UNION OF INDIA A v.

SANJA Y KUMAR JAIN

AUGUST I I, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.) B

Service Law :

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; Proviso to Sub-section 2, Section 471 C Establishment Manual; Para J 89A :

Appointment to higher post by promotion denied on the ground that incumbent found medically unfit-Challenge to-Allowed by Central Administrative Tribunal holding that denial of promotion on ground of physical disability amounts to discrimination-Affirmed by High Court- D

On appeal, Held: In terms of Section 47(2) of the Act, promotion cannot be denied on grounds of disability-Proviso to the Section does not give unbridled power to Government to exclude any establishment from the application unless some specified circumstances exist and notification thereto issued-Since no such notification issued, denial of promotion on E ground of disability not justified.

Respondent-a G roup-C employee qualified in the written test for promotion to Group-B Post and was required to undergo medical examination and viva voce test before being promoted. However, he was found medically unfit. Therefore, he was not called for viva voce F test. Respondent challenged it by filing a petition before CAT. CAT held that denial of promotion on the ground of physical disability amounts to discrimination. Appellant-Union of India challenged the order, which was dismissed by th~ High Court. Hence the 1>resent appeal.

It was contended for the appellant that the appropriate Government could exclude by notification any establishment from protection to disabled as provided under the provisions of Section 47(2).

Dismissing the appeal, the Court

463 H

A HELD 1.1. Sub-!:ection (2) of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, in crystal clear terms, provides that no promotion shall be denied to a person merely on the ground of his disal?ility. Obviously, in the instant case, the respondent was not B considered for promotion on the ground that he was considered to be visually handicapped. Proviso to sub-section (2) of Section 47 of the Act only permits the appropriate Government to specify by Notification any establishment whkh may be exempted from the provisions of the Section. It does not givt~ unbridled power to the Government to exclude C any establishment from the purview of the Section, the exclusion can only be done under crtain specified circumstances. The notification can be issued when the: appropriate Government, having regard to the type of work carried on in any establishment thinks it appropriate to exempt such establishment from the said provisions. The proviso does not operate in the absence of the notification. (468-E-F-G-H; 469-8) D 1.2. The normal tilnction of a proviso it to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. When one finds a proviso to a S1!ction the natural presumption is that, but for E the proviso, the enacting part of the Section would have included the subject matter of the 1roviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of 01e main enactment and its effect is confined to thal case. It is a qualification of the preceding enactment which is F expressed in terms too general to be quite accurate. As a general rule, a proviso is added to :m enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. [469-A; D-El

Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash G Chandra Yograj Sinha, !\IR (1961) SC 1596; Calcutta Tramways Co. Ltd.

v. Corporation ofCalc11tta, AIR (1965) SC 1728; A.N. Sehgal & Ors. v.

Raje Ram Sheoram & Ors,, AIR (1991) SC 1406; Tribhovandas Haribhai Tamboli v. Gujarat R£'venue Tribunal & Ors., AIR (1991) SC 1538; Kera/a State Housing Board & Ors. v. Ramapriya Hotels (P) Ltd. & Ors,, H (19941 5 SCC 672 and Ali MK & Ors. v. State of Kera/a & Ors,, (2003)

U.O.l. v. S.K.JAIN [PASA YAT, J.]

4 SCALE 197, relied on.

West Derby Union v. Metropolitan Life Assurance Co., (1897) AC 647 HL; Forbes v. Git, (1922) I A.C. 256; R. v. Taunton, St. James, 9 B. & C. 836; Re Barker, 25 Q.B.D. 285 and Jennings v. Kelly, (1940) A.C. 206, referred to.

Coke upon Littleton 18th Edition, 146, referred to.

1.3. If a notification in terms of the proviso to sub-section (2) of Section 47 of the Act is issued by the appropriate Government the same shall be operative in respect of the establishment which is specifically C exempted. That is not the position so far as the present case is concerned. Therefore, on the facts of the case, the order of the Tribunal as affirmed by the High Court suffers from no infirmity to warrant interference by this Court. (470-F-G)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5178 of D 2004.

From the Judgment and Order dated 4.12.2002 of the Delhi High Court in W.P. No. 5898 of 2002.

M.N. Krishnamani, Hemant Sharma and Mrs. Anil Katiyar for the E Appellant.

Respondent-in-person.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. : Leave granted.

The Union oflndia calls in question legality of the judgment rendered by a Division Bench of the Delhi High Court dismissing the Writ Petition filed by it while affirming the decision rendered by Central Administrative Tribunal, Principal Bench, New Delhi (in short 'CAT').

Factual position in a nutshell is as follows:

The respondent while working in Group-C post of the Railways applied for promotion to Group-B post. He qualified in the written test and was directed to undergo medical examination as per para 53 l(b) of the H

SUFREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A Indian Railway Establishment Manual (in short the 'Establishment Manual').

In terms of the Railay Board's Circular dated 31.10.1991 passing of the medical test is .a requirement before the candidate is called for viva voce test. The respondent was found to be medically unfit as he was visually handicapped. His case is one of external squint with advanced petriritis B pigments on both the eyes. This is a disease which affects the eye-sight progress.ively. He w2s considered unfit as he may become visually handicapped in future. The respondent was therefore not called for viva voce test. He filed O.A. No. 439/2001 before the CAT challenging the order dated 20.9.2000 whereby it was indicated that he was not to be called for viva voce test as he had been declared medically unfit. The CAT after C hearing the parties c<me to hold that while <.:onsidering the case of the respondent (applican-: before it) the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short the 'Act') were not kept in view. CAT took note of the fact that a new paragraph l 89A was introduced in the Establishment D Manual which clearl:1 laid down that there shall not be discrimination in the matter of promoton merely on the ground of physical disability. The application was accordingly allowed by the CAT.

The Union of hdia questioned correctness of CA T's order by filing E a Writ Petition whicL was dismissed by the impugned judgment. The High Court took note of sub-Section (2) of Section 47 of the Act to hold that CA T's order is perfectly in order.

In support oft~1e appeal, it was contended by Mr. M.N. Krishnamani, learned senior coun~; el that while referring to sub-Section (2) Section 4 7 F of the Act both the CAT and the High Court overlooked the proviso to subsection (2) of Section 47 which permits the appropriate Government to exclude by notific<.tion any establishment from the provisions of the Section. According to him, looking at the nature of the duties which employees of Group-B have to undertake, a physically handicapped G person, more particularly, one who is visually handicapped will not be able to do justice to the work. The High Court and the CAT were not justified in granting relief to the respondent after he had failed in the medical test.

It was urged that the proviso makes it clear that in appropriate cases the protection provided by sub-Section (2) of Section 4 7 of the Act can be H denied and the case at hand is one of such .:ases.

The respondent who appeared in person submitted that the judgments A of both the CAT and the High Court do not suffer from any infirmity to warrant interference.

Since the controversy revolves around Section 47 of the Act, it would be appropriate to quote the provision which reads as follows:

"Section 47: Non-discrimination in Government employments-( I) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not C suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary D post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." F

The Act has been enacted, as the Preamble of the Act indicates, to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. In a meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific G Region, which was held at Beijing on !st to 5th December, 1992, a proclamation was adopted on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific Region. Our country is a signatory to the said prociamation. The proclamation was on the following lines: H

468 Sl, J, PREME COURT REPORTS [2004] SUPP. 3 S.C.R ..

A "To give ru11 effect to the proclamation it was felt necessary to enact a legislation to' provide for 1.he following matters:

(i) to spell out he responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, ducation, training, employment and rehabilitation of persons with disabilities;

(ii) to create barr er free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis nondisabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and

(vi) to make special provision of the integration of persons with disabilities nto the social mainstream."

Sub-Section (I) ofS<ction 47 in clear terms provides that there cannot be any discrimination in overnment employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his F service. Sub-section (2) is relevant for our purpose. It, in crystal clear terms, provides that no promotio1 shall be denied to a person merely on the ground of his disability. Obviously, in the instant case, the respondent was not considered for promotion on the ground of as he was considered to be visually handicapped. Much stress was laid by Mr. Krishmani on the proviso to sub-Section (2) of Section 47. The same is not in any way helpful G to further the case of the appellant. In fact it only permits the appropriate Government to specify by notification any establishment which may be exempted from the provisions of Section 47. It does not give unbridled power to exclude any establishment from the purview of Section 47. The exclusion can be only done under certain specified circumstances. They H are:

(i) issuance of a notification.

(ii) prescription of requisite conditions in the notification.

The notification can be issued when the appropriate Government, having regard to the type of work carried on in any establishment thinks B it appropriate to exempt such establishment from the provisions of Section

47. The proviso to sub-Section (2) thereof does not operate in the absence of the notification.

The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the C proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey, (1880) 5 QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR (1961) SC 1596 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, AIR ( 1965) SC 1728); when one finds a proviso to a D section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso.

The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding E enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur , in it you cannot derive these provisions by implication from a proviso." Said F Lord Watson in West Derby Union v. Metropolitan Life Assurance Co.

(1897) AC 647 (HL). Normally, a proviso does' not travel beyond the provision to which it is a proviso. It carves ouf'ltYt''l?Xtepiion to the main provision to which it hat been enacted as a proviso and to no other. (See A.N Sehgal and Ors. v. Raje RamSheoram and Ors., AIR (1991) SC 1406, G Tribhovandas Haribhai Tambo/i v. Gujarat Revenue Tribunal and Ors., AIR (1991) SC 1538 and Kera/a State Housing Board and Ors. v.

Ramapriya Hotels (P) Ltd. and Ors., [1994] 5 SCC 672).

"This word (proviso) hath divers operations. Sometime it worketh H

A a qualification or limitatbn; sometime a condition; and sometime a

covenant" (Coke upon Littleton 18th Edition, 146)

"If in a deed an earlier clause is followed by a later clause which destroys altogether the obi igation created by the earlier clause, the later B clause is to be rejected as repugnant, and the earlier clause prevails .... But if the later clause does not destroy but only qualifies the earlier, then the

two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (Per Lord Wrenbury in Forbes

v. Git, (1922) I A.C. 256).

C A statutory proviso " s something engrafted on a preceding enactment" (R. v. Taunton, St hmes, 9 B. & C. 836).

"The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord D Esher in Re Barker, 25 Q.B.D. 285).

A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly, (I 940) /\.C. 206).

The above position was noted in Ali MK. & Ors. v. State of Kera/a and Ors., (2003) 4 SCALE 197.

Though several documents were referred to contend that the intention F of the employer was to exclude certain establishments, a bare perusal thereof shows that they have no relevance and do not in any way fulfil the requirements of the proviso to Sub-section (2) of Section 47. It goes without saying that if a notification in this regard is issued by the appropriate Government the same shall be operative in respect of the establishment which is spec. ifically exempted. That is not the position so G far as the present case is concerned. Therefore, on the facts of the case, the order of the Tribunal as affirmed by the High Court by the impugned judgment suffers from no in'irmity to warrant our interference. The appeal fails and is accordingly dismissed with no order as to costs.

S.K.S.

Appeal dismissed.