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(emphasis supplied)

20. Reservation is provided by Section 34 of the RPwD Act to persons with benchmark disabilities. The said section reads as follows:

"34. 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 clause

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five 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:

34. Mr. Datar submits that the petitioner is not a "person with disability", as defined in Section 2(s), since the mental impairment with which the petitioner suffers cannot be categorised as "long term". Since the petitioner cannot be categorised as "a person with disability", he is not "a person with benchmark disability", as defined in Section 2(r), which is a sub-species of a person with disability.

35. Mr. Datar urges that in case the petitioner is allowed to avail of the reservation under Section 34 of the RPwD Act, sometime after his appointment, he would cease to be covered by the provisions of the RPwD Act since his mental disability/ impairment is only temporary in nature, or will fall below 40%. He also submits that in case the petitioner is allowed to avail of the reservation granted to candidates suffering from benchmark disability, it would deprive a deserving person, genuinely suffering with benchmark disability under the provisions of the RPwD Act, of getting appointed. Such appointment will defeat the purpose of the RPwD Act.

(2) Clause (ii) talks of persons with disability to mean a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.

(3) Lastly, Clause (iii) talks of a person with disability having high support needs means a person with benchmark disability certified under clause (a) of sub-section (2) of section 58 who needs high support.