IMPORTANT POINT
Computation of the number of posts reserved under the Act has to be based on the basis of total vacancies of the cadre and not on the basis of the vacancies available only at the time of notification.

ORDER :

Leave granted.

2. Heard learned counsel for the appellant and Mr. N.K. Kaul, learned Additional Solicitor General of India for the respondents.

3. By the impugned order, the Division Bench of the High Court of Patna, while taking note of the fact, namely, the number of vacancies which were sought to be filled up at the instance of Respondent Nos.2 and 3, took the view that based on the vacancies notified when the 3% reservation provided for under the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Protection) Act, 1995, since it worked out to 0.27 post there was no scope to reserve any post under the said category. With that view, the Division Bench declined to grant any relief to the appellant to claim reservation as a disabled person falling under the definition of the said Act. At the time, when this special leave petition was moved before us, taking note of the legal position, namely, 3% reservation for the disabled persons can only be at the first instance ascertained based on the cadre strength and not based on the vacancies, while issuing notice, we directed the parties to examine the said legal position. In fact, subsequently, Mr. Kaul, himself, when he appeared on 16.12.2015, came forward to examine the legal position in the light of Three-Judge Bench decision of this Court in Union of India and Another v. National Federation of the Blind and Others, reported in (2013) 10 SCC 772.

4. Today, when this appeal was heard, the learned Additional Solicitor General fairly pointed out the ratio laid down by this Court as set out in paragraph 30, which reads as under:-

“30. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case, the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the inter-dependence of Sections 32 and 33 viz., identification of posts and the scheme of reservation, rejected this contention and held as follows:-

“25. …The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Groups A and B posts in the I.A.S. was undertaken after the year 2005 is not of much substance.

26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purpose of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the pr