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The petitioners, therefore, filed Writ A No. 9794 of 2009 (Ajay Kumar Pandey and others Vs. State of U.P. and others) challenging the aforesaid selection on the ground that as the reservation to physically handicapped persons was not provided the entire selection stands vitiated.

In the aforesaid writ petition, along with the counter affidavit, a Government Order dated 07.05.1999 was brought on record which stated that in exercise of powers under Section 32 and 33 of the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 19951, on the posts of Sweeper reservation as per The U.P. Public Services (Reservation For Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 19932, as amended in 1997, is available to disabled persons but only to deaf and partial deaf persons. In other words, the said Government Order provides reservation to persons with hearing impairment but excludes persons with other disabilities from the ambit of the reservation on the posts of Sweeper.

The aforesaid writ petition was dismissed in view of the aforesaid Government Order holding that it does not provide for reservation to physically handicapped persons other than deaf and partially deaf persons and therefore the petitioners who are not deaf or partially deaf are not entitle to any benefit of such reservation.

The petitioners, for the first time, came to know of the Government Order dated 07.05.1999 through the above writ petition decided on 02.03.2012 and after legal consultation were advised to challenge the validity of the aforesaid Government Order.

We heard Sri Ram Janam Sahai, learned counsel holding brief of Sri Veer Singh appearing for the petitioners and Sri Pankaj Rai, Additional Chief Standing Counsel for the respondents.

The Advocate General had not appeared despite direction given earlier nor any reason for his absence was informed to the Court rather the Additional Chief Standing Counsel took the position to defend the aforesaid Government Order under challenge.

The short submission of learned counsel for the petitioners is that when under the Disabilities Act, 1995, disability has been defined to include not only hearing impairment but other forms of disabilities such as blindness, low vision, locomotor disability, etc. and the U.P. Reservation Act of 1993 provides for 1 percent horizontal reservation to the persons with locomotor disability or cerebral palsy. The impugned Government Order cannot take away the said right of reservation by confining the reservation to the persons with hearing impairment i.e. deaf or partial deaf persons only.

In response to the above argument, Sri Pankaj Rai, Additional Chief Standing Counsel submits that the State Government is competent to identify the posts on which reservation to disabled persons can be provided having regard to the nature of the work assigned to the post concerned in view of Section 32 and 33 of the Disabilities Act, 1995.

On the respective submissions of the parties, the sole question which arises in this petition is whether the Government Order dated 07.05.1999 is illegal and ultra-vires to the provisions of U.P. Reservation Act of 1993 and the Disabilities Act, 1995 inasmuch as it excludes the disabled persons other than with hearing impairment i.e. deaf and partial deaf from reservation available to disabled persons.