JUDGMENT :

Per: Hon’ble Ravindra Maithani, J.

Since common question of facts and law involved in both these writ petitions, they are heard together and are being decided by this common judgment.

2. Heard learned counsel for the parties and perused the record.

3. The challenge in both these writ petitions is made to the Final Merit List dated 31.05.2022, published by respondent no.3/the Uttarakhand Public Service Commission (“the Commission”) on the ground that it violates the provisions of Section 34(2) of the Rights of Persons with Disabilities Act, 2016 (“the Act”).

4. Facts necessary to appreciate the controversy briefly stated are as follows: The Commission issued an advertisement on 04.12.2018, inviting online applications from eligible candidates for participating in the Uttarakhand Special Subordinate Education (Lecturer-Group ‘C’) Service (General and Women’s Branch) Exam, 2018, for selection and appointment of Lecturers. The petitioners in WPSS No.1295 of 2022, applied for the post of Lecturer Chemistry, General Branch, whereas the petitioners in WPSS No.1291 of 2020 applied for the post of Lecturer Geography, General Branch. All the petitioners are persons with disability (“PwD”) suffering with Locomotor Disability. They claimed horizontal reservation available for PwD.

5. The petitioners in WPSS No.1291 of 2022 also claimed reservation under Scheduled Caste Category. In WPSS No.1295 of 2022, the petitioner no.2 Vinay Uniyal also claimed vertical reservation under the economically weaker section category.

6. The advertisement made it clear that various posts of Lecturers in Geography and Chemistry, General Branch were identified as suitable for appointment of PwD suffering from different disabilities. After conducting the examination, the result was declared by the Commission. But, for both the positions i.e. Lecturer Geography, General Branch and Lecturer Chemistry, General Branch sufficient number of persons with benchmark disability were not available. Therefore, those vacancies were carried forward for the next recruitment year.

7. It is the case of the petitioners that the Commission issued another advertisement on 12.10.2020 for the posts of Lecturer Geography and Chemistry, General Branch and this advertisement included the vacancies, which were carried forward from the last recruitment pertaining to PwD. The result of succeeding recruitment year was declared on 31.05.2022, but it is the grievance of the petitioners that due to non-availability of suitable persons with benchmark disability, the positions could not be filled with the suitable persons with benchmark disability. The vacancies were second time again carried forward. According to the petitioners, second time the vacancies could not be carried forward in view of the provisions as contained under Section 34(2) of the Act. It is the case of the petitioners that they are also PwD suffering with locomotor disability. They have cleared the screening examination; their marks have also been published by the Commission.

8. It is the case of the petitioners that, pursuant to the advertisement dated 12.10.2020, while preparing the final merit list, if suitable persons with bench marks disability were not available, such vacancies could have been filled by interchange amongst the five categories of disabilities and it is only, when there is no person with disability for the post in that year, the post could have been filled by a person other than a person with disability. But, the vacancies cannot be carried forward second time. The petitioners did make representations; the petitioners have also referred to the Government Orders in this regard pertaining to preparation of Rosters; when no action was taken, the petitioners have come before this Court.

9. The number of vacancies advertised for persons with disabilities in the year 2018, and the vacancies that were carried forward pursuant to subsequent recruitment in the year 2020 of which result was declared on 31.05.202