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5. The final selection list was announced on 16.10.2008 and all the 21 posts reserved for the persons with disability have not been filled up by disabled persons, but by several persons who are not fulfilling the requirements of the persons with disabilities have been selected in the said reserved category. It was submitted that only 20 posts were filled up by persons, who are disabled and one remaining post has been filled by appointing respondent No.3, who is a non-disabled person. The 1st respondent has stated that in the category of 2A/PH, as there was no candidate, who was both physically handicapped and from 2A category, the said post was filled up by a 2A category non-disabled person. As there are qualified physically handicapped candidates like the petitioner, the selection of respondent No.3 made by the 1st respondent/KPSC is illegal and in violation of the provisions of Section 36 of the above said Act.

Sl.No. Category Posts The notification clearly mentioned that only hearing impairment and locomotor candidates are eligible to apply for the post reserved under the disability category, which means the candidates with blind/visually impaired are not eligible to apply for the posts. It is also not in dispute that out 648 posts, 21 posts are reserved for persons with the said disability by providing reservation to different categories. In the present case, the petitioner belongs to 2B/PH category - physically handicapped locomotor category. In the marks list, his named is found at Sl.No.15. The person at Sl.No.11 was selected under 2B/PH category (physically handicapped category), who secured 70.11 marks and the petitioner got 67.76 marks. Admittedly, the name of respondent No.3 in the present writ petition is not at all found in the marks list nor does he belong to 2A/PH category, but he has been selected under reserved post of physically handicapped persons.

"26. The provision for adjustment of selected candidate to the caste/category to which he belongs has erroneously been construed as horizontal reservation being caste/category based. The vacancy for physically handicapped had to be worked out on total number of vacancies for which selection was being held and not by working out to the caste/category to which a candidate applying as physically handicapped belonged. The G.O. extracted earlier does not directly or indirectly provides that the vacancy for physically handicapped should be worked out caste/category wise. The allocation of one percent vacancy for different categories of physically handicapped could not form the basis for determining the percentage of reservation for physically disabled. The assumption made by the Commission that since the physically handicapped candidates had to be adjusted in the caste/category therefore the determination of vacancy had to be decided on the number of vacancies existing for a caste/category is unsound and against the principle of horizontal reservation as explained by the Apex Court. The Legislature did not permit working out percentage on vacancies of General, OBC or SC. It had to be three percent of the total vacancies and then the selected candidate had to be adjusted as provided in the G.O. to the caste/category to which the candidate belonged."(emphasis supplied)

26. For the first time, reservation was provided to physically handicapped candidates under the notification dated 14.8.2007. Undisputedly the petitioner herein was the highest scorer under the physically handicapped candidates, from among the failed candidates. All the 21 posts are reserved for hearing impairment and locomotor disability candidates. It is also not in dispute that the petitioner is the candidate with locomotor disability and is more meritorious (who has scored highest) in unsuccessful candidates.It is not in dispute that the third respondent is not the physically disabled candidate. All these facts clearly reveal that the post reserved for physically disabled candidate should have been given to the next best candidate under the very category of physically disabled, as per Section 33 read with Section 36 of the Act. In the first year of recruitment itself, it is not open for the State Government to shift the reserved post to unreserved candidate in physically handicapped category.