JUDGMENT : 1. The petitioner is a differently-abled person and suffers from a mild intellectual disability. Her IQ is 64 and she is stated to be suffering from mental illness and her disability has been assessed as 45%. Despite the setbacks faced by her in her life she has passed Higher Secondary examination (Humanities) in March 2014 as is evident from Ext.P2 certificate. She has approached this Court seeking a declaration that she is entitled to be appointed to any of the suitable vacancies at the schools managed by the 7th respondent Corporate educational agency and for a further direction to appoint her in any of the suitable vacancies. 2. Brief facts are as under: The petitioner contends that she is a differently-abled person and suffers 50% mental retardation and therefore a person suffering from benchmark disability. By Ext.P3 order dated 18.11.2018, the Government has directed all aided institutions to appoint differently-abled persons in tune with the provisions of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 and under the Rights of Persons with Disabilities Act, 2016. Though the order was challenged before this Court, the challenge was repelled and this Court, by Ext.P4 judgment, held that the provisions of the Act would apply to aided institutions, and directions were issued to fill up the backlog vacancies as well. In tune with the directions issued by this Court, the Government has issued Ext.P5 order identifying 50 posts as suitable for differently-abled persons under the 1995 and the 2016 Act. The petitioner contends that the 7th respondent is managing various educational institutions and when she received information that they are planning to fill up non-teaching posts at the various aided schools, the petitioner submitted an application and she was issued with Ext.P7 call letter to appear for an interview. She contends that the 7th respondent has not appointed even a single differently-abled person since 2016 and no qualified disabled persons having applied for the non-teaching post, the petitioner was liable to be appointed. Though the petitioner had approached the 7th respondent seeking appointment under the Right of Persons with Disability quota, her request was not considered. She contends that the 7th respondent has not appointed even a single differently-abled person since 2016 and no qualified disabled persons having applied for the non-teaching post, the petitioner was liable to be appointed. Though the petitioner had approached the 7th respondent seeking appointment under the Right of Persons with Disability quota, her request was not considered. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs: (i) Issue a Writ, Order or Direction declaring that Deleesha is entitled to be appointed to any of the suitable vacancies at the schools managed by the 7th respondent educational agency under The Rights of Persons with Disabilities Act. (ii) Issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing the 7th respondent to appoint the Petitioner to any of the suitable vacancies at the schools managed by it under The Right of Persons with Disabilities Act. 3. A counter affidavit has been filed by the additional 8th respondent wherein it is stated that the Government has issued Ext.P3 Government Order providing 4% reservation of the total number of vacancies in the cadre strength in appointments in aided colleges and schools to the posts which are identified for persons with disabilities with effect from 19.04.2017. To the aspect as to whether there is any restriction in employing mentally retarded persons as Full-time Menial and also the formalities to be complied with, it has been stated as follows in Para 7 of the counter: “It was stated in Para 8 of the G.O. (P) No. 19/2020/SJD, dated 25.08.2020, 4% PWD reservation has been granted in the common category posts identified for PWD category which are stated in Para 7, by ensuring the functionality as specified in the Annexure to the said G.O. The common category post of Sweeper (Full time/Part-time)-full time/part-time menial- is identified by the Social Justice Department vide G.O. (P) No. 19/2020/SJD dated 25.8.2020 for all differently-abled categories including mental illness and intellectual disability. Vide Para 9 of the above-mentioned G.O. it has been stated that as the functionality has not been determined in the previous orders implementing 3% reservation for the above said posts, the functionality mentioned against them in the Annexure of the above said G.O. will now apply for the reservation to the said posts. Vide Para 9 of the above-mentioned G.O. it has been stated that as the functionality has not been determined in the previous orders implementing 3% reservation for the above said posts, the functionality mentioned against them in the Annexure of the above said G.O. will now apply for the reservation to the said posts. As per the Annexure I of the said order, Government have permitted those persons who is assessed as 40-70% of Mental Illness or having an IQ level of 55-69 range to apply for the post of Sweeper (Full time/part-time)-full time/part-time menial, in the category of Intellectual Disability, by producing relevant medical certificate, as shown in Annexure-II of the G.O. (P) No. 19/2020/SJD dated 25.08.2020 is produced herewith and marked as Exhibit R8(a) and Exhibit R8(b) respectively.” 4. I have heard Sri. N. Anand, the learned counsel appearing for the petitioner, Sri. V.A. Muhammed, the learned counsel appearing for the 7th respondent and the learned Government Pleader. 5. Section 34(1) of the 2016 Act reads thus: Reservation: (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely: (a) blindness and low vision. (b) deaf and hard of hearing. (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. (d) autism, intellectual disability, specific learning disability and mental illness. (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities. 6. A person with benchmark disability has been defined under Section 2(r) to mean a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability; where specified disability has been defined in measurable terms, as certified by the certifying authority. Section (zc) defines “specified disability” to mean disabilities as specified in the Schedule. 7. Intellectual Disability and Mental Behavior are elaborated in the Schedule to the Act as clause 2 and 3 which reads as follows: 2. Section (zc) defines “specified disability” to mean disabilities as specified in the Schedule. 7. Intellectual Disability and Mental Behavior are elaborated in the Schedule to the Act as clause 2 and 3 which reads as follows: 2. Intellectual disability, a condition characterised by significant limitation both in intellectual functioning (rasoning, learning, problem solving) and in adaptive behaviour which covers a range of every day, social and practical skills, including: (a) “specific learning disabilities” means a heterogeneous group of conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia. (b) “autism spectrum disorder” means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person's ability to communicate, understand relationships and relate to others, and is frequently associated with unusual or stereotypical rituals or behaviours. 3. Mental behaviour: “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. 8. In Vikash Kumar vs. Union Public Service Commission and Others, (2021) 5 SCC 370 , the Apex Court had occasion to explain that the concept of benchmark disabilities under the 2016 PwD Act has specifically been adopted in relation with the provisions of Chapter VI and Chapter VII. Chapter VI contains special provisions for persons with benchmark disabilities. Among those provisions is Section 31 (free education for children with benchmark disability), Section 32 (reservation in higher educational institutions), Section 33 (identification of posts for reservation), Section 34 (reservation), Section 36 (Special Employment Exchange) and Section 37 (Special Schemes and Development Programmes). Chapter VII contains special provisions for persons with benchmark disabilities in need of high support. Thus, the concept of benchmark disabilities has been adopted by the legislation bearing in mind specific provisions which are contained in the law for persons meeting this description. Chapter VII contains special provisions for persons with benchmark disabilities in need of high support. Thus, the concept of benchmark disabilities has been adopted by the legislation bearing in mind specific provisions which are contained in the law for persons meeting this description. It was observed that conflating the rights and entitlements which are inherent in persons with disabilities with the notion of benchmark disabilities does a disservice to the salutary purpose underlying the enactment of the 2016 RPwD Act. 9. In paragraphs 42 and 43 of the judgment, the Apex Court had occasion to explain the concept of equality and non-discrimination which is the fundamental postulate based on which the 2016 Act was enacted. It was observed as follows: 42. The fundamental postulate upon which the 2016 RPwD Act is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the Government to ensure that persons with disabilities enjoy: (i) the right to equality; (ii) a life with dignity and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognising a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfilment of the constitutional rights of persons with disabilities. 43. There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalised groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh vs. Union of India, (2016) 7 SCC 761 : (2016) 3 SCC (Civ) 551, noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognising the different needs of persons with disabilities, to pave the way for substantive equality. A.K. Sikri, J. stated in the above judgment: (SCC p. 793, Para 40) “40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.” (Emphasis supplied) 10. It was with a view to ensure that the legal entitlements set forth in the 2016 Act do not remain as a mere parchment that the Government has come out with Ext.R8(a) and R8(b) identifying the post to which persons like the petitioner can be accommodated. Ext.R8(a) is the list of common category posts which has been identified for persons with disability. Ext.R8(a) is the list of common category posts which has been identified for persons with disability. Insofar as Sweeper (Full time and Part-time) is concerned, Ext.R8(a) reads thus: 8 Sweeper (Full Time and Part Time) (1) Cleaning For Visually Low Vision Visual Assistive devices G.O. (P) No. 11/2009/SWD dated 10.02.2009 (2) Sweeping Impaired Moderate Visual Impairment 40-60% (Category III a, b, c) III a - 40% (3) Waste Disposal III b - 50% (4) Labour Works III c - 60% Deaf and Hard of Hearing HH LV Mild ID Moderate Hearing Aids, Assistive devices and/or Implantable devices Locomotor disability - Independent ambulation with functional both upper extremities and atleast one lower extremity Locomotor disability 40% to 60% (moderate disability) Mobility and adaptive devices Multiple Disability including the above identified combinations Visual assistive devices Mental Illness and Intellectual Disability Hearing aids, Assistive devices and/or Implantable Devices Mental Illness Mental Illness 40-70% (Moderate) Mobility and adaptive devices Intellectual IDD-IQ:55-69 Assistive Communication Devices Disability (VSNS) (50%) 11. Going by Ext.P9 certificate of disability issued in favour of the petitioner, it appears that the petitioner is suffering from intellectual Disability (Mild) IQ 64 and mental illness, the disability of which has been assessed as 45%. It is also stated therein that the petitioner had Psychosis which is now at remission. As per Ext.R8(a), a person with mental illness assessed between 40 to 70% is regarded as moderate and intellectual disability with IQ between 55-69 can be permitted to work as Sweeper Full-time and Part-time. The petitioner would fall into the permissible category. In that view of the matter, there cannot be any justification on the part of the respondents in not granting appointment to the petitioner. The 7th respondent has no case that Ext.P7 call letter was not issued to the petitioner or that there is no vacant post to be filled up by a person under the RPwD category. In that view of the matter, the petitioner is entitled to succeed in this writ petition. 12. The writ petition will stand allowed. The petitioner is entitled to be appointed to the post of Full Time/Part-time Sweeper in any of the vacancies in the schools managed by the 7th respondent. There will be a direction to the 7th respondent to appoint the petitioner in any of the above vacancies. 12. The writ petition will stand allowed. The petitioner is entitled to be appointed to the post of Full Time/Part-time Sweeper in any of the vacancies in the schools managed by the 7th respondent. There will be a direction to the 7th respondent to appoint the petitioner in any of the above vacancies. Orders shall be passed expeditiously, in any event, within a period of six weeks from the date of receipt of a copy of this judgment.