The government's power to identify and reserve posts for persons with disabilities under Section 21 of the Equal Opportunities Act, and the obligation to review and update the list of reserved posts at regular intervals.

1. The Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 (For short Equal Opportunities Act) is a piece of legislation intended to provide equal opportunities, care, protec#31;tion, maintenance welfare, training and rehabilitation to differently-abled persons. One of the measures contemplated under the Equal Opportunities Act to achieve the objects of the Act, is to reserve vacancies in government service for such persons.

2. Petitioner is aggrieved that the Jammu and Kashmir Civil Service (Judicial) has been left out of purview of the Equal Opportunities Act and resultantly, the percentage of posts required to be reserved under the Equal Opportunities Act for differently-abled persons is not so reserved in case of the Jammu and Kashmir Civil Service (Judicial).

3. According to the petitioner, there is no reason for the respondents to deny benefit available to the differently-abled persons aspiring for the Jammu and Kashmir Civil Service (Judicial) and keep the service outside the purview of the Equal Opportunities Act. Though the writ petition was filed in the context of Advertisement Notice No. PSC/Ex-2001/64 dated 04.12.2001 and the posts adver#31;tised stand filled up, yet the issue raised in the petition survives and has not lost relevance by efflux of time.

4. The Equal Opportunities Act unlike Jammu and Kashmir Reservation Act, 2004 does not ipso facto apply to all the services under the Government. Section 21 empowers the Government to identify posts, in the establishments which can be reserved for the persons with disabilities. The Government is required to review, revise and up-date such list after regular intervals not exceeding three years. It would be profitable to reproduce Ss. 21 and 22 hereunder;

"21. Identification of posts which can be reserved for persons with disabil#31;ities The Government shall :-

(a) identify posts, in the establishments which can be reserved for the persons with disabilities;

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the development in technology.

22. Reservation of posts

The Government shall appoint in every establishment such percentage of vacancies not has than three percent, for persons or class of persons with disabilities of which one percent, each shall be reserved for persons suffer#31;ing from:-

(i) blindness or low vision;

(ii) hearing impairment;

(ii) locomotor disability or cerebral palsy, in the posts identified for each disabilities:

Provided that the Government may, having regard to the type of work carried on in any department 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."

5. The Government obviously has to look into all the aspects like the nature of duty performed by member of service, the challenges of work place, occupational hazards and like factors, while taking a decision whether a post in an establishment can be reserved for a person with disabilities. There may be posts that, because of occupational hazards involved, cannot be reserved for differently-abled person, as such, person because of the disability, he is suffering from, may be exposed to bodily injury, if asked to man such post. The Government, therefore, has to make an enquiry regarding the type of disability that may qualify for reservation against the post in an establishment. The disability in terms of Section 22 of the Equal Oppor#31;tunities Act may be categorized as; (i) blindness or low vision; (ii) hearing impair#31;ment; (iii) locomotor disability or cerebral palsy. A person with a particular type of disability may without any inconvenience man a particular post but may not be in a position to man a different post because of the duties attached to such post. Therefore, while identifying the post, whi