has been contended that the provision is mandatory, in the sense that it uses the word “shall” when it directs that if, even after carrying forward of a vacancy to the succeeding recruitment year, no suitable person with disability is available even by interchange among the three categories (blind or low vision; hearing impairment; locomotor disability or cerebral palsy), then the employer is mandated to fill up the vacancy by appointment of a person other than a person with disability. The emphasis is on the phrase “the employer shall fill up”. According to the learned counsel for the petitioners, the use of the word “shall” clearly implies that a duty has been cast upon the employer to fill up the