I I •-. I Daleofrder Order with Signature Office Note as toaction(ifany)takenenOrder I. -12-2007 Present: Dr. Doma T. Bhutia, Advocate for the t Ii I petitioner. Mr. S.P. Wangdi, Advocate General with Mr. Karma Thinlay, Govt. Advocate for the State-Respondents.TheleamedAdvocatefortherespondents prayed for adjournment of the matter yesterday on the ground that the reservation policy is under consideration for review by the Sta.te Government. However, a.djournment was opposed by the learned counsel for the writ petitioners and we started hearing the matter yesterday. The matte is heard in part. Adjournment is requested toda by learned counsel for the petitioners for filing o additional affidavit. Adjournment is refused. This is a writ petition at the instance of disabled person who suffered 50°/o 1ocomoto disability. The certificate to that effect given b the Govt. department is produced and it i submitted that such certificate can be obtaineonlyonproductionacertificatebyaregistere Doctor. We have every sympathy with the wr Sel.'al Date Order with Signature Office Note as to No. oj of action(ifany) I Order Order takenonorder I I petitioner for her disability but we are unable to I \ grant any relief to her for the reasons stated below.The main grievance of the writ petitioner is against Clause 6 of the Notification dated 17-11-2003. The said Clause 6 mentions thattherewouldbenocarryingforwardofrosterpoints and this is what the writ petitioner is aggrieved by. The learned counsel for the writ petitioner relied heavily and solely on the D±iEg±±c± of 192§ which is the first Act of 1996 and the full heading is The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Pal-ticipation) Act, 1995. Sections 33 and 36 of the said Act werereliedupononthepartofthewritpetitioner. The said two Sections are set out below:-"33.Reservationofposts.-Everyappropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- (i) blindness or low vision; _fi Serial Date Order with Signature Office Note as to No. ofOrder ofOrder action (if any)takenonOrder (ii) hearing imp airment; - (iii) 1ocomotor disability or cerebral palsy. in the posts identified for each disability: Provided that the appropriate 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 rna.y be specified in such notification, exempt any establishment from the provisions of this section. 36. Vacancies not filled up to be carried forward.-Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange alnong 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 vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies is an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government." According to the writ petitioner under the express terms of Section 36 there has to be a carry forward and since Clause 6 of the Notificationprohibitscarryingforwarditisarguedtobe a Serial Date Order with Signature Office Note as to No. ofOrder ofOrder action (if any)takenonOrder I violative of the Act. Relief was accordingly claimed.The argument in our opinion is mis- conceived. SLss±±gL:n.3rfepEs when and only whensection33reserve£_j2_£os±§_are..injssu9. This reservation u/s. 33 is to be made by the appropriate authority exercising power under the 1995, Act. The notification of 2003 is not the result of an exercise of power under Section 33. The Disabilities Act reservation is a special type of reservation. It is not a reservation of a certain percentage of certain posts for disabled persons. It is a reservation of the post itself, which is to be identified for each different type of disability. Incidentally, there have been notifications seeking to exempt the army from the application of the said Act but that matter does not concern us here.TheActcame into being on the basis of a convention, the running idea where was that even people with a very great degree of disability, who a -Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order are still able to work in spite of their great handicap, should be kept absorbed in society fully, and should be given full opportunity of work just like.people with no disability at all. It was a very high aim which was sought to be achieved by the Act and there are obviously very great difficulties in the way of making this achievement fully and truly in the Indian context where even fully educated and fully able bodied persons do not have work. It is very difficult to have identification of posts which are kept apart only for highly disabled persons. Disabilities below 40% do not qualify as disability under the 1995 Act. Be that as it may, the attempt to apply Section 36 of the Disabilities Act to Clause 6 of thesaidNotificationisanimpossibleone,sincethere is no identification of posts with particulars of disability which is the base upon which only Section 36 can operate. Speaking very accurately, there has to be post identification for different types of disability i.e. there would have to an r\SeriaNo.ofOrder I DateofOrder Order with Signature Office Note as toaction(ifany) taken on Order identification of locomotor disabilities posts u/s. 33 by the establishment in question under the 1995 Act before Section 36 could be invoked bythewritpetitioner.Thewritpetitionisthus misconceived in law and is dismissed without anyorderastocosts.(A.N.Ray,CJ)(A.P.`Subba,J)