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WA.362/15 & connected cases 2 Thereafter, it is submitted that, by an addendum notification to the above ranked list, a supplementary list of persons included in selection who were eligible for reservation under the physically handicapped category was published. The petitioner was included in the list of physically handicapped candidates under the orthopaedic category at serial No.70. By Exhibit P5 Government Order dated 1.2.2010, 3% reservation to physically handicapped candidates in identified posts was extended to similar categories in the State Public Sector Undertakings and other autonomous institutions with effect from the date of the order. Though the KPSC had published Exhibit P3 supplementary list of physically handicapped persons, it was contended that the reservation to physically handicapped persons would be operated in respect of vacancies which arose after 1.2.2010 alone. Relying on the judgments of the Apex Court clarifying that reservation under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act') is not dependent on the identification of posts, the writ petitioner claimed reservation with effect from 1.1.1996. In the meanwhile, in answer to a query raised by the KPSC, the Government, by order dated 17.5.2011 clarified that 3% WA.362/15 & connected cases 3 vacancies reserved for physically handicapped persons is to be computed on the basis of the total number of vacancies reported on or after 1.1.2008, irrespective of the date of identification of posts as suitable for appointment of such persons. Accordingly, the Public Service Commission issued circulars identifying the vacancies available for physically handicapped persons from among the vacancies which arose during the period from 1.1.2008 to 31.1.2010 and these vacancies were filled up from Exhibit P3 list, following the ratio of 1:1:1 between blind, deaf and orthopaedically handicapped persons. Petitioner could not get advice, since he was included at serial No.70 and candidates in the orthopaedically handicapped category upto rank No.67 alone were advised. Therefore, he filed the writ petition contending that the Act having come into force in 1996, the 3% vacancies to be set apart for physically handicapped persons have to be worked out reckoning the vacancies which arose from the date of coming into force of the Act. Material was produced before the learned single Judge to show that 3106 vacancies had been filled up from earlier lists to the posts in question and no physically handicapped person was appointed. In the above circumstances, it was contended that the KPSC having been entrusted for WA.362/15 & connected cases 4 selection of candidates to these Companies and Corporations in the year 2004, the 3% reservation for physically handicapped persons has to be taken into account by reckoning all the vacancies earlier filled up from PSC lists as well as the vacancies reported to be filled up from Exhibit P1 list. As such, it is contended that 93 vacancies had to be filled up by appointing 31 candidates from each of the handicapped categories. If that were to be done, the petitioner would get appointment. Relying on the provisions of the Act as well as the judgment of the Apex Court on the point, the learned single Judge held that Exhibit P4, to the extent it restricts the benefit of 3% reservation to physically handicapped persons from 1.2.2010, is bad in law. It was declared that handicapped persons are entitled to get the 3% of vacancies in the post of Assistant Grade II/Clerk/Junior Clerk/LDC/Cashier from 1996 while making appointments to public sector undertakings and Government Companies. Respondents 4 to 7 were therefore directed to report all existing vacancies in the aforesaid cadre to enable the third respondent to advise candidates from Exhibit P3 list.

5. In these appeals, it is contended that entrustment of selection through KPSC was made only with effect from 1.1.2004 by Government Order dated 28.2.2007 and the turn of advice of the physically handicapped candidates was fixed by the WA.362/15 & connected cases 7 Government as Sl.Nos.33, 66 and 99 in a roster of 100 vacancies only by G.O.(P).No.46/2008/SWD dated 19.7.2008. The Government also by G.O.(Ms).No.29/11/SWD dated 7.5.2011 made it clear that 3% reservation of Physically handicapped candidates to be filled up from the ranked list of general recruitment may be worked out on the basis of total number of vacancies reported on or after 1.1.2008. Hence, turn of 3% reservation of physically handicapped persons i.e. Sl.Nos .33, 66 and 99 in cycle of 100 vacancies are to be calculated on the basis of number of vacancies reported after 1.1.2008. Hence, the 274 vacancies reported prior to 1.1.2008 could not be considered for advising physically handicapped candidates in the turn of Sl.Nos.33, 66 and 99 in cycle of 100 vacancies.

10. In National Federation of the Blind's case (supra) the three member Bench of the Honourable Supreme Court had analysed the statutory provisions and the case law on the issue of reservation of physically handicapped persons and held that communal reservation under Article 16 of the Constitution of India was vertical in nature while reservation for persons with disabilities is horizontal and cuts across the vertical reservation in what can be termed as interlocking reservation. Examining the Government orders and the office memoranda issued by the Union Government, the Apex Court came to the conclusion that reservation had to be worked out on the basis of the total number of vacancies available in a cadre and not against the identified posts. It was further held by the Apex court in paragraph 48 of the judgment as follows:

14. In view of the categoric findings of the Apex Court in the aforenoted and other judgments, the question whether reservation available to physically handicapped persons under the Act has to be computed on the basis of the vacancies which arose with effect from 1.1.1996 is no longer res integra. The Act having come into force with effect from 1.1.1996, reservation, which has been held to be not dependent on the identification of the posts would come into operation with effect from the date of the effect of the Act. At best, what can be contended is only that the reservation can be operated by the KPSC only with effect from the dates from which that authority was entrusted with the function of making selections and appointments to the public sector undertakings involved. Even if that be the case, if the vacancies which arose after the KPSC was entrusted with the function of making selections and appointments is considered, all the party WA.362/15 & connected cases 16 respondents would be entitled to succeed in their respective writ petitions. The vacancies earmarked for physically handicapped persons are therefore to be reckoned not with effect from the date of the Government Order identifying the posts or with effect from 1.1.2008, the date on which the Government directed by its clarificatory order that the reservation is to take effect, but with effect from 1.1.1996 or at least with effect from the date when the KPSC was entrusted with the selection and the number of vacancies as well as the quota and the rota available, would be capable of being ascertained. Looked at from this angle also, the judgments under appeal are perfectly in order and in strict conformity with the principles set out by the Apex Court in the matter of implementation of the reservation available to physically handicapped persons.