The central legal point established in the judgment is the mandatory nature of the reservation of posts for persons with disabilities under the Persons with Disabilities Act, particularly Section 33, and the obligation of the appropriate Government to consider such reservations in every establishment.

The petitioner has approached this Court seeking a direction upon the respondents for appointment on a Grade-IV post in Pakur district.

2. The brief facts of the case are that, the petitioner has been working as Jeep Driver on daily wages since 24.12.2004. Advertisement no. 1/2010 was issued for which the examination was held on 28.10.2012. The petitioner belongs to category BC-II. A panel was prepared on 16.11.2012 and it appears that one Md. Tanzim Alam who was selected in the category of BC-II declined offer of appointment. The petitioner who was put at serial no. 1 in the waiting list was expecting the offer of appointment, however, in place of petitioner, one Anil Kumar Yadav was appointed under the category BC-II and therefore, the petitioner has approached this Court.

3. A counter affidavit has been filed taking a plea that since all the posts have been filled up and pursuant to an order passed by this Court on 20.03.2012 in W.P.(S) No. 3169 of 2008, one Anil Kumar Yadav was appointed in the category BC-II, the petitioner could not be appointed though, it has been admitted that he was at serial no. 1 in the waiting list. It is stated in the counter-affidavit;

6. “That most humbly and respectfully it is stated and submitted that the petitioner has prayed for direction to the respondent to appoint his as 4th grade employee in Pakur District against the vacant post created as because one Sri Tanzim Alam who has been appointed put of BC2 category has denied to join it is further asserted that the name of the petitioner finds place at Sl. No. 2 of BC2 category and as the matter of fact the said vacancy created on denied to join by said Tanzim Alam has already has been filled up by a candidate namely Anil Kumar Yadav on the ground of disability against the Kota of BC-2 category. As such, in fact, no vacancy has been available at present indeed. So far as annexures as mention in the petition are concerned those are matter of records and needs no comments.

11. That with regard to the statement made in para 15 of the writ petition it is most humbly and respectfully stated and submitted that considering the actual facts and circumstances it will be evident that no vacancy is available in the event of denial to join by one Tanzim Alam as in his place a candidate of handicapped kota of BC2 category has been appointed in pursuance of Hon'ble High Court order as mentioned order and such the petition is fit to be dismissed.”

4. Mrs. Nitu Sinha, learned counsel appearing for the petitioner has submitted that though the said Anil Kumar Yadav belongs to an entirely different category, overlooking the claim of the petitioner for appointment in BC-II category, he has been appointed on a pretext of an order passed by this Court in W.P.(S) No. 3169 of 2008. She has placed reliance on the mandatory provisions of the 'Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 and contended that the appointment of the said Anil Kumar Yadav would be deemed to have been made in accordance with the mandatory provisions contained in Section 33 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995.

5. Per contra, Mrs. Sweta Singh, learned counsel appearing for the respondents – State of Jharkhand has contended that a person put in the waiting list has no right of appointment. The only right which accrues to such a person is a right of consideration for appointment. The claim of the petitioner could not be considered because this Court in the proceeding of W.P.(S) No. 3169 of 2008 by order dated 20.03.2012 directed the respondent – State to appoint one Anil Kumar Yadav who had also participated pursuant to advertisement no. 1/2010 and who also belongs to BC-II category. She has further submitted that since vacancies which were advertised, have all been filled in, the petitioner cannot be offered any appointment on the post of Peon.

6. Before deciding the