JUDGMENT : Nishita Mhatre, J. 1. The Appellant is an orthopedically challenged person. He has acquired a Bachelor’s Degree in Electrical Engineering in the year 2010. A recruitment notification was issued by the West Bengal State Electricity Distribution Company Limited (hereinafter referred to as “WBSEDCL”) in February 2013 for filling up the post of Assistant Engineer. The Appellant applied for recruitment in the reserved category for physically handicapped persons. He appeared in the written test scheduled on 16th June 2013. Having completed the written test successfully, he was invited for an interview for the post. He qualified at the interview and was placed in the list of qualified candidates published by WBSEDCL on 14th December, 2013. The Appellant received the call letter and was directed to appear for the medical fitness test. However, no final list of successful candidates was published after the medical examination was held. 2. As the Appellant had no information regarding his appointment, he sent several representations and letters to the WBSEDCL and to the Commissioner for Persons with Disabilities, Government of West Bengal. The Appellant received no response from these authorities. He therefore submitted an application under Right to Information Act, 2005 on 18th July, 2014, seeking information about his appointment. The Appellant received information indicating that there was a backlog of 11 vacancies in 12 vacancies advertised in the physically handicapped category when the WBSEDCL had advertised for 167 posts of Assistant Engineer (Electrical). The 11 posts in the backlog were to be distributed as follows: visually impaired - 3, hearing impaired - 4 and orthopedically handicapped - 4, were carried forward from the previous year 2012. The information also disclosed that the number of candidates finally selected was - visually impaired category 1, hearing impaired category 2 and orthopedically handicapped 4, pursuant to the employment notice issued in February 2013. The appellant was supplied a copy of the order passed by the Commissioner for Persons with Disabilities, Government of West Bengal, on a complaint submitted by another candidate who had applied for the post of Assistant Engineer (Electrical) pursuant to the same advertisement issued in February, 2013 by the WBSEDCL. 3. The appellant was supplied a copy of the order passed by the Commissioner for Persons with Disabilities, Government of West Bengal, on a complaint submitted by another candidate who had applied for the post of Assistant Engineer (Electrical) pursuant to the same advertisement issued in February, 2013 by the WBSEDCL. 3. The order issued by the Commissioner for Persons with Disabilities, Government of West Bengal, discloses that the panel was not prepared in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “the Disabilities Act”). The WBSEDCL was directed to prepare a panel to ensure 1 per cent reservation for each of three categories of persons with disabilities mentioned in Section 33 of the Disabilities Act, and the notification issued by the Labour Department, Government of West Bengal on 1st March, 2011. The WBSEDCL was also directed to follow Section 36 of the Disabilities Act and to submit a compliance report to the Commissioner. 4. However with all these efforts of the Appellant the WBSEDCL did not change its stand and continued to be of the opinion that they had followed the Reservation Policy in accordance with the aforesaid Act. 5. The Appellant therefore preferred a Writ Petition before this Court. The learned single judge held that it was a mistake on the part of the Company to not have indicated the subcategories in the light of the provisions of Section 33 of the Act prior to 2013. The learned judge observed that the categorization in the year 2013 was as a consequence of the order passed by the Commission pointing out the default of the Company. The Writ Petition has been disposed of with the following order: “W.P. No.2598 (W) of 2015 is disposed of by requesting the Distribution Company to consider the petitioner’s application for the 2014 process in accordance with law and to ensure that the petitioner is not denied an appointment in the event the petitioner falls within the best-placed orthopedically handicapped candidates in the relevant category or, thereafter, in the open category reserved for persons with disabilities under the interchangeability rule recognised in Section 36 of the Act.” 6. The grievance of the Appellant in the present case is that had the provisions of Sections 33 and 36 of the Disabilities Act been implemented properly, he would not have been denied an appointment in the orthopedically handicapped category. The learned Counsel for the Appellant has submitted that the WBSEDCL had not implemented the provisions of the aforesaid act till the year 2012 despite the act coming into force in the year 1995. He submits that as a result there was a backlog of 11 vacancies of the year 2012 for the physically handicapped categories which was declared in the year 2013. According to the learned Counsel the distribution of the vacancies in each category for the physically challenged was not notified in consonance with the Disabilities Act. He drew our attention to the rule of interchangeability contained in Section 36 of the aforesaid act which stipulates that when there are insufficient candidates in a particular sub-category of physically handicapped persons those vacancies can be transferred to another subcategory so that the vacancies do not remain unfilled. The learned Counsel urged that had the Disabilities Act been implemented by WBSEDCL earlier, the interchangeability rule would have been made applicable in the year 2013. The Appellant would then have been entitled to absorption. 7. Sections 33 and 36 of the Disabilities Act read as follows: 33. Reservation of posts. – Every appropriate 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; (ii) Hearing impairment; (iii) locomotor 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 may be specified in such notification, exempt any establishment from the provisions of this section. 36. Vacancies not filled up to be carried forward. 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 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: Provided that if the nature of vacancies in 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. 8. As mentioned earlier the Appellant received information under the Right to Information Act which indicated that there was a backlog of 11 vacancies from the year 2012 which was carried forward to the year 2013. In the year 2013 it was necessary for the Respondents to earmark which vacancies were available for each of the 3 aforementioned categories under Section 33 of the Disabilities Act. In fact, the information under the Right to Information Act indicates that 3 vacancies were available for visually impaired and 4 for each for the hearing impaired and orthopedically handicapped categories. The final selection of candidates was 1 in the visually impaired category, 2 in the hearing impaired and 4 in the orthopedically handicapped categories. Thus, there can be no doubt that if the recruitment drive undertaken in the year 2012 had specified the vacancies for each sub-category of the physically challenged persons, the interchangeability rule contained in Section 36 of the Disabilities Act could have been applied for the recruitment in 2013. The information obtained by the appellant demonstrates that there was a backlog of 11 vacancies of the year 2012 which were brought forward to the year 2013 plus 1 vacancy which arose in the year 2013 was also available. If there were no candidates in the other categories such as visually handicapped and hearing impaired, the Respondents ought to have allotted those vacancies for the physically handicapped. If there were no candidates in the other categories such as visually handicapped and hearing impaired, the Respondents ought to have allotted those vacancies for the physically handicapped. The recruitment process of 2013 was evidently flawed because the procedure laid down in the Disabilities Act had not been followed. We find therefore that the learned single Judge was not right in concluding that the interchangeability rule would apply only in 2014 and not in 2013. 9. However, the Appellant has already applied for the recruitment against the vacancies which were declared for the year 2014. If the Appellant is successful in that recruitment process, no further orders are necessary in this appeal. The rights of the Appellant under the Disabilities Act have been violated by the incorrect implementation of the Act. Therefore we direct that in the event the Appellant is not successful in the 2014 recruitment process, since he was already found suitable in the 2013 recruitment process having passed his written test, oral interview and medical examination, a supernumerary post shall be created by the Respondents for the Appellant. The Appellant will then be appointed against this supernumerary post. If such a supernumerary post is created, it will not act as a precedent either in the recruitment process of 2013 or thereafter. We make it abundantly clear that in the event the Appellant is recruited against the supernumerary post, he will be entitled to salary and all other benefits of regular employees. We direct that the appointment order be issued to the appellant within two weeks from today appointing him to the supernumerary post. 10. This post will be adjusted against the vacancies of 2015 as we have been informed by the learned Counsel for the respondents that those vacancies have not been advertised as yet. 11. The appeal is disposed of accordingly. The application being CAN 2394 of 2015 is also disposed of. 12. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.