JUDGMENT : The instant appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 10.12.2018 passed by learned Single Judge of this Court in W.P.(S) No.4251 of 2012 whereby and whereunder the writ petition has been dismissed declining to pass positive direction in favour of the writ petitioner for his appointment on the post of Post Graduate Teacher in the physically handicapped category. 2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The respondent authorities came out with an advertisement inviting applications for appointment on the post of Post Graduate Teachers in +2 Schools. The writ petitioner had applied under MBC category by specifically mentioning in the application form that he belongs to physically challenged category. The admit card was not issued on the ground that he was over-aged. Aggrieved thereof, he represented before State Disabled Commissioner, whereupon though admit card was issued but again in the admit card the Physically Handicapped category i.e. PH, in which the petitioner belongs was left out. However, the writ petitioner participated in the examination but when the result was published, the name of the petitioner was not found in the select list. However, the writ petitioner after downloading his result from the website, could be able to know that in Paper I, he has obtained 43.5 marks and in Paper II he has obtained 170 marks. Thereafter, the writ petitioner got information from enquiry that physically handicapped candidates having less than 170 marks have been appointed and the petitioner has been left out. The writ petitioner, in view of the aforesaid information, approached this Court by invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India seeking therein a direction upon the respondents to appoint the writ petitioner on the post of Post Graduate Teacher under PH category. The writ petitioner has taken the ground that even though the advertisement stipulates that there shall be 3% horizontal reservation for the physically challenged candidates and out of total 230 vacancies, 8 posts falls under the reserved category of physically handicapped. Further, the writ petitioner belongs to Most Backward Category and as per the averments made in the counter affidavit no candidate in MBC (PH) has been selected. Further, the writ petitioner belongs to Most Backward Category and as per the averments made in the counter affidavit no candidate in MBC (PH) has been selected. Therefore, in that view of the matter, direction has been sought for appointment of the writ petitioner under appropriate category. The respondents have taken the plea before the learned Single Judge that against total seats of 115 (non-teacher quota, in which, the petitioner belongs) 04 seats were reserved for disabled persons and they were offered appointments as per the details furnished in tabular form in the counter affidavit wherein 01 General candidate under PH category has been provided appointment who has got 248 marks. However, in the Backward Class 02 candidates under PH category have been provided appointment who have obtained 248 and 204 marks while in Schedule Tribe under PH category, 01 candidate has been provided appointment who has obtained 142 marks but the writ petitioner has secured 170 marks in paper-II and 43.5 marks in paper-I which was not adequate to secure position in the select list. Further ground has been taken that among these 04 seats, 02 seats were reserved for Visually Handicapped (VH) candidates, 01 seat was reserved for Hearing Handicapped (HH) candidate and 01 seat was reserved for Orthopedically Handicapped (OH) candidate and accordingly, 04 candidates were given appointment and they are now working. Besides the aforesaid issue, it has also been agitated that the writ petitioner has not made the candidates already selected as party respondent to the present proceeding. Learned Single Judge, after appreciating the rival submission advanced on behalf of the parties and considering the plea of the respondent State of Jharkhand to the effect that the writ petitioner since has not secured adequate marks among the handicapped candidates as also taking into consideration the stand of the respondent taken to the effect that out of these 04 seats, i.e., 02 seats reserved for VH candidates, 01 seat reserved for HH candidate and 01 seat reserved for OH candidate, and accordingly 04 candidates have been given appointment, has dismissed the writ petition which is the subject matter of the present intra-court appeal. 3. Mr. Manoj Tandon, learned counsel appearing for the appellant-writ petitioner, assisted by Mr. 3. Mr. Manoj Tandon, learned counsel appearing for the appellant-writ petitioner, assisted by Mr. Gautam Kumar Singh, has submitted that the impugned order suffers from patent illegality since the fact has not been considered in right perspective to the effect that under the MBC category, none of the PH candidate has been appointed and as such, the State authority has not considered the benefit to be given to the PH category under the MBC category to which the writ petitioner belongs. According to the learned counsel, since the provision to extend the benefit of reservation to the PH category is an statutory condition as per the provision made in Section 33 of the Persons with Disabilities Equal Opportunities, Protection Of Rights And Full Participation) Act, 1995 (hereinafter to be referred to as the Act, 1995, therefore, the same ought to have been considered by providing appointment by extending the benefit of reservation under the MBC category and having not done so, the entire selection process is illegal. Learned counsel, therefore, submits that the impugned order, in view of the aforesaid aspect of the matter, is not sustainable in the eyes of law. 4. Per contra, Mr. Anil Kumar, learned senior counsel, assisted by Mrs. Richa Sanchita, appearing for the respondent Jharkhand Academic Council, has submitted that it is incorrect on the part of the writ petitioner to take the plea that the benefit of reservation as per the Act, 1995 has not been followed. According to the learned senior counsel, the provision to extend the benefit of reservation under the Act, 1995 has been provided, as would appear from the stand taken by the Jharkhand Academic Council in the counter affidavit, wherein the inter se merit of the candidates under the PH category has been shown in the tabular chart which has been taken into consideration by the learned Single Judge and after taking it into consideration the learned Single Judge has come to conclusive finding that the writ petitioner since has got 170 marks in Paper-II and 43.5 marks in Paper-I which is lesser than the marks obtained by last selected candidate, has declined to pass positive direction in favour of the writ petitioner. Further, as would be evident from the column pertaining to educational qualification wherein the writ petitioner has not furnished his details thereof since, the column is unfilled. 5. Further, as would be evident from the column pertaining to educational qualification wherein the writ petitioner has not furnished his details thereof since, the column is unfilled. 5. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. 6. The undisputed fact in this case is that in pursuance to the advertisement published by the concerned respondent of the State Government, the writ petitioner made application for consideration of his candidature for appointment as Post Graduate Teachers in +2 Schools under the MBC category. The advertisement, appended as Annexure-1 to the writ petition, reflects that benefit of 3% horizontal reservation to the physically challenged candidate has been provided to be given. The writ petitioner participated in the process of selection in which he was not finally selected and, as such, being aggrieved thereof, he invoked the jurisdiction conferred to this Court under Article 226 of the Constitution of India by filing writ petition being W.P.(S) No.4251 of 2012, which having been dismissed, the present intra-court appeal has been filed. 7. The issue has been raised that the benefit of reservation to the physically handicapped candidates under the MBC category has not been given and, therefore, the statutory provision as contained under Section 33 of the Act, 1995 has not been followed and in that view of the matter, consideration ought to have been given by the learned Single Judge for appointment of the writ petitioner by giving the benefit of reservation to the physically challenged candidates under the MBC category. 8. This Court, before answering the aforesaid issue, deems it fit and proper to refer the provision of Section 33 of the Act, 1995, which reads as hereunder :- “33. 8. This Court, before answering the aforesaid issue, deems it fit and proper to refer the provision of Section 33 of the Act, 1995, which reads as hereunder :- “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) Loco motor 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.” It is evident from the provision of Section 33 of the Act, 1995 that the persons with disabilities is to be given the benefit of reservation preference wise, i.e., (i) Blindness or low vision; (ii) Hearing impairment; (iii) Loco motor disability or cerebral palsy, in the posts identified for each disability. 9. The learned Single Judge has gone into the contention of the respondent Jharkhand Academic Council by considering the counter affidavit filed on their behalf on 18.01.2013 in order to assess as to whether the benefit of 3% horizontal reservation under the PH category has been followed or not. The learned Single Judge after appreciating the specific stand taken in the counter affidavit as under paragraph 12, 13, 14 and 15, has dismissed the writ petition. 10. This Court, in order to consider the legality and propriety of the impugned order, deems it fit and proper to go across the aforesaid statements made under said paragraphs. It has been stated in paragraph 12 that in Hindi subject out of total available seats, 115 seats were reserved for the teachers of Secondary Schools of State of Jharkhand. The statement made under paragraph 13 wherein it has been stated that in rest 115 seats 3% reservation was available for physically challenged candidates which comes to 4 seats. It has been stated in paragraph 12 that in Hindi subject out of total available seats, 115 seats were reserved for the teachers of Secondary Schools of State of Jharkhand. The statement made under paragraph 13 wherein it has been stated that in rest 115 seats 3% reservation was available for physically challenged candidates which comes to 4 seats. In the statement made at paragraph 14, the details of 4 handicapped candidates have been referred, by way of tabular chart wherein 01 seat under General category, 02 seats under Backward Class category and 01 seat under Scheduled Tribe category, total 04 seats, have been earmarked for the physically handicapped candidates. The selected PH candidate under General category has obtained 248 marks, Backward Class candidates under PH category have obtained 248 and 204 marks while in Schedule Tribe under PH category, 01 candidate has obtained 142 marks. The tabular chart is quoted hereunder:- Sl. Class Seats Marks a. General 1 248 b. Backward class 2 248 204 c. Schedule tribe 1 142 It further appears from the statement made at paragraph 15 of the aforesaid counter affidavit wherein it has been stated that the writ petitioner has secured 170 marks in paper-II and 43.5 marks in paper-I which was not adequate to secure position in the select list under the PH category, therefore, he could not secure selection. 11. Mr. Tandon, learned counsel appearing for the appellant-writ petitioner, has submitted that the reservation under the Act, 1995 ought to have been followed category-wise and the seats ought to have been earmarked for the physically handicapped candidates under the MBC category. 12. This Court, in order to answer the aforesaid issue, is required to again deal with the provision of Section 33 of the Act, 1995 wherein it has been stated that the vacancies not less than 3% of the ‘total vacancy’ is to be earmarked for the physically handicapped candidates. The same is clear from the stipulation made under Section 33 that “in every establishment such percentage of vacancies not less than three per cent” is of paramount importance. In the given facts of the case the total vacancies i.e., 115, were reserved for the teachers of Plus Two schools and 3% thereof will be 04 seats. The same is clear from the stipulation made under Section 33 that “in every establishment such percentage of vacancies not less than three per cent” is of paramount importance. In the given facts of the case the total vacancies i.e., 115, were reserved for the teachers of Plus Two schools and 3% thereof will be 04 seats. The aforesaid aspect of the matter has been considered by Hon'ble Apex Court in Union of India and Another v. National Federation of the Blind and Others [ (2013) 10 SCC 772 ], wherein, the provision as contained under Section 33 of the Act, 1995 has been considered apart from the other statutory provisions. As per the discussion made about the aforesaid provision as under Paragraph 33 thereof, wherefrom it is evident that the said provision mandates every appropriate Government to appoint a minimum of 3% vacancies in its establishments for persons with disabilities. Further, the consideration has also been given to give benefit of reservation on priority basis i.e., to the extent of 1% to each class of persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy on the post identified for each disability. The Hon'ble Apex Court has also considered the mandate of the Government to appoint not less than 3% vacancies from the person or class of persons with disabilities or post in the establishment 1% each has to be given to each of the category i.e., blind or having low vision; (ii) hearing impaired; and (iii) locomotor disabled or having cerebral palsy separately as the number of appointment equivalent to 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The conclusion has been arrived at in the aforesaid judgment, as would appear from paragraph 52 thereof, wherein it has been laid down that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner, i.e., “computing 3% reservation on total number of vacancies in the cadre strength”. Paragraphs 33 and 52 of the aforesaid judgment read as hereunder :- “33. A perusal of Section 33 of the Act reveals that this section has been divided into three parts: 33.1. The first part is: “33. Paragraphs 33 and 52 of the aforesaid judgment read as hereunder :- “33. A perusal of Section 33 of the Act reveals that this section has been divided into three parts: 33.1. The first part is: “33. Reservation of posts.—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. 33.2. The second part of this section starts as follows: “… of which one per cent each shall be reserved for persons suffering from— (i) blindness or low vision; (ii) hearing impairment; and (iii) 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. 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. 33.3. The third part of the section is the proviso which reads thus: “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.” The proviso also justifies the abovesaid interpretation that the computation of reservation has to be against the total number of vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts. 52. Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz. “computing 3% reservation on total number of vacancies in the cadre strength “which is the intention of the legislature. 52. Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz. “computing 3% reservation on total number of vacancies in the cadre strength “which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29-12-2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new office memorandum(s) consistent with the decision rendered by this Court.” 13. It is evident from Section 33 of the Act, 1995 as has been interpreted by Hon'ble Apex Court in the aforesaid judgment that the computation of 3% reservation is required to be based on total number of vacancies in the cadre strength. Herein, as would be evident from the pleading made in the counter affidavit that the total strength of the teachers belonging to the Secondary School comes to 115 and, therefore, if the selecting agency has computed the extent of reservation to be provided to the physically handicapped candidates by taking the total cadre strength of 115, 3% of the same will come to 04 seats as would appear from the tabular chart referred hereinabove. It also appears that by following the preference to be given to the physically handicapped candidates as per the priority stipulated under Section 33, i.e., (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy and by taking the same, appointment has been made. The writ petitioner is raising the question that the benefit of reservation ought to have been extended in favour of the physically handicapped candidates based upon the category, but the learned Single Judge has dismissed the writ petition after taking into consideration the stand taken in the counter affidavit, wherein it has been stated that 3% of the total cadre strength has been earmarked for the physically handicapped candidates and as per the preference stipulated under Section 33 of the Act, 1995, the appointment has been provided based upon the merit position of one or the other physically handicapped candidates, but the writ petitioner has not obtained the marks at par with the last selected candidate under the physically handicapped category and, as such, he has not been provided appointment. 14. 14. This Court, therefore, has found from the factual aspect that the writ petitioner is having no case on merit, due to the reason that the writ petitioner is having locomotor disability and as such, he comes under the 3rd preference as per the provision made under Section 33 of the Act, 1995. Secondly, the writ petitioner has secured lesser marks than the last selected candidate under the physically handicapped category (3rd preference). Thirdly, the contention of the writ petitioner that his marks ought to have been considered under the MBC category but that is not the correct position of law as per the discussion made hereinabove taking into consideration the word referred in Section 33 of the Act, 1995 wherein it has been referred that “not less than 3% vacancies is to be earmarked for the physically handicapped candidates”. Here, the selecting agency has earmarked 04 seats by taking 3% of the total vacancies, i.e., of 115 posts. 15. This Court, after discussing the legal as well as factual position, is of the considered view that the learned Single Judge, since had declined to pass positive direction in favour of the writ petitioner, that according to our considered view, cannot be faulted with. 16. Accordingly, the instant appeal fails and is dismissed. 17. The office is directed to return the original record to Mrs. Richa Sanchita, learned counsel appearing for the Jharkhand Academic Council forthwith.