JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner, who is orthopedic handicapped, had applied in pursuance of advertisement issued under the directions of Govt. of Rajasthan for recruitment to the post of Lab Boy. As per the advertisement 3 posts were kept reserved for handicapped persons. In pursuance of advertisement about 5,000 candidates had applied which included the petitioner also, whose names were forwarded through the Employment Exchange. He was also invited for interview. However, ultimately 58 persons were given appointment. Only one vacancy out of three reserved for handicapped candidates was filled from amongst the candidates applying for the post. As two posts of the handicapped persons were not fulfilled in terms of advertisement, the petitioner made representation for considering his case against the said reservation and demanded he be considered and appointed against the handicapped quota on the post of Lab Boy or a class IV servant. Not finding response, this petition has been filed with the following reliefs "(i) by an appropriate writ, order or direction in the nature of mandamus or certiorari, non- petitioners may be directed to select and appoint the petitioner on the post of Lab Boy in the scale II (Lab Assistant) in pay scale of 755-1025/- from the date when one post is fill up in handicapped category with all consequential benefits. (ii) that in the alternative, non-petitioners may kindly be directed to appoint the petitioner in any Government department on any post as per his eligibility with immediate effect." 3. The fact that the petitioner is a handicapped orthopedic, is not disputed by the respondents No. 1 to 3 in their reply submitted through Addl. Advocate General nor they have disputed further facts. However, they have stated in their reply about reservation aspect of the consideration that for physically handicapped persons, the Govt. has granted 3% reservation against roster points. According to the roster, if 100% are to be appointed then a blind person shall get priority at point 34. Thereafter, the number of priority comes to deaf or mute at point 67. The last post to be filled under this category comes at point 100. 4. It was further stated in their reply that in pursuance of advertisement in question 58 persons were appointed and persons were appointed against roster points No. 17 to 76. Thereafter, the number of priority comes to deaf or mute at point 67. The last post to be filled under this category comes at point 100. 4. It was further stated in their reply that in pursuance of advertisement in question 58 persons were appointed and persons were appointed against roster points No. 17 to 76. In the roster point orthopedically handicapped person comes at point 100 and therefore, the petitioner was not given appointment on the said post. The petitioner's name did not find place in the order of merit to be appointed against 58 persons. 5. From the aforesaid, it is apparent that roster point 34 and no. 67 reserved for handicapped persons fell within the roster points No. 17 to 76, against which appointments were made. If two roster points had been filled by appointing handicapped persons, obviously the petitioner cannot get relief. But, any of the point 34 and 67 between 17 to 76 have not been filled by a person belonging to handicapped category, the question would arise whether the petitioner can legitimately claim consideration against those rosters points reserved for blind and deaf/dumb respectively, when admittedly he does not belong to either of class. In the present case admitted position is that only one person of blind category has been appointed against roster point 34 and perhaps because of the non-availability of deaf and dumb, roster point No. 67 was filled by general candidate by not considering handicapped candidates in different categories. 6. In this connection, my attention was invited to the Rule 4(5) of the Rajasthan Employment of the Physically Handicapped Rules, 1976, which reads as under "In the event of non-availability of candidates belonging to the particular category or physically handicapped persons or if the nature of vacancies in an office is such that a given category of physically handicapped persons cannot be employed, inter- se exchange of posts/vacancies shall be permissible." 7. If this test is applied, the answer has to be searched whether the respondents have brought the conditions into operation, when a case for operation of this rule has been made out. 8. Annexure-7 which has been produced along with the writ petition is a document dated 25.1.92 emanating from district Education Officer Boys and Girls, Nagour, which is list of 58 candidates selected and also discloses category to which an appointee belongs. 8. Annexure-7 which has been produced along with the writ petition is a document dated 25.1.92 emanating from district Education Officer Boys and Girls, Nagour, which is list of 58 candidates selected and also discloses category to which an appointee belongs. The last item shows that in the category of handicapped/(blind) candidates only one name has been shown viz. Rajendra Kumar S/o Bhanwarlal of Maroth, Nagour, as the last item in the list. It is apparent from the list that only one candidate had been appointed against the reserved seats for handicapped persons i.e. Rajendra Kumar as a blind person whereas three posts have been reserved for handicapped constitutency. According to respondents, roster point no. 34 was filled for blind person and point no. 67 could to be filled from dumb or mute only. Apparently, no deaf/dumb candidate was available against point no. 67 in terms of Rule 4(5) of the Rules of 1976 and, therefore, filled from general category. Since roster has not reached 100 point, reserved for such class of handicapped candidates to which the petitioner belongs. 9. In this connection, sub-rule (8) of Rule 4 also needs attention which provides after laying down the reservation upto 3% of the vacancy in the categories of posts in Subordinate, Ministerial and Class IV Services as being particularly suitable for physically handicapped persons, other things being equal, preference should be given to physically handicapped persons for such jobs/posts even in excess of the quota reserved for them. 10. Thus, in my opinion, looking to the nature of Annexure-7 which includes the class IV post and the post in the category of Subordinate, Ministerial Services, when admittedly three vacancies were advertised for the handicapped candidates, the case for considering the petitioner as handicapped person was clearly made out even at roster point 67 because of non-availability of deaf and dumb. It became inter-changeable with next roster point of handicapped class in terms of Rule 4(5) of Rules of 1976. Even in the absence of vacancy as roster point he was entitled to be preferred other things being equal, for which also it was necessary to include a candidate from handicapped category so as to find out 'other things equal'. Thus, the respondents have failed to afford equal opportunity of consideration in the matter of appointment in State employment in terms of rule and exclusion from consideration was on erroneous assumption. 11. Thus, the respondents have failed to afford equal opportunity of consideration in the matter of appointment in State employment in terms of rule and exclusion from consideration was on erroneous assumption. 11. Considering the question whether any relief can be granted to the petitioner we find that in pursuance or order dated 25.5.93 as affirmed by order dated 2nd February, 1996 one post has been kept vacant to grant fruitful result to the petitioner in case he succeeds. 12. Accordingly, the petition is allowed. The respondents are directed to consider the case of the petitioner against the post advertised in pursuance of which the petitioner has applied amongst handicapped quota and if found suitable for the Lab Boy keeping in view his handicap, he may be appointed on the post of Lab boy otherwise, he should be considered for giving appointment in IV class service for which also the advertisement was issued, which is otherwise envisaged to be suitable to be filled up by any physically handicapped by preference, other things being equal and if found suitable, the appointment be offered to him. However, the said appointment shall not entail any claim to emoluments prior to the date of appointment, but he shall be entitled to be assigned seniority and other consequential benefits flowing from such appointment in pursuance of order as part of the sane selection, including fixation of pay. 13. There shall be no order as to costs.Writ Petition allowed. *******