JUDGMENT 1. - Instant writ petition has been filed by petitioner who is physically handicapped with 40% permanent locomotor disability, seeking his fair consideration for appointment to the post of Junior Lab. Assistant, advertised alongwith other posts vide advertisement dated 09.06.05 (Ann. 8) whereby in all 14 vacancies were initially advertised but selection has made against 30 vacancies out of which one vacancy against 3% was reserved for physically handicapped quota. 2. Minimum qualification for the post of Jr. Lab. Assistant is Secondary (Science) or equivalent declared by Government. Under advertisement (Ann. 8) there is no specific clause mentioned with respect to 3% quota reserved for physically handicapped persons but it has come on record that such a reservation has been provided to physically handicapped persons in course of process of selection to the post in question. 3. Petitioner & other similarly situated persons applied for consideration of their candidature for the post of Junior Lab. Assistant against 3% quota reserved for physically handicapped persons as per their policy. 4. Case of the petitioner is that despite having secured 69.67% and 61.85% marks respectively in Secondary & Sr. Secondary examinations and eligible against reserved quota for physically handicapped, he was not called for interview; hence approached this Court by way of instant petition. Vide interim order dated 10.03.06, this Court directed not to fill up vacancy reserved for physically handicapped till further orders. 5. Main grievance of petitioner is that when he is otherwise eligible and was entitled to be considered as one of eligible applicant being covered under physically handicapped reserved quota, denial of his consideration in the facts came on record, is wholly arbitrary and in violation of Article 14 of the Constitution. 6. Respondents have filed reply to writ petition. It would be proper to take note of additional affidavit which gives complete facts having been taken note of by respondents in the selection impugned and as per which, against post of Jr. Lab. 6. Respondents have filed reply to writ petition. It would be proper to take note of additional affidavit which gives complete facts having been taken note of by respondents in the selection impugned and as per which, against post of Jr. Lab. Asstt., against 30 vacancies available, one vacancy was reserved against 3% quota for physically handicapped-against which in all 176 applications were received in the Office of respondents-out of which 111 applications are of whom suffering from post polio paralysis; 8 from ankylosis and remaining 57 applications are of persons either from category of blind, deaf or were unable to produce requisite medical certificates about nature of their disability whose applications being found incomplete were not considered. Thus out of total applications available for considerations against one vacancy reserved for physically handicapped were 119-for the purposes of scrutinising their applications and also to adjudge their suitability for the job in question, a Board was constituted of six members by respondents which considered over all suitability looking to nature of their deformity in disability and taking note of requirement of service, which according to the Board has minimum deformity/disability so as to perform duties of post of Jr. Lab. Asstt., finally considered respondent No. 3 to be suitable person despite the fact that others were also eligible and were much higher in order of merit qua him for appointment but were left out. To be more specific, respondent No. 3 stood at S.No. 113 in over all merit as he secured 41% and 40% marks in Secondary & Senior Secondary School examinations. This fact has also not been denied that there were 13 persons above the petitioner in order of merit, as well. 7. According to respondents, out of all eligible applicants, the Board took three persons-two suffering from post polio paralysis and one from ankylosis who were called for interview and finally selected respondent No. 3 to be best suitable person for the post in question and according to them higher percentage of marks in academic qualification cannot be considered as the basis for holding incumbent suitable for the job. 8. Respondent No. 3 has also filed reply and supported the stand taken by the respondent State. 8. Respondent No. 3 has also filed reply and supported the stand taken by the respondent State. Both the Counsel for respondents jointly submit that the Board constituted by respondents has examined suitability of all the eligible applicants including petitioner, as well and looking to nature of job, found only respondent No. 3 being best suitable for the post in question and in absence of any malice imputed against members of the Board in holding respondent No. 3 suitable, their action cannot ordinarily be interfered with in limited scope of judicial review, in writ jurisdiction of this Court. In support of contentions, Counsel placed reliance upon decisions of Apex Court in Union of India v. Bikash Kumar, JT 2006 (12) SC 578 ; Nandkumar Narayanarao v. State of Maharashtra, 1995 (6) SCC 720 . 9. I have considered contentions of both the parties and with their assistance examined material on record. Indisputable facts, emerged from record, are that petitioner & respondent No. 3 both are eligible to be considered against one advertised vacancy reserved for physically handicapped; and is to be filled under the provision of the Rajasthan Police Forensic Science Subordinate Service Rules, 1980 ("Scheme of Rules"). 10. Earlier, State Government framed Rajasthan Physically Handicapped Employment Rules, 1976 so as to provide benefit of reservation to the physically handicapped persons, but by a passage of time, Central Government considered that the benefit to physically handicapped persons in public employment has not been extended in its true spirit and thus came with legislation in order to provide full participation and equality of the people who are serving with disabilities so that they can remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons; and thus enacted the Persons with disabilities (equal opportunities, protection of rights & Full Participation) Act, 1995 ("Act, 1995")-S. 2(i) whereof defines "disability" as under : "(i) "disability" means-(i) blindness; (ii) low vision; (iii) leprosy cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; & (vii) mental illness. "Locomotor disability" is defined in section 2(o) the Act which reads as under : (o) "Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy." section 2(t) defines "person with disability" which means a person suffering from not less than forty percent of any disability as certified by a medical authority. 11. As per Chapter III of the Act, 1995, every State is under obligation to constitute State Co-ordination Committee so that they may solve problems faced by persons with disabilities. Under Chapter VI, every appropriate Government has to identify posts, which are to be reserved for persons with disabilities. Section 32 of the Act reads as under : "32. Identification of posts which can be reserved for persons with disabilities - Appropriate governments shall (a) identify posts, in establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology." 12. From relevant provisions quoted ibid, it is clear that while providing protection to persons with disabilities, appropriate Government has been authorised to identify posts, and the kind of disability which is compatible with the post and can be reserved for such persons and vacancies not less than 3% has been provided for them in terms of section 32 (supra). 13. In exercise of powers U/s. 32 of the Act, 1995, State Government U/Art. 309 of the Constitution notified the Rajasthan Employment of Disabled Persons Rules, 2000 and repealed its earlier Rules, 1976; and Schedule appended thereto, includes posts of Lab Assistant, which is one of the posts included in Schedule appended to Scheme of Service Rules, 1980 as well. It appears that post of Lab. Assistant is being considered at par so far as recruitment to the post of Jr. Lab. Assistant, as in the instant case is concerned. Under Schedule, it has been specified that persons suffering with disabilities of O.L. (One Leg), B.L. (Both legs), M.W. (Muscle Weakness) (Leg), P.B. (Part blindness) (FT) (Fast tiredness) are considered to be suitable for the job to the post of Junior Lab. Assistant. 14. Lab. Assistant, as in the instant case is concerned. Under Schedule, it has been specified that persons suffering with disabilities of O.L. (One Leg), B.L. (Both legs), M.W. (Muscle Weakness) (Leg), P.B. (Part blindness) (FT) (Fast tiredness) are considered to be suitable for the job to the post of Junior Lab. Assistant. 14. Indisputably, petitioner & respondent No. 3 both are suffering with loco-motor disability with 40% and are eligible also to be considered against vacancy reserved for physically handicapped person. Petitioner is suffering from post polio paralysis to his right leg while respondent No. 3 with ankylosis and both being eligible were permitted by respondents to participate in process of selection against vacancy reserved for physically handicapped person under Scheme of Rules, 1980 framed in exercise of powers under proviso to Art. 309 of the Constitution and in terms of Section 32 of the Act, 1995. 15. Question for consideration arises that if petitioner too is eligible in terms of his academic qualification and post has also been identified for such kind of handicapped person under Rules, 2000 framed under Art. 309 of the Constitution of India, can the Board constituted by respondents for making selection was competent enough to eliminate eligible applicants by way of their own method of suitability adjudged for the post in question. 16. It appears from the record that 112 applicants were above respondent No. 3 but all were eliminated by Committee constituted by respondents for one or the other reason, holding them to be unsuitable for the post in question. Nothing has come forward as to on what premise eligible applicants including petitioner as well were considered to be unsuitable particularly when neither they were call for interview nor any medical report in regard to their deformity assumed by Committee in discharge of duties for the post in question, was obtained by medical authority. 17. Be that as it may, if persons suffering from locomotor disability including post polio paralysis/ankylosis with 40% disability have been considered eligible taking note of their disability under relevant Rules, still the Committee constituted by the respondent have any competence to adjudge their eligibility particularly when they are considered to be eligible under Disability Rules, 2000. The Committee was only supposed to adopt a method or procedure to select the best amongst eligible applicants as provided under Scheme of Service Rules, 1980 against the advertised post. The Committee was only supposed to adopt a method or procedure to select the best amongst eligible applicants as provided under Scheme of Service Rules, 1980 against the advertised post. However, method impugned as adopted by Committee of respondents in eliminating 112 eligible applicants including petitioner, as well who are indisputably above respondent No. 3 in order of merit, clearly smack of arbitrariness on their part and such action in no manner can be said to be in consonance with Art. 14 of the Constitution and also in terms of Scheme of Rules, 1980. 18. However, indisputably, against the vacancy, in order to merit prepared by respondents as per their reply and as averred in additional affidavit, present petitioner was at S. No. 14 and 13 persons are also above him. It is also true that even if selection of present respondent No. 3 is considered to be bad in law, yet petitioner at least cannot get straight way appointment since there are other eligible applicants available being higher in order of merit than him, as is evident from merit list produced by respondents. 19. Contention of Counsel for petitioner that others who might have been higher in order of merit than petitioner's since have not approached this Court, he is entitled for appointment if post is to be filled amongst eligibles having higher merit at least qua respondent No. 3 herein is not sustainable for the reason that after this fact has been brought to the notice of this Court that there are more persons higher in order of merit above the petitioner, those higher meritorious applicants cannot be denied from consideration of appointment which will certainly offend constitutional mandate of Art. 14 and merely because one has not approached this Court, they cannot be deprived of their rightful claim of fair consideration in public employment. 20. Judgments on which Counsel for respondents placed reliance are of no assistance in the facts of instant case in view of what has been observed above. However, once very action of respondents in adopting procedure impugned is held to be erroneous being not in consonance with Scheme of Rules and constitutional mandate, I have no option except to set aside selection of respondent No. 3 impugned herein. 21. Consequently, the writ petition succeeds and is hereby allowed. However, once very action of respondents in adopting procedure impugned is held to be erroneous being not in consonance with Scheme of Rules and constitutional mandate, I have no option except to set aside selection of respondent No. 3 impugned herein. 21. Consequently, the writ petition succeeds and is hereby allowed. Selection made of respondent No. 3 by respondent No. 1 & 2 in pursuance of advertisement (Ann. 8) is hereby quashed & set aside and respondent Nos. 1 & 2 may now initiate process of selection in view of what has been observed above and keeping in view Scheme of Rules, 2000 & Service Rules, 1980 for the post of Junior Lab. Assistant and fill the post in accordance with law. No order as to costs.Writ Petition Allowed. *******