ORDER Petitioner Vinita Nair, aggrieved by failure/omission of respondent-University of Rajasthan to provide reservation to physically handicapped candidates against all 294 posts of Professors, Associate Professors and Assistant Professors of all the departments rather than subject-wise, has approached this court by filing present writ petition, with the prayer that the respondent be directed to provide reservation to visually impaired candidates as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act of 1995'). Prayer has also been made for a direction to respondent to maintain roster system to extend benefit of Rules 37 and 40 of the Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2011 (for short, 'the Rules of 2011') and to maintain roster register with effect from 07.02.1996. The respondent-University of Rajasthan issued an advertisement No. Estt.-I/2012/3189 on 01.11.2012 inviting applications for appointment against 294 posts of Professors, Associate Professors and Assistant Professors including five posts of Assistant Professor in the subject of Philosophy. Petitioner possesses the qualification of B.A., M.A., M. Phil. and Ph.D. She also cleared National Eligibility Test and State Eligibility Test. She has requisite experience of four years of teaching as Lecturer in three recognized Degree Colleges. She being eligible for the post of Assistant Professor in Philosophy subject, applied for appointment on the said post. But the respondent did not provide reservation to visually impaired against the post of Assistant Professor in the subject of Philosophy. Petitioner submitted a representation to the Vice Chancellor on 14.11.2013. When however, the petitioner failed to receive any response, she approached the Commissioner, Specially Abled Persons, Rajasthan, who, by order dated 16.12.2013, directed the respondent-University to consider the case of the petitioner for appointment on such post as per the provisions of Section 33 of the Act of 1995 and Rule 40(i) of the Rules of 2011. Refusal of the respondent-University to implement the order of the Disability Commissioner, has compelled the petitioner to move this court by filing the present writ petition. Petitioner Ms. Vinita Nair argued her case in person, meticulously referring to each relevant provisions of law, relevant documents with reference to the pagination in the paper book and contents thereof. Refusal of the respondent-University to implement the order of the Disability Commissioner, has compelled the petitioner to move this court by filing the present writ petition. Petitioner Ms. Vinita Nair argued her case in person, meticulously referring to each relevant provisions of law, relevant documents with reference to the pagination in the paper book and contents thereof. She has argued that it was incumbent upon the respondent-University to provide 3% reservation as per the mandate of Section 33 of the Act of 1995 out of total 294 posts, which would be six, of the posts are sought to be filled in by direct recruitment. Working out 3% quota on total 294 posts, respondent no.2 were required to provide reservation on 12 posts to differently abled persons, whereas they have provided reservation against only six posts. It is contended that the Rules of 2011 came into force from 26.07.2011. As per Rule 37 of the Rules 2011, the respondent is under obligation to maintain the roster system having cycle of 100 points. Each cycle of 100 point shall be divided into three blocks, thus providing reservation to differently abled candidates at points no.1, 34 and 67. Petitioner being visually impaired is covered in that category. She is therefore also entitled to concession given under Rule 40(i) of the Rules of 2011. This Rule provides concession of 5% in qualifying/pass-marks in individual paper or aggregate, whatever is prescribed in the examination. Ms. Vinita Nair, petitioner, further submitted that the respondent-University itself in the information supplied to the petitioner vide communication dated 08.08.2013 under the Right to Information Act conveyed that 3% reservation is provided for physically handicapped candidates and such reservation can be provided against the vacancies in any department depending upon the availability of specially abled candidates to fill the quota of 3%. Petitioner argued that she has been furnished with yet another information under the Right to Information Act by the respondent-University vide communication dated 08.05.2014, according to which, the University did not prepare any separate list of physically handicapped candidates applied for appointment, inasmuch as no separate list for visually impaired candidate or of those having locomotive disability was prepared. It has been informed that only one visually impaired candidate has been selected in the entire process of selection. It has been informed that only one visually impaired candidate has been selected in the entire process of selection. In response to a particular query as to the backlog and maintenance of roster system and whether concession of 5% as per Rule 40 has been provided or not, vague reply has been given by the respondent to all these queries that this would be clear from the advertisement. The petitioner argued that even though the respondent was required to provide reservation to four candidates in the category of visually impaired, their quota being 1% of overall 3%. Therefore, if only one candidate has been selected in the visually impaired category, there was no reason why the petitioner could not be provided reservation against one of the post of Assistant Professor in the subject of Philosophy. The respondent-University was obliged in law to provide the benefit of reservation to petitioner as per Clause 16 of the advertisement, which stipulated that the post reserved for physically handicapped candidate can be shifted according to availability of such candidates without reducing total number of posts. And this has been further admitted by them in the information given to the petitioner under Right to Information Act. Shri S.K. Sharma, the officer-in-charge, representing the respondent-University, has opposed the writ petition. Referring to plea set up in the counter affidavit, he argued that the writ petition is misconceived and has been filed as an afterthought when short-listing of the candidates was over. If the petitioner felt aggrieved by determination of posts or the manner of prescription of reservation for physically handicapped, she should have filed the writ petition immediately after issuance of advertisement. It is contended that eight posts out of 294 posts have been kept reserved for physically disabled persons and therefore it is wrong to state that only six posts have been offered. The respondent-University has provided one post each by way of reservation to physically handicapped in the subjects of Hindi, Public Administration, A.B.S.T., History, Botany, Chemistry, Drawing and Painting, which fact is borne out from the advertisement dated 11.02.2012 itself. Allegation of the petitioner that the respondent has not abided by the provisions of the Act of 1995 is totally baseless. The respondent-University has provided one post each by way of reservation to physically handicapped in the subjects of Hindi, Public Administration, A.B.S.T., History, Botany, Chemistry, Drawing and Painting, which fact is borne out from the advertisement dated 11.02.2012 itself. Allegation of the petitioner that the respondent has not abided by the provisions of the Act of 1995 is totally baseless. None of the five posts of Assistant Professor in the Department of Philosophy was reserved for physically handicapped candidates, therefore the petitioner could be considered only as a candidate in general category on the standard on which any other open market candidate was allowed to compete for appointment. The respondent-University for the purpose of the Act of 1995 is a complete establishment therefore the reservation for physically handicapped has been provided treating it as a sole establishment. Subject-wise reservation cannot be provided as in some of the subjects, number of post is only one or two. If subject-wise reservation is computed in all the subjects, a very negligible fraction may give rise to claims and this may eventually lead to crossing the upper limit of reservation, which would be unjust to other candidates competing against open category posts. Rule 37 of the Rules of 2011 has been misconstrued by the petitioner. I have given my anxious consideration to rival submissions and perused the material on record. The mandate of Article 41 in Part IV of the Constitution containing directive principles of the State policy, moved the Union and State Governments to make provision for reservation in favour of physically disabled invoking its enabling powers under Article 15 of the Constitution of India. This reservation is considered horizontal and has to be provided within the vertical reservation. Article 41 of the Constitution ordains that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Provisions of the Act of 1995 and the Rules of 2011 have to be therefore so interpreted as to advance the spirit and philosophy of Article 41 of the Constitution. It was with that objective that the Government of Rajasthan had already framed the Rajasthan Employment of Physically Handicapped Rules, 1976, much before Act of 1995 came into force. Provisions of the Act of 1995 and the Rules of 2011 have to be therefore so interpreted as to advance the spirit and philosophy of Article 41 of the Constitution. It was with that objective that the Government of Rajasthan had already framed the Rajasthan Employment of Physically Handicapped Rules, 1976, much before Act of 1995 came into force. Rule 3 of the Rajasthan Employment of Physically Handicapped Rules, 1976, debarred appointment of the blind on the post in State services. A Single Bench of this Court in Surya Prakash Sharma vs. State of Rajasthan and Another, Writ Petition No. 3702 of 2001, vide judgment dated 13.09.2002 declared Rule 3 of the Rules of 1976 ultra vires the provisions of the Constitution and directed the State of Rajasthan to constitute a committee to find out the basis for giving reservation to the handicapped persons. It was then the Government of Rajasthan vide notification dated 09.09.2000 promulgated the Rajasthan Disabled Persons Employment Rules, 2000. Still, however, the visually impaired persons were somewhat discriminated against. A Division Bench of this Court in Shiv Kumar Singh vs. State of Rajasthan and Another, Special Appeal (Writ) No. 255 of 1996, decided on 14.08.2001, while allowing the special appeal, directed the State Government to consider the case of two appellants for giving them appointment as Lecturer, the posts reserved for physically handicapped. Similar direction was issued by a coordinate bench of this court in Surya Prakash Sharma vs. State (supra) which too was a case filed by the petitioner having disability of blindness, who applied for appointment on the post of Lecturer of College Education. The RPSC confined the benefit of reservation to only those candidates having physical disability in one leg or in both legs. The court allowed the writ petition with direction to the respondents to include the category of blind and partially blind persons in the Rules of 2000 for giving them reservation on the post of Lecturer College Education and consider the case of the petitioner in that category accordingly for the purpose of reservation. It has thus been a long journey before the Act of 1995 was enacted. It has thus been a long journey before the Act of 1995 was enacted. As the very nomenclature and preamble of this Act show that this was enacted to give a succour to the persons upon whom destiny has inflicted various kinds of disabilities and provide them an opportunity to participate in the social milieu like any other able-bodied person. This Act was enacted with a view to implementing 'Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific Region' to which India was one of the signatories. This proclamation was adopted by the Economic and Social Commission for Asian and Pacific Region in its meeting at Beijing in December, 1992 to launch the Asian and Pacific Decade of Disabled Persons 1993-2002. Apart from numerous other countries from Asia and Pacific Regions, Republic of India was one of the participants in the said meeting. In order to highlight the seriousness of the concern shown for this section of society, it would be apt to reproduce the statement of the objects and reasons of the Act of 1995: The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following: (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefit, vis-a-vis non-disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities. (vi) to make special provision of the integration of persons with disabilities into the social mainstream. 2. (vi) to make special provision of the integration of persons with disabilities into the social mainstream. 2. Accordingly, it is proposed to provide inter alia for the constitution of Coordination Committee and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged. 3. The Bill seeks to achieve the above objects. Now here, in the present case, it is not disputed that the post of Lecturer in the subject of Philosophy, like any other subject of humanities and languages, has been identified for specially abled candidates with reference to Section 32 of the Act of 1995. What this court is called upon to decide is whether the manner in which such reservation has been provided by the respondent-University is legally just and proper and conforms to the provisions of the Act of 1995 and the Rules of 2011. Chapter 6 of the Act of 1995 deals with the reservation of posts in various services and seats in various educational institutions of the State. Section 32 of the Act of 1995 provides that appropriate governments shall identify posts, in the establishments, which can be reserved for the persons with disability. Section 33 provides that every appropriate government shall appoint, in every establishment, against such percentage of vacancies, not less than three percent, 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; (ii) hearing impairment; (iii) locumotor disability or cerebral palsy, in the posts identified for each disability. Section 33 is subject to a proviso which suggest 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 may be specified in such notification, exempt any establishment from the provisions of this Section. Such exception has not been granted in this case. Section 34 provides for establishment of employment exchange with a view to providing help to the handicapped candidates desirous of seeking employment. Section 36 carves out an exception to the rule of carry forward of unfilled vacancies, which concept hither to was applicable to verticle reservations given on communal basis and provide for carrying forward of unfilled reserved vacancies for persons with disability to the succeeding recruitment year and if suitable persons with disability are not available, then also to fill up such vacancies by interchange among 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. Section 39 provides that all educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities. Rule 36 of the Rules of 2011 is in fact a reiteration of Section 33 of the Act of 1995 and therefore it does not require much discussion. Rule 37 however is the rule with which we are presently concerned. This Rule requires that all establishment shall maintain separate 100 point reservation roster registers for determining/effecting reservation for the disabled. Each register shall have cycle of 100 points and each cycle of 100 points shall be divided into three blocks; the first block shall have point no.1 to point no.33; the second block shall have point no.34 to point no.66 and third block shall have point no.67 to point no.100. Of them, the point no.1, 34 and 67 of the roster shall be earmarked for the persons with disability, one point for each of the three categories for differently abled, namely, (1) blind or low vision, (2) hearing impaired and (3) locomotive disability or cerebral palsy. Of them, the point no.1, 34 and 67 of the roster shall be earmarked for the persons with disability, one point for each of the three categories for differently abled, namely, (1) blind or low vision, (2) hearing impaired and (3) locomotive disability or cerebral palsy. It has been left for the head of the establishment to decide the categories of disability for which the point no.1, 34 and 67 shall be reserved keeping in view all the aforesaid facts. All the vacancies shall be entered in the relevant register. Rule making authority has purposely provided flexibility in sub-Rules 4 and 5 of the Rule 37 of the Rules of 2011 because there could be possibility that none of the vacancies from point no.1 to 33 is suitable for any category of disabled. In that case, any other vacancies from point 34 to 66 can be filled as reserved for persons with disability. If vacancies from point no.34 to 66 are also not suitable for any category, then all three vacancies shall have to be filled as reserved for disabled in third block containing point 67 to 100. Thus, flexibility has been provided that if no reservation can be provided in first block, then vacancy of that block shall be carried into the next block and further. After completion of 100 point, a fresh cycle of 100 point shall start. As already noticed above, the post of Assistant Professor in the Department of Philosophy, is one of the identified posts for providing reservation to physically handicapped in the category of visually impaired. According to the respondent-University , no reservation was provided against any of the five posts of this subject but they have not come forward with any explanation why no such reservation can be provided to a visually impaired when according to them out of total 294 posts, only one visually impaired candidate has been appointed. Apathy and insensitivity of the respondent towards this beneficial piece of legislation is writ large from their reply to the Right to Information Act in response to query by the petitioner that they did not prepare separate list of physically handicapped candidates, let alone visually impaired ones. In the communication addressed to the petitioner dated 08.08.2013, respondents admit that the reservation for physically impaired can be provided in any department wherever the physically handicapped candidate is available. In the communication addressed to the petitioner dated 08.08.2013, respondents admit that the reservation for physically impaired can be provided in any department wherever the physically handicapped candidate is available. Their this communication in response to RTI query is in conformity with clause 16 of the advertisement, which reads as under:- “3% reservation physically handicapped ds fy, gh gS rFkk fdlh Hkh foHkkx esa tSlk Hkh ‘kkjhfjd viax gksxk] mls 3 izfr’kr esa ls gh vkj{k.k ns; gksxkA** Despite specific provision made in the advertisement itself that the post reserved for physically handicapped candidate can be shifted by the selection committee depending on availability of suitable candidates, without reducing total number of posts reserved for said category, why only one visually impaired candidate was selected, has not at all been explained by the respondent-University. Petitioner is even otherwise entitled to relaxation in the standards of examination/selection in individual subject or in the aggregate of the entire examination as per Rule 40 of the Rules of 2011. This only shows the intention of the rule making authority to provide relaxation in the standards of examination to visually impaired as compared to any other category of physically handicapped candidates. The Supreme Court of India in a recently delivered judgment in Union of India and Another vs. National Federation of Blind and Others, (2013) 10 SCC 772 , has taken special note of neglect being faced by blinds in particular with regard to implementation of Section 33 of the Act of 1995. Para 31 and 32 of aforesaid judgment would be useful for the present purpose, and are reproduced as follows:- 31. A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is “every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability.” It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section. 32. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section. 32. The second part of this section starts as follows:- “Of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability.” From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word “of which”. The word “of which” has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. “identified posts” in this very first part which deals with the statutory obligation imposed upon the appropriate Government to “appoint not less than 3% vacancies for the persons or class of persons with disabilities.” In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are “in the identified posts for each disability” and not “of identified posts”. This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.” In the said judgment, the Supreme Court, while interpreting Section 33 of the Act, has held that computation of reservation for persons with disability has to be made in all posts of Group A, B, C and D posts in identical manner computing 3% reservation on total number of vacancies in cadre strength, which is the intention of the legislature. The Supreme Court thus held that reservation of 3% to differently abled persons should be computed on the basis of total vacancies in the strength of all cadre and not just on the basis of vacancies available in the identified posts. In that view of the matter, the respondent-University was under obligation to compute quota of reservation on the total number of vacancies in the cadre. If total number of posts is 294, vacancies should be nine as 3% of 294 comes to 8.82 and therefore at-least three of these nine vacancies should have been reserved for visually impaired. Even if eight vacancies are taken to have been reserved for differently abled persons, at-lest two of them should have been offered to the visually impaired candidates. The petitioner being second candidate and perhaps only other visually impaired candidate, who may have applied for appointment in response to advertisement in question, was very much entitled to appointment. There was therefore no reason not to consider the case of the petitioner against 5th vacancy of the Assistant Professor in the department of Philosophy. Action of the respondent in not selecting the petitioner is therefore declared to be arbitrary and illegal being contrary to the mandate of the provisions of the Act of 1995 and the Rules of 2011, and Article 41 of the Constitution of India. In view of above, writ petition succeeds and is allowed. The respondent-University is directed to provide appointment to the petitioner on the post of Assistant Professor in the subject of Philosophy within two months from the date a copy of this order is produced before them. The appointment of the petitioner would relate back to the date on which last candidate in the department of Philosophy was appointed. The petitioner would, however, be entitled to only notional benefits for the intervening period. The appointment of the petitioner would relate back to the date on which last candidate in the department of Philosophy was appointed. The petitioner would, however, be entitled to only notional benefits for the intervening period. Parties to bear their own costs.