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(d) Sub-section (4) shall be omitted;
(e) for Sub-section (5), the following sub-section shall be substituted, namely:
(5) Where, due to non-availability of suitable candidates, any of the vacancies reserved under Sub-section (1) remains unfilled it shall be carried over to the next recruitment.

16. From the amendment introduced by U.P. Act No. 6 of 1997 it appears obvious that the State in keeping with the Central enactment provided reservation for physically handicapped incorporating the provision of one percent for each category of physically handicapped. Even though the State Act has not specifically provided that three percent of the vacancies shall be reserved for physically handicapped but the two enactments the Central and State dealing with the same subject and the Central Act having directed every appropriate government to provide not less than three percent for physically handicapped, the State enactment has to be read as providing three percent reservation for physically handicapped. In U.P. Act No. 4 of 1993 the State had provided for reservation of five percent vacancies to physically handicapped, dependants of freedom fighters and ex-servicemen. No separate percentage was reserved for different class nor any category of handicapped was mentioned. But after the Central enactment it became necessary to provide not less than three percent for physically handicapped, therefore, the State Legislature while providing for reservation to physically handicapped fell in line with the Central enactment both in percentage of reservation for physically handicapped and for categorising them. Section 3 was substituted by providing separately for dependants of freedom fighters and ex-servicemen in Sub-section (i) of Section 3(1) and for physically handicapped in Sub-section (ii) of Section 3(1).

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20. The aforesaid advertisement, thus, provided reservation for physically handicapped candidates in accordance with law and orders issued by the Government. But what the Commission did was to completely ignore the law. In paragraph 9 of the counter affidavit extracted earlier it is stated that no post was reserved for physically handicapped in the advertisement. The counter affidavit was sworn by Deputy Director Higher Education Commission. He must be a senior officer who must have been aware of his responsibilities. The averment is contrary to the advertisement which clearly provided that reservation to physically handicapped etc. would be provided in accordance with law and government orders issued from time to time. The law has been explained above. If the law would have been applied the Commission would have made selection for physically handicapped. It could not take cover under the plea that no post was reserved for physically handicapped. It was not open to the Commission to ignore the law. The vacancy for physically handicapped was not required to be notified. It was not vertical reservation. The reservation for physically handicapped was to be provided as a matter of law.

21. The next question is how the vacancy for physically handicapped had to be worked out. This was subject matter of vehement argument by learned Counsel for the respondents. From the counter affidavit filed by the respondents it is quite clear that the Commission and the State were of the opinion that no vacancy having been reserved for physically handicapped there was no question of considering the petitioner as one of the candidate for the same. It was only in the alternative it was stated that even assuming that the physically handicapped was entitled for reservation then the petitioner being a candidate of General category and there being only 21 vacancies in General category, 3% of 21 being less than 0.5, the petitioner was not entitled to it. Both assumptions are founded on complete misapprehension about the policy of reservation. We have explained that vacancy for physically handicapped was not necessary to be notified. It was to be considered as a matter of law. As regards working out of the vacancy it may be mentioned that horizontal reservations are not caste/category based. They are class based. The reservation for the class of physically handicapped is three percent. They being unfortunate persons have been treated as a different class which needed legislative protection. It is to bring them in social stream by making them feel positive. The endeavour is to wipe out the inequality in social participation by those who are not so fortunate. The reservation is for a class of persons who satisfy the disabilities mentioned in Section 3(1)(ii) of the U.P. Act No. 4 of 1993 as amended from time to time. The categorisation is to specify the disability which would enable a person to claim the benefit. The Legislative intent appears to make the category exhaustive. It is only those persons who suffer from the disability mentioned in the section who are entitled to claim reservation. The extent of protection has been determined by Central Legislature by directing that it should not be less than three percent. Who would be entitled for such benefit is mentioned and one percent has been marked for each category of disability. Therefore reservation for physically handicapped has to be worked out on three percent at the stage of direct reservation in public services and posts in connection with the affairs of the State. The allocation of one percent each to different category of disability is to avoid undue benefit of reservation to one or the other category. That cannot be the yardstick for determining percentage of reservation. The provision providing for reservation for physically handicapped by the State has to be read and understood as three percent. Any other interpretation may result in creating conflict in the Central and State legislation. We reach the same conclusion even if Section 3(1)(ii) of the U.P. Act No. 4 of 1993 is read on its own. It provides one percent reservation to three categories of physically handicapped. Therefore, the total reservation for physically handicapped comes to three percent. The allocation of one percent to each category, had to be totalled to arrive at the percentage of reservation for the class of physically handicapped. The allocation or bifurcation of vacancies to different categories of handicap cannot reduce the percentage of reservation for physically handicapped. Any other construction would result in reducing reservation to 1 per cent to three categories mentioned in Section 3(1) (K) instead of it being 3% for physically handicapped.

27. The next question which according to us is very important is whether after working out 3% reservation quota for physically handicapped candidates, if only one vacancy is available then it would go to which of the handicap category? The U.P. Act was amended in 1997 and 1999, but so far as the reservation to physically handicapped candidates are concerned, it remained the same, 1% for each category of physical disability. In the U.P. Act instead of mentioning 3% the words used are 1% vacancy each for the person suffering from the aforesaid three categories of physical disability. On the strength of bifurcation in the percentage of reservation the learned Counsel for the respondents has vehemently urged that under the U.P. Act 1% has to be given to each of the aforesaid categories and that can be possible only when three hundred vacancies are available. According to the learned Counsel, if 3 vacancies are available then only one vacancy each can be given to all the aforesaid three categories. Similarly, if the vacancies are 200 then 2 vacancies can be given to the first two categories of physically handicapped and if there are 100 or less than 100 but 50 or more vacancies then only one vacancy could be reserved for the first category of physically handicapped and if no candidate of first category of physically handicapped is available then the vacancy has to be carried forward to be filled in the next selection. The argument is in two parts, one that 3% vacancy can be worked out only if there were 300 vacancies and the second that even if only one vacancy is worked out for physically handicapped then the same could be offered to the first category and if no candidate of that category is available it could be carried forward but it cannot not be offered to candidate of second or third category. Both the arguments are without any merits. It is in teeth of statutory provisions. Horizontal reservation for physically handicapped candidates is a beneficial piece of legislation. It is in pursuance of commitment for social and equitable participation of physically handicapped. If the submission of learned Counsel for Commission is accepted it shall render the provisions of reservation for physically handicapped otiose. Its interpretation should not be narrow. It should be interpreted in such a manner that the benefit extended to disabled category reaches them. While interpreting it, it has to be kept in mind that the benefit extended by the legislature should reach the disabled, therefore, wider and harmonious construction of the provisions of the Act has to be made to ensure justice to this deprived section of the society. If the argument of the learned Counsel for the respondents is accepted then it will defeat the objective of horizontal reservation for physically handicapped persons.