The petitioner is President of Jharkhand Viklang Manch (JVM), which has organized various awareness programmes for differently-abled persons. The issue projected in the writ petition is, “whether reservation under Section 33 of the Disability Act, 1995 has to be implemented considering the total number of posts advertised only or the number of posts advertised viz-a-viz cadre strength ?”. The stand taken by the Government of Jharkhand in the counter-affidavit has prompted us to deal with the issue in detail.

2. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is an outcome of the Disability Rights movement which gained momentum in the Beijing Meet of the Economic and Social Commission for Asian and Pacific Region held in December, 1992 where “The Asian and Pacific Decade of Disabled Persons 1993-2002” was launched. The Government of India, to discharge its obligation under “Proclamation on the full participation and equality of people with disabilities in the Asian and the Pacific region”, introduced a Bill on the subject in the Lok Sabha on 26.08.1995 which is the present 1995 Disabilities Act. The statement of objects and reasons “for enacting 1995 Act” makes it apparent that it is the responsibility of the State to remove discrimination against persons with disabilities, to counteract any situation of the abuse and exploitation of persons with disabilities and to lay down a strategy for equalization of opportunities for persons with disabilities. The Disabilities Act, 1995 has been made applicable to establishments financed wholly or substantially by the Central Government or the State Government or any local authority. The definition of “establishment” under Section 2(k) includes a corporation or an authority or a body owned or aided by the government or a local authority or a government company. Section 32 mandates that the Appropriate Government shall identify posts in the establishments, which can be reserved for the persons with disabilities and shall review the list of posts so identified, in periodical intervals however, within 3 years.

3. Section 33 makes reservation of not less than 3% for persons or class of persons with disability of (i) blindness or low vision, (ii) hearing impairment and, (iii) locomotor disability or cerebral palsy in the vacancies to be filled up, mandatory. Section 36 provides that the vacancies which remained unfilled in any recruitment year due to non-availability of suitable persons with disability or, for any other sufficient reason, shall be carried forward in the succeeding recruitment year. The commitment of the government to provide reservation not less than 3% to the persons with disabilities is further reflected in Section 36 which provides that if in the succeeding recruitment year also suitable person with disability is not available, the post 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 vacancies by appointment of persons, other than the persons with disability. Section 36 further provides that “if the nature of the vacancies in an establishment are such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with prior approval of the Appropriate Government”.

4. The Disabilities Act is a special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them, is not in dispute. Section 72 of the Act provides that the provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the “benefit of persons with disabilities”.

5. It would not be out of context to notice that the right of visually handica