IMPORTANT POINT
As the respondent University is duty bound to fill up 3% of its vacancies in the post of Sweeper cum Cleaner from 07.02.1996 under the 1995 Act and 4% vacancies under the RPWD Act 2016, there would be sufficient number of vacancies to accommodate the petitioners as against the 1% vacancies available for direct recruitment. The question of creating any supernumerary posts will not arise as it is the statutory responsibility of the University to fill up vacancies in accordance with the provisions contained in 1995 Act and also under the 2016 Act.

JUDGMENT :

The petitioners, who are differently abled persons, are included in Ext.P3 rank list for appointment to the post of Sweeper cum Cleaner. 4 candidates with locomotor disability and one candidate with hearing impairment are included in Ext.P3 rank list, who are found eligible for special reservation, as per G.O.(P) No.8/17/S.J.D dated 06.05.2017 and the list is published as an addendum to the rank list Ext.P2 published on 28.12.2018. These rank lists are published on the basis of a notification issued by the University on 30.12.2008, based on which a short list was published on 11.02.2011.

2. It is stated that on account of a series of litigation the appointments could not be made. In the meanwhile the appointments of non-teaching staff in the Universities in the State were brought under the purview of PSC. However no selection is so far made for the post of Sweeper cum Cleaner by PSC. Petitioners claim that all of them are entitled to be appointed, as the University has never filled any vacancies from among the differently abled candidates except one candidate from Ext.P2 list with hearing impairment.

3. According to the University, appointments from Ext.P2 and P3 rank lists were made against 43 vacancies which arose after 01.01.2008. Out of the 43 turn no.1 and 34 were set apart for differently abled candidates. Vacancy at turn no.1 could not be filled up in the absence of blind/low vision candidates. Vacancy at 34 was filled up by appointing the candidate with hearing impairment from Ext.P3 list. One vacancy is kept unfilled based on the interim order passed in W.P.(C) No.3811/2019, filed by another candidate included in Ext.P3 list. According to the University, if at all any backlog vacancies are to be filled up from differently abled candidates that can be only after conducting a special recruitment and University cannot make any appointment against backlog vacancies from Exts.P2 or P3 lists, as per the Government Orders in force. It is stated that University has already addressed the Government in Ext.R1(b) letter dated 05.09.2019 requesting to permit it to appoint the candidates in Ext.P3 list against vacancies which arose between 2004 to 2007, by creating supernumerary posts and seeking permission for filling up the vacancy earmarked for a particular category of disability by passing over to the next category of disability in the event of non-availability of the particular category. But the Government did not give any reply. It is stated that the turn of those like petitioners with locomotor disability comes at 67th vacancy. Therefore it is stated that petitioners are not entitled to be appointed from Ext.P3 list.

4. On a query from this court the learned Standing Counsel fairly submitted that no appointment was made from differently abled candidates in any of the previous selections. That means the entire backlog vacancies from 07.02.1996 against the 3% quota admissible to them are to be filled up. The contention of the University that Government Orders stand in the way of filling up backlog vacancies cannot be correct, when petitioners have produced Ext.P6 circular issued by Government by which direction is issued to the Universities also to take steps to fill up the vacancies for differently abled.

5. Section 33 of the Persons with Disabilities (Equal Opportunities and Full Participation) Act, 1995 and Section 34 of the Right of Persons with Disabilities Act, 2016, mandate the appointment of differently abled candidates against 3% of the vacancies from 07.02.1996 and 4% vacancies from 19.04.2017, in establishments including the respondent University.

6. In the light of the law laid down in the judgments of the Apex Court in Govt. of India v. Ravi Prakash Gupta,(2010) 7 SCC 626, Union of India v. National Federation of the Blind, 2013) 10 SCC 772, Justice Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383, Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153, Justice Sunanda Bhandare Foundation v.