On acquiring disability, last drawn pay of the employee shall be protected- Allahabad HC

Court: High Court of Judicature at Allahabad

Bench: Hon. Dr. B.S. Chauhan, J. and  Hon. Dilip Gupta, J.

Case No: Civil Misc. Writ Petition No. 2229 of 2004

Caste Title: Union of India & Ors,.  Vs. Mohd. Mobin Khan & Anr.

JUDGEMENT

Bench:
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.

This writ petition has been filed for quashing the order dated 30th April, 2003 passed by the Central Administrative Tribunal in Original Application No. 164 of 1999 filed by Mohd. Mobin Khan (hereinafter referred to as the ''Applicant'). The Original Application had been filed for quashing the order dated 1st February, 1999 by which the applicant was given compulsory retirement under Rule 38 of CCS (Pension) Rules on the ground of disability and a direction was also sought to appoint the applicant in the same pay-scale as Assistant Foreman or Store Superintendent.

The applicant was initially appointed as an ad hoc Helper in October, 1969 under the Central Ground Water Board Division-III Varanasi. He was subsequently regularized and was granted promotions from time to time. While he was holding the post of DCM at Varanasi, he met with an accident on 21st February, 1995 as a result of which he was hospitalized. His left leg was amputated and he also lost vision in the right eye. He was ultimately discharged from the hospital on 3rd August, 1996 with a fitness certificate for doing light duty and sitting job. He was also referred to the Chief Medical Officer of the S.S.P.G. Hospital Varanasi by the employees for medical examination. The Medical Board of the said Hospital issued a certificate dated 23rd October, 1997 that the applicant was fit to perform duties like writing, maintenance of submission of report, maintenance of log books and store account books etc. The Department considered the case of the applicant and retained him in service on clerical post in the grade of LDC only. The terms indicated in the letter dated 5.1.1998 are as follows:-

"Shri Mobin Khan, DCM of this Division has been declared unfit for technical work by the medical authority. However, his case has been considered sympathetically by the competent authority of the Board to be retained in service on Clerical post in the grade of L.D.C. only.

"Shri Khan is directed to submit his willingness for appointment to the post of L.D.C. subject to the following conditions:-

1. He will be treated as a fresh recruit.

2. He will be treated as a junior person in the grade of L.D.C.

3. His past services will be counted for pensionery and allied benefits.

His willingness for the post of LDC must reach the office of the undersigned within seven days from the receipt of this O.M.

Further, in the event of his unwillingness for the post of LDC, he can not be continued in the post of DCM and he will have to be retired from Govt. service on invalid pension."

The applicant joined as LDC but made a representation to the Authorities to protect his pay by retaining him in service as Store Superintendent/Store Foreman on the ground that he was educationally and otherwise competent to hold that post. However by the letter 21st July 1998, the applicant was informed that his pay cannot be protected and if he did not accept the terms indicated in the letter he would be retired on ground of disability. The applicant again made a request for pay protection so that he could support his family but the Department issued the order dated 1st February, 1999 by which applicant DCM was retired from Central Ground Board Division-III Varanasi, under Rule 38 CCS (Pension) Rules as he failed to accept the post of LDC.

It is this order that was challenged by the applicant before the Tribunal with a prayer for a further direction for pay protection. The Tribunal by means of the impugned judgment quashed the order dated 1st February, 1999 and issued the following directions:-

(i) The applicant will be reinstated as LDC in case he gives his willingness within a month of the communication of this order protecting his last pay drawn by grant of personal pay.

(ii) In case the applicant gives his willingness and joins as LDC the applicant shall be entitled for 50% of the wages for the period from 01.02.1999 to the date of reinstatement. Such pay shall be granted after deducting the pension and other allowances already drawn. The period referred to above shall be counted for pension purposes.

(iii) The post retiral benefits already granted to the applicant in the shape of D.C.R.G., leave encashment etc., shall be adjusted from the post retiral benefits which would accrue to the applicant at the time of his superannuation.

We have heard Sri Bhoopendra Nath Singh, learned counsel for the petitioners and Sri N.A. Khan, learned counsel appearing for the respondents.

Learned counsel for the petitioners submitted that last pay of the applicant cannot be protected in view of the provisions of Rule 22 of the Fundamental Rules and, therefore, the directions issued by the Tribunal were bad in law. He further submitted that the injury had not been caused to the applicant "during the course of employment" and, therefore, there was no obligation on the part of the petitioners to engage the applicant or protect his pay and that the order of retirement was justified as the applicant did not accept the terms as were required under the communication dated 21st July, 1998. Another submission was made that as the petitioner had received compensation for the loss suffered on account of accident as per the order of the Compensation Commissioner, Varanasi, the order of the Tribunal was not justified.

Learned counsel appearing for the applicant/respondent, however submitted that there was no infirmity in the judgment of the Tribunal and in any view of the matter the last pay paid to the petitioner had to be protected in view of the provisions of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ''Disabilities Act'). He further submitted that the applicant had suffered injury during the course of employment and that Rule 22 of the Fundamental Rules or the receipt of any compensation under the Workmen Compensation Act cannot debar the applicant from claiming the relief under Section 47 of the Disabilities Act.

We have carefully considered the averments advanced by the learned counsel for the parties and have perused the materials available on record.

A perusal of the Original Application filed by the applicant before the Tribunal indicates that the work of the applicant related to field work and on 21st February, 1995 after completing the tubewell work, the applicant with his companion was returning back in a truck when unfortunately the accident took place and he was admitted in the Hospital. It was on 3rd of August, 1996 that he was discharged and a fitness certificate was given to him. The applicant was also ordered to be examined by the Chief Medical Officer who had also issued the certificate. It is on a consideration of these reports that the applicant was retained in service on the clerical post in the grade of LDC subject to certain conditions and when the applicant insisted that he should be retained as Store Superintendent/Store Foreman and his pay should be protected, he was retired from service w.e.f. 1st February, 1999.

It is true that persons with disability can now avail of the benefits provided under the Disabilities Act but even prior to its enforcement with effect from 1st January 1996, the Constitution provided remedy and relief to the persons with disability when their rights were violated or denied.

The fundamental right to equality under Article 14 of the Constitution of India which states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India", is important for this purpose. It implies that only equals must be treated as equals and unequals may not be treated as equals which makes it the constitutional responsibility of the State to ensure that the systemic and historical conditions of disadvantaged classes of persons are taken into account in providing equal status and equal opportunities. Simply put, this notion of equality means that the laws may not have universal application for all persons who are not by nature, attainment, historical reasons or any other circumstance, in the same position and hence, the varying needs of different classes of persons may require separate treatment - the only condition being that the classification for separate treatment should be rational and must further the objective of that law and be linked with it. The right of the persons with disabilities, against any discrimination, which is on the basis of disability of the person, is therefore, within this mandate of Right to Equality under Article 14 of the Constitution of India. It is under this constitutional mandate of equality that even before the Disability Statutes were passed, many persons with disabilities, their organizations or petitioners in public interest approached the Courts for their right to equality and right against arbitrary discrimination.

To illustrate, we may refer to the decision of Hon'ble Supreme Court in National Federation of Blind Vs. Union Public Service Commission, AIR 1993 SC 1916. The Writ Petition was filed against discrimination of visually impaired persons in competing for the coveted civil services of the country, and for the government to be directed to permit otherwise qualified blind candidates to appear in the selection examination. The Supreme Court not only allowed the petition, but also directed the government to allow them to write the examination in Braille or with the help of a scribe. The Supreme Court also responded to the Writ Petitions filed under Article 32 of the Constitution of India, against the treatment meted out to persons with mental disabilities in institutions for their care and treatment and laid down guidelines on their living conditions, education, training and rehabilitation facilities in such institutions. In this connection, reference may be made to the following decisions: Rakesh Chandra Narayan Vs. State of Bihar, AIR 1989 SC 348, B.R. Kapoor Vs. Union of India, AIR 190 SC 662; Veena Sethi Vs. State of Bihar & Ors,. (1982) 2 SCC 5833 and Sheela Barse Vs. Union of India (1993) 4 SCC 204.

Article 21 of the Constitution also protects the rights to livelihood as an integral facet of right to life and persons with disability were given protection under this Article of the Constitution. In this context reference may be made to the famous case of Narendra Kumar Chandla Vs. State of Haryana & Ors,. (1994) 4 SCC 460 which was decided by the Hon'ble Supreme Court prior to the enforcement of the Disabilities Act. This was a case of a Sub-Station Attendant of the Haryana State Electricity Board in the pay scale of Rs.1400-2300 who unfortunately had to be operated in Tata Memorial Hospital, Bombay and was thereafter discharged but his right arm was completely amputated. The Electricity Board absorbed him as Carrier Attendant in the lesser pay scale of Rs.825-1300. Feeling dissatisfied, he approached the High Court but his petition was dismissed. The Supreme Court while granting relief of protection of last pay scale observed :-

"Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as an LDC. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs. 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs. 1400-2300 and direct to pay all the arrears of salary." (emphasis supplied)

We must make reference to two other cases of the Hon'ble Supreme Court delivered prior to the enforcement of the Disabilities Act. In Anand Bihari & Ors. Vs. Rajasthan State Road Transport Corporation, Jaipur & Anr., AIR 1991 SC 1003, the Hon'ble Supreme Court examined the question whether a State Road Transport Corporation can retire the bus drivers on the ground of their defective or sub-normal eyesight developed during the course of the employment. The Court held that termination of service was unjustified, inequitable and discriminatory. It was impressed by the Supreme Court that service conditions of the bus drivers must provide adequate safeguards since such bus drivers developed defective eyesight or sub-normal eyesight because of the occupational hazards. A scheme was directed to be framed for providing alternative jobs along with the retirement benefits and for payment of additional compensation proportionate to the length of service rendered by them, in case of non-availability of jobs.

In the case of Rameshwar Dass & Anr. Vs. State of Haryana & Ors., (1995) 3 SC 285, the Supreme Court while considering the aforesaid judgment delivered in the case of Anand Bihari (supra) observed as follows :-

"It appears that some of the appellants suffered serious injuries during the course of their employment which incapacitated them from performing their duties. Initially, they were transferred to lighter duties, but while they were working on those posts, they were retired from service on the ground that they were medically unfit. From the written submission filed on behalf of the respondents before the High Court, it appears that the terminal benefits have been paid to them. If the judgment of this Court in Anand Bihar Vs. Rajasthan State Road Transport Corpn. (1991) 1 SCC 731, is read in its proper context and spirit, then it has to be held that this Court impressed on the State Road Transport Corporation to first provide for alternative jobs to such drivers who have become medically unfit for heavy vehicles. A direction for payment of additional compensation was given only when it is not possible at all in the existing circumstances to provide alternative jobs to such drivers. It need not be pointed out that the authorities of the Corporation should not take recourse only to the payment of the additional compensation without first examining whether such drivers could be put on alternative jobs.

Taking all facts and circumstances into consideration, we direct the respondents to apply their mind properly to the question whether the appellants who have suffered injuries and have become medically unfit can be put to some alternative jobs by way of rehabilitation. The question of payment for additional compensation will arise only when it is not possible to provide alternative jobs to them or some of them."

We may also mention that the First International Forum for Universal Declaration of Human Rights proclaimed by the United Nations General Assembly is a landmark, for Article 25 of the Declaration states that each person has, "the right to security in the event of unemployment, sickness, disability, widowhood, old age, and other lack of livelihood in the circumstances beyond his control. In the year 1971, the General Assembly stipulated that mentally retarded persons be accorded the same rights as other human beings, as well as special rights corresponding to their needs in the medical, educational and social fields; and in 1975 the General Assembly adopted the "Declaration on the Rights of Disabled Persons" which proclaimed equal civil and political rights of disabled persons, and the subsequent adoption of the standard Rules in the equalization of opportunities for Persons with Disabilities in 1993 served as an instrument for policy making and a basis for technical and economic cooperation. The evaluation of these international standards relating specifically to disability reflects on the move to place the rights of persons with disabilities within the category of Universal Human Rights.

It was also realised that the disabled need adequate protection through appropriate Legislation. A meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 was then convened by the Economic and Social Commission for Asian and Pacific Region. It was held at Beijing on 1st to 5th December, 1992 and it adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India was a signatory to this promulgation and accordingly the Bill was introduced for this purpose and ultimately the Disabilities Act was enacted.

The Statement of object and reasons to the Disabilities Act which was appended to the Bill reads as under:-

"The 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 Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following :-

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

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

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis, non-disabled 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 equalisation of opportunities for persons with disabilities; and

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

Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with Disabilities at the Central level and Commissioners for Persons with Disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged."

The Disabilities Act deals with prevention of early detection of disabilities, education, employment, affirmative action, non-discrimination, research and manpower development, recommendation of institutions for persons with disabilities, institutions for persons with severe disabilities, social security and other miscellaneous provisions.

Section 47 of the Disabilities Act which is relevant for the purpose of deciding this petition is quoted below:-

" Non-discrimination in Government employment.- (1) 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 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 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."

Section 2(k) defines the ''Establishment' to mean a Corporation established by or under a Central Provincial or State, or an authority, or a body owned or controlled or aided by the Government, or a local authority or as defined in Section 167 of the Companies Act, 1956 and it includes departments of a Government. Section 2(i) defines ''disability' to mean blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. "Person with disability" has also been defined to mean a person suffering not less than 40% of any disability as certified by a Medical Authority.

It has not been disputed by the learned counsel for the petitioners that the Central Ground Water Board Division is an ''establishment' and that the applicant had acquired disability. The provisions of Section 47 of the Disabilities Act are, therefore, clearly applicable. It provides that no establishment shall dispense with or reduce in rank an employee who acquires disability during his service, provided that, if an employee, after acquiring disability is not suitable for the post he was holding, then he can be shifted to some other post with the same pay scale and service benefits. The intention of Section 47 of the Disabilities Act is very loud and clear that the service of a person who acquires disability during service should not be dispensed with. The purpose is not far to seek as when the objective of the enactment is to provide proper and adequate opportunities to the disabled in the field of education, employment etc., it is obvious that those who are already in employment should not be uprooted merely because they have incurred disability during service. Their service has to be protected if they acquire disability.

Section 47 of the Disabilities Act was comprehensively analysed by the Hon'ble Supreme Court in Kunal Singh Vs. Union of India & Anr. AIR 2003 SC 1623 and it was observed as follows:-

"Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. (emphasis supplied)

The same view was reiterated by the Supreme Court in Union of India Vs. Sanjay Kumar Jain 2004 AIR SCW 4577 wherein it was held as follows:-

"Sub-section (1) of Section 47 in clear terms provides that there cannot be any discrimination in Government employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his service.

It is, therefore, clear that a person who has acquired disability during his service is sought to be specifically protected under Section 47 of the Disabilities Act, the language of which is clearly mandatory in nature. It is a piece of social beneficial enactment giving the disabled persons equal opportunities, protection of rights and full participation. It can be said that it provides succor to the needy.

We must also not forget that each year 3rd December is celebrated as International Day of Disabled Persons. On 3rd December, 1999, Ministry of Social Justice and Empowerment, Government of India, came out with its policy decisions and welfare measures taken to assuage the feelings of disabled persons. These messages reflect the commitment of Government to strive for the betterment of the disabled persons. It was widely accepted that disabled persons needed to be treated as valued member of the society who can contribute to the development and progress of the country and that they do not need our sympathy or pity but an opportunity to employment. In fact 2002 was declared as the year for the disabled.

It is in the light of the aforesaid observations that we have to examine the contentions advanced by the learned counsel for the parties.

Learned counsel for the petitioners contended that in view of the provisions of Rule 22 of the Fundamental Rules and also in view of the fact that the applicant had received compensation for the loss suffered, there was no occasion to protect his pay. In effect what is sought to be contended is that the applicant had been given advance increment for the number of years of service rendered on the post of DCM while fixing his pay in the grade of LDC as provided for in Fundamental Rule 22 and the said pay could not under any circumstances, exceed the maximum of the scale for the post of LDC. It was, therefore, not possible to place the applicant in the pay scale of DCM.

We shall first deal with the submission relating to payment of compensation. The Hon'ble Supreme Court in the case of Kunal Singh (supra) held that mere grant of invalidity pension cannot be made a ground to deny protection given under Section 47 of the Disabilities Act. It was observed as follows:-

"We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS (Pension) Rules. The Act is a special legislation dealing with persons with disabilities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads :-

72, Act to be in addition to and not in derogation of any other law. -- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities.

Merely because under Rule 38 of CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, which ever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provision of Section 47 of the Act." (emphasis supplied).

The Hon'ble Supreme Court in Kunwar Pal Singh Vs. Delhi Transport Corporation & Ors. Civil Appeal No. 1864/2000 arising out of SLP (C) 7997/99 observed as follows:-

"Learned counsel for the appellant has brought to our attention Section 47 of the Persons with Disabilities (Equal Opportunities etc.) Act, 1995.

Having heard the learned counsel for the parties, we are of the opinion that it is the duty of respondent No.1 to employ the appellant in Class IV post. If no such post exists, then by virtue of Section 47 of the said Act, a supernumerary post shall be created within eight weeks from today and employment given to the appellant with such measures of relief as the appellant with such measures of relief as the appellant may be entitled to."

The Delhi High Court, in Writ Petition No. 5503 of 1999 decided on 13.8.2002 (Shri Dharambir Swaroop Vs. Delhi Transport Corporation), in view of the aforesaid decision of the Supreme Court, observed that it was no more open for the respondent to contend that as the workman had been paid compensation on medical ground and compensation on the ground of disablement, the petitioner was not entitled to reinstatement in view of the specific provision of Section 47 of the Disabilities Act and that even if the above amount was paid under the scheme, the petitioner would be entitled for reinstatement.

We, therefore, do not find any merit in the contentions advanced on behalf of the petitioners that as the applicant had received compensation under the Workmen Compensation Act, there was no occasion for the petitioners to protect his pay.

We are also of the opinion that the conditions stipulated in Rule 22 of the Fundamental Rules cannot deprive the petitioner of his legitimate claim for protection of the last pay drawn by him as DCM. The Hon'ble Supreme Court in the case of Kunal Singh (supra) after noticing the provisions of Section 72 of the Disabilities Act had clearly observed that the Disabilities Act was a special legislation dealing with the persons with disabilities, protection of rights and full participation to them. Thus, in our view the provisions of Section 47 will clearly override Rule 22 of the Fundamental Rules. In this view of the matter, the contention raised by the learned counsel for the petitioners that as the applicant had been given the advance increments taking into consideration the number of years of service rendered on the post of DCM, the protection of last pay cannot be given has to be rejected. This would not only be in conformity with the provisions of Section 47 of the Disabilities Act but would also be in accordance with the decisions of the Supreme Court, to which we have referred above, rendered prior to the enforcement of the Disabilities Act wherein such applicants were clearly entitled to protection of the last pay drawn.

There is, therefore, no infirmity in the order of the Tribunal granting protection of the last pay drawn by the appellant as DCM even though he was continued as LDC.

The learned counsel for the petitioners also very feebly submitted that the Tribunal was not justified in quashing the retirement order. In our considered opinion, this contention is dependent upon the fact whether the applicant was entitled to the protection of the last pay drawn by him as DCM as the applicant had been retired merely on the ground that he insisted upon protection of his last pay. The records clearly reveal that after receipt of the communication dated 5th January, 1998, the applicant joined as LDC but had made a detailed representation to the authorities to protect his pay by retaining him in service as Store Superintendent/Store Foreman and even when he was informed by the authorities by the letter dated 21st July, 1998 that his pay cannot be protected, the applicant again made a request for protection of pay so that he could support his family but the department issued the order dated 1st February, 1999 by which the applicant was retired. We have upheld the order of the Tribunal granting pay protection to the applicant and, therefore, this submission of the learned counsel for the petitioners cannot be accepted as the applicant had merely been insisting for grant of benefits due to him in law.

Learned counsel for the petitioners then contended that the applicant was not entitled to any relief as he had not suffered the injury ''during the course of employment'. This contention cannot be accepted. In the first instance such a plea was not raised before the Tribunal and nor has such a ground been taken in the petition and it is only during the course of the argument that such a plea has been taken. A perusal of the Original Application filed by the petitioners before the Tribunal, however, clearly shows that after completing the tubewell work, the petitioner met with the accident when he was returning back. Thus, it cannot be said that the injury was not caused ''during the course of employment'.

Even otherwise, we are unable to accept such a contention because if we agree to the submission of the learned counsel for the petitioners that ''during his service' has to be read or be substituted by ''during the course of his employment' then the Court will be substituting the words which the Legislature in its wisdom has not used in the section. The Legislature has consciously used the word ''disability during his service' in Section 47 of the Disabilities Act and has not defined that the disability must be one which should occur ''during the course of employment'. We are, therefore, of the considered opinion that Section 47 of the Disabilities Act does not require that the person must suffer the disability ''during the course of employment' and even if he suffers the disability during the period of service but outside the course of employment then too he is entitled to the protection. This view was also taken by the Delhi High Court in the case of Satya Bir Singh Vs. Delhi Transport Corporation & Anr. [(2005) 1 PDD (CC) 398 with which we entirely agree.

Before parting with this case we must not forget to refer to a recent decision of the Hon'ble Supreme Court in Indian Banks Association, Bombay & Ors. Vs. M/s. Devkala Consultancy Service & Ors. AIR 2004 SC 2491. In the said case vast sum of money had been collected by the Banks in rounding up of interest rates under the Interest Tax Act, 1974. This was declared to be illegal by the Supreme Court but it was observed that by directing the Union of India to refund the excess amount collected through the Banks and consequently ask the Banks to refund the same to the borrowers would take a long time and, therefore, it was thought proper to create a fund for the benefit of the disadvantaged people as it was found that despite the progressive stand of the Court and the initiatives taken by the Government, the implementation of the Disabilities Act was far from satisfactory and that the disabled were victims of discrimination in spite of beneficial provisions of the Act. The Supreme Court, therefore, in larger interest, created a fund for this purpose and the excess amount collected was directed to be deposited in the said fund. It also recommended to the Central Government, with a view to effectively implement the provisions of the Disabilities Act, to amend the same by providing for creation of such a fund.

We have referred to the aforesaid decision only to emphasise that time and again it has been pointed out by the Hon'ble Supreme Court that every endeavour must be made to ensure that the disabled are able to reap the benefit of the Disabilities Act.

We have not been able to find merit in any of the contentions advanced by the learned counsel for the petitioners. The Writ Petition is accordingly dismissed.

Dt.-4.1.2006
NSC/GS

DHC | Ravi Kumar Arora vs Union Of India (UOI) And Anr. | Dated 15 April, 2004 [Judgement]

Delhi High Court
Ravi Kumar Arora vs Union Of India (UOI) And Anr. on 15 April, 2004
Equivalent citations: 111 (2004) DLT 126, 2004 (3) SLJ 486 Delhi
Author: S K Kaul
Bench: S K Kaul
JUDGMENT Sanjay Kishan Kaul, J.

1. The ingenuity of bureaucratic system can set at naught implementation of the best-intended legislations. Judicial proceedings, which resulted in the legislation of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter to be referred to as, 'the said Act' ) are sought to be negated by the ingenuous method of forming one committee after another to identify the posts for the benefit of the persons with disability. The mandate of the Act, which came into force on 07.02.1996, is, thus, violated with impunity on the ground that such posts have not been identified for now almost eight years! Persons like the petitioner are, thus, told that they must wait till these committees identify the posts or till deluge, whichever may be later.

2. It is no answer to the persons with disability to be told that the Government is still not equipped and ready with the identified posts. They have waited enough and as Gabrielle Mistral said, " Right now is the time, his bones are being formed, his blood is being made and his senses are being developed ... to him, we cannot answer 'tomorrow'. His name is 'today'."

3.In order to appreciate the contours of the disputes in the present case, it is necessary to go into the history of the legislation. An insight into this can be found even from the Statement of Objects and Reasons of the said Act. In December, 1992, a meeting to launch the Asian and Pacific Decade of Disabled Person 1993-2002 was convened by the Economic and Social Commission for Asian and Pacific Region in Beijing. This resulted in adoption of the Proclamation on the full participation and equality of people with disabilities in the Asia and Pacific Region. India was a signatory to the said Proclamation.

4.The issue of providing friendly environment to persons with disability soon found part of the judicial pronouncements by the Hon'ble Supreme Court in National Federation of Blind v. Union Public Service Commission & Ors., . The judgment gave the right to visually handicapped persons to compete on equal footing for job opportunities and the Government of India and Union Public Service Commission ( in short, 'UPSC' ) were directed to permit blind and partially blind eligible candidates to compete and write the civil services examination in Braille-script or with the help of scribe. The matter did not rest at this since further directions were issued to the Government of India to decide the question of providing preference / reservation to the visually handicapped persons in Group 'A' and 'B' posts in the Government and public sector undertakings expeditiously. The Supreme Court noted that the visually handicapped constitute the significant section of our society and as such it is necessary to encourage their participation in every walk of life. Some reservation had been provided by the Central Government for vacancies in Group 'C' and 'D' posts, but in order to consider the growing demand from the visually handicapped persons, the Ministry of Welfare, Government of India had directed Standing Committee for identification of jobs in various Ministries / Departments for such persons by an order dated 30.12.1985. The report was submitted by the Committee on October 31, 1986. The Committee prepared a comprehensive list of 416 categories in Group 'A' and 'B' posts. An office memorandum was issued on 25.11.1986 by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training ( in short, 'DOPT' ) providing for preference to be given to the handicapped persons for these posts. This memorandum, however, remained on paper and even when the matter in National Federation of Blind's case (supra) was argued, it was pointed out that this office memorandum for 7 years had remained unimplemented. It is of importance to mention that the Committee had specified that the visually handicapped ( blind and partially blind ) are suitable for appointment for certain categories of Group 'A' and 'B' posts, which are mentioned in para 6 of the judgment. Towards the conclusion of the judgment, there were certain meaningful directions issued by the Supreme Court and it is best to set out the same by reproducing the paragraphs :-

"12. The list of Category 'A' and 'B' posts, identified as suitable for the visually handicapped by the committee, includes number of posts which are filled as a result of the civil services examinations. When there are posts to which blind and partially blind can be appointed, we see no ground to deprive them of their right to compete for those posts along with other candidates belonging to general category.
13. Mr. V.K. Cherian, Under Secretary to Government of India, Ministry of Personnel in his affidavit dated March 10, 1992 filed before this Court has stated as under :-
" If there were Group 'A' and 'B' jobs, which could be filled up by the blind, the same should also be identified. Once the jobs were identified, they could be filled up from among the blind and also other handicapped persons such as deaf and orthopaedically handicapped ... Going by the report of the committee and the posts identified by it, the Union Public Service Commission made the observation that the posts identified as suitable to be held by the physically handicapped persons, particularly those identified for the blind are not such which are required to be filled on the basis of competitive examination conducted by the Commission."
The observations of the Union Public Service Commission as projected by Mr. V.K. Cherian in his above-quoted affidavit do not seem to be correct. After going through the list of the posts identified as suitable for visually handicapped (blind and partially blind) it is obvious that there are number of posts which are required to be filled through the civil services examination and other competitive examinations conducted by the Commission Group 'A' and 'B' posts in the category of Administrative Officers (Secretarial - Senior) and Administrative Officer (Secretarial - Junior) are necessarily to be filed as a result of civil services examination by the Union Public Service Commission. If some of the posts in the India Administrative Service and other Allied Services, as identified by the committee, can be filed from amongst the visually handicapped persons then we see no reason why they should not be permitted to sit and write the civil services examination. We make it clear that once recruited to the lowest level of the service the visually handicapped persons shall not be entitled to claim promotion to the higher posts in the service irrespective of the physical requirements of the jobs. If in the hierarchy of promotional posts it is found by the Government that a particular post is not suitable for the visually handicapped person he shall not have any right to claim the said post.
14. In the light of the above discussion we partly allow the writ petition and direct the Government of India and the Union Public Service Commission to permit the visually handicapped (blind and partially blind) eligible candidates to compete and write the civil services examination which is ordinarily held yearly by the Union Public Service Commission. We further direct that they shall be permitted to write the examination in Braille-script or with the help of a Scribe. There shall be no orders as to costs."

5. The aforesaid observations were a precursor for the enactment of the said Act in 1995, though foundation for the same was laid earlier in 1992 as stated aforesaid. The issue of identification of posts also arose in the year 1995 before the Act coming into force in Nandkumar Narayanrao Ghodmare v. State of Maharashtra & Ors., . The petitioner therein was successful in the examination and was selected to the post of Agricultural Officer Class - II, but was not appointed because of colour blindness. It was found that there were only five posts, which required perfect vision and the Government was directed to consider the case of the petitioner therein for appointment to any post other than the five posts.

6. The Statement of Objects and Reasons of the said Act provide that a suitable legislation was necessary to provide for the following :-

"(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled 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 equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream."

7. So much for the background of the legislation. Now to the facts of the present case.

8.The petitioner has been working with the Ministry of Health, Government of India in Group 'B' (non-Gazetted) post since 1998. The petitioner was appointed to the post after having qualified under the General category and has been working without any impediment or any aid while performing the duties of the said post. Prior to the petitioner being appointed to the said post, the petitioner worked as an Income-tax Inspector, CBDT, Ministry of Finance after qualifying in the Staff Selection Exam with 13th rank under the General category. The petitioner had also qualified in the Uttar Pradesh State Civil Services Examination for the post of a Naib Tehsildar / Administrative Officer under the General category.

9. In the year 2000, the petitioner qualified in this written examination for the Central Civil Services (Mains) Examination, 2000 conducted by respondent No. 2 UPSC and even went through the interview, but was not successful. At the time of the interview, the petitioner also underwent a medical examination conducted by the Medical Board constituted by the UPSC, but was never informed that he suffered from any physical handicapped of low vision. The petitioner was, however, successful in the next year and in May, 2002 was declared as a successful / qualified candidate with a rank of 325 having obtained 1184 marks and on 28.05.2002 received intimation for joining the foundation course. The specific service / post was, however, not allotted to the petitioner, which was to be subsequently done on the basis of his rank in the merit list, eligibility, preference for service given by the petitioner. In order to improve his ranking, the petitioner had appeared in the Preliminary Examinations even for the year 2002 on 19.05.2002 in which he qualified subsequently.

10. The petitioner had to undergo a second medical examination conducted by the Medical Board for the CSE, 2001 and was informed on 12.07.2002 that he was disqualified on account of substandard vision. The petitioner immediately represented against the same on 31.07.2002 and thereafter requested that in view of the stand of the respondents, the petitioner be treated as a disabled person and be accordingly appointed against the suitable vacancy / post, which was required to be identified under the provisions of the said Act. The relevant extract of the said letter is as under :-

"In response to para 3 of your letter - I do agree with the findings of the medical board that my vision is not normal. I am myopic patient since birth. My vision in both eyes is 6/60. Only after receiving this communication from DOPT, I came to know that with this much of vision I fall in the category of disabled.
In this regard I would like to bring the fact in your notice that visually disabled persons are eligible to appear in civil services examination and they are getting some seats reserved for them. Since I am also a visually disabled person and otherwise I am eligible to get selected through disabled category, I request you to kindly consider my candidature against the available seats reserved for disabled., if I am otherwise eligible for selection in that quota.
I am enclosing the medical certificate in support of my claim against the disable quota. I hope your good-self will consider my request sympathetically and will oblige me."

The petitioner enclosed a certificate dated 26.07.2002 from the Office of the Medical Superintendent, Safdarjung Hospital to the following effect:-

"CERTIFICATE Certified that Shri Ravi Kumar Arora, 28 years Male, Eye O.P.D. No.12839/02, has High Myopia Both Eyes. His vision is 6/60 both Eyes. He has visually handicapped of 40% (FORTY PERCENT)."

11.Since the petitioner had cleared the Preliminary Examination and was entitled to appear for the Mains Examination of 2002, the petitioner requested respondent No. 2 UPSC in writing that he may be treated as a disabled person with visually handicapped and be permitted to write the Mains Examination as such. The contents of the said request are extracted as under :-

"I , Ravi Kumar Arora, appeared in Civil Services (Preliminary) Examination-2002 as a candidate belonging to non-disabled category. I have also finally qualified in CSE-2001 and ranked - 325 as non-disabled candidate. But in due course DOPT has informed me that you are medically unfit for all services due to sub standard vision. When I contacted DOPT, they said that you could be considered as visually handicapped candidate.
Sir, I am a myopic person since birth. My vision in both eyes is 6/60. Only after receiving the above communication from DOPT, I came to know that with this much of vision I fall in the category of visually challenged persons.
Sir, as I have already appeared in C.S.(P) Examination-2002 and done well in the exam. Hopefully I will get through. You are therefore requested to change my candidature from non-disabled to disabled category and if I qualify for mains 2002, kindly allow me to appear in main 02 as visually handicapped candidate. Since, I am leading normal life despite of my poor vision, I do not need the help of scribe for any mains examination."

12.The petitioner made a further request vide letter dated 09.08.2002 to the Ministry of Personnel in the following terms :-
"Subject : Civil Services Examination-2001-Change of Category from Non-disabled to disabled.
Sir, I, Ravi Kumar Arora, have finally qualified in CSE-2001 and ranked-325 as non-disabled. But in due course DOPT has informed me that I am medically unfit for all services due to Sub standard Vision.
Sir, I am a myopic person since birth. My vision in both eyes is 6/60. Only after receiving the above communication from DOPT, I came to know that with this much of vision I fall in the category of visually challenged persons.
In this regard I would like to bring the fact in your notice that visually disabled persons are eligible to appear in civil services examination and they are getting some seats reserved for them. Since I am also a visually disabled person and otherwise I am eligible to get selected through disabled category, I request you to kindly consider my candidature against the available seats reserved for disabled. I would like to bring in your kind notice that I have already represented my request to concerned Section in this regard (copy of the same is enclosed for your ready reference).
I hope your good-self will consider my request sympathetically and will oblige me."

13.The request of the petitioner for being accommodated in the handicapped category for the Examination of 2001, the result of which was declared in 2002, was, however, rejected in the following terms :-

"I am directed to refer to your letter dated the 9th August, 2002 on the above mentioned subject and to say that a candidate was required to indicate whether he is a physically handicapped candidate or not in column 23 of the application form for the Civil Services Examination, 2001. In the said column you have mentioned that you are not a physically handicapped candidate. It is further mentioned that para 6 of the Notice issued by the Union Public Service Commission clearly states that no correspondence will be entertained from candidates to change any of the entries made in the application from. In view of this, it is regretted that your request cannot be acceded to."

14.While on the one hand, the request of the petitioner for being treated as a handicapped person was rejected in respect of the Examination held in 2001, the request made by the petitioner vide letter dated 31.07.2002 for the Mains Examination to be held in 2002 was rejected by the letter dated 17.09.2002 on the ground that the concession admissible to blind candidates was not admissible to persons suffering from Myopia. The contents of the said letter are as under :-

"Subject: Civil Service (Main) Examination ,2002 Sir, With reference to your application for above captioned examination and your letter dated 31.07.2002 requesting the Commission to treat you as a visually handicapped candidate, I am to say that the medical Certificate submitted by you in support of your claim is not in the prescribed proforma. Your attention is also invited to Note (4) under Appendix - I, Section-II (B) of the Rules of this examination, a coy of which was supplied to you along with the Detailed Application Form, which reads:
NOTE (4): The concession admissible to blind candidate shall not be admissible to those suffering from Myopia". 

In the light of above you may like to reconsider your request and thereafter submit fresh visually handicapped certificate in the proper prescribed proforma. (Copy of format enclosed)."

15.The petitioner submitted a fresh visually handicapped certificate in the prescribed proforma duly certified by the Doctor from Safdarjung Hospital under the cover of the letter dated 25.09.2002. But this request was also rejected vide letter dated 04.10.2002 in the following terms :-
" With reference to your candidature for the above mentioned examination and your letter dated 25.09.2002 I am directed to say that according to the Note (4) of the rules of the examination sent to you along with the detailed Application Form, the concession admissible to blind candidate is not admissible to those suffering from Myopia. Therefore, handicapped candidate cannot be acceded to."

16.The result of the aforesaid communication was that the petitioner was neither being treated under the handicapped category as a disabled candidate nor as a normal candidate and the petitioner addressed a letter dated 09.10.2002 to the UPSC as under :-
"In reference to your above letter, I would like to request you to allow me to appear in the CS(M) Exam-2002, even if previously, since the main Exam-02 is not for away and I have little time to represent my case.
Sir, it is hocking and surprising for me that I am neither a normal candidate (as per DOPT) nor a disable candidate (as per UPSC).
However, again I am requesting you to permit me to appear in the CS(M) Exam-2002."

17.The petitioner faced with the aforesaid position filed the present writ petition claiming a dual relief to write the Examination of 2002 in the category of partially blind / low vision and in the alternative for quashing the letter dated 12.07.2002 declaring the petitioner as unfit for selection on the ground of low vision. The petitioner was permitted in terms of the interim orders dated 22.10.2002 to appear in the Examination to be held for the said year as the visually challenged person. At the time of passing the interim order, the Court took notice of the Gazette notification dated 15.12.2001 specifying the category of 40% visually disability as category I. It may be noticed that the petitioner suffers from the visually handicap of 40%. In the subsequent order dated 25.04.2003, it is noticed that though the petitioner had appeared in the category of disabled persons, he unfortunately could not qualify the Mains Examination and, thus, the petitioner claimed the right to be appointed to the post meant for disabled persons for the year 2001.

18.The Examination for which the petitioner appeared in 2002 in the category of a visually challenged person was actually illusionary as it transpired subsequently that the petitioner did not qualify on account of the fact that there were, in fact, no quota which had been carved out for the said category. The result was that while the petitioner was successful for the Examination of 2001 under the General category, he was denied appointment on the ground of visually impairment while, on the other hand, for the Examination held in 2002 for which he appeared as a visually challenged candidate, there were no basis identified or quota carved out.

19.In order to assist the Court, by subsequent orders, the Commissioner of Disabilities appointed under the provisions of the said Act was also issued a notice to effectively participate in the proceedings.

20.The pleadings filed in this petition have brought to light some shocking facts. In response to an unstarred question in Parliament answered on 05.08.2003 enquiring into the details of visually impaired candidates selected / recommended on the basis of the CSE during the last four years, the DOPT answered that no candidate applying as a visually impaired candidate had been recommended during the said period of last four years. On further information being sought by this Court, it has been admitted by learned counsel for the respondents that out of 26 services of Group 'A' and 'B', no post had been identified for a visually impaired candidate during this period of time. In fact for the year 2001, six posts had been identified under the said Act - two each for the Indian Information Services Group 'A'; Indian Post and Telegraph, Accounts and Finance Services Group 'A'; and Armed Forces Headquarters, Civil Services Group 'B', but even these were not for a visually impaired candidate.

21.Learned counsel for the Chief Commissioner for Persons with Disabilities brought to notice of this Court that proceedings had been initiated by one Mr. Umesh Puranik under the said Act, which was registered as Case No.1247 of 2001. The grievance of Mr. Puranik was that for the conduct of the CSE, 2001, neither advertisement nor the rules for the Examination had prescribed as to which post in the 26 services were suitable for physically disabled persons and required the same to be published. This case was disposed of on 18.08.2003 and some interesting facts, which emerged during the said proceedings, are relevant for the present controversy. The UPSC washed its hands off the issue saying that they only conduct the examination strictly in accordance with the rules framed and notified by the DOPT, Government of India as notified in the Gazette of India. The Narsimhan Committee in 1996 had given its report suggesting that all Government Ministries / Departments should identify the posts for persons with disabilities, but none of the Ministries / Departments had done so till the Examination for the year 2001. For the Examination of 2001, only three services had identified the six posts referred to above. The said Ministry also expressed his helplessness since the relevant Ministries / Departments are to place indents along with format and the concerned Cadre Controlling Authorities did not provide information. In this behalf, reference was made to the office memorandum of 10.07.2003 of the DOPT referring to the proceedings in the case of Mr. Umesh Puranik. The office memorandum requests the various Ministries to specify the post(s) / vacancy(ies), if any, reserved for the physically handicapped persons and a special mention has been made whether any post is reserved for person(s) suffering from blindness or low vision. Information was also sought that in case no reservation for physically handicapped persons for that particular year is there, whether some posts had been identified for such persons and if so, the category for which the post(s) had been identified along with their physical / functional requirements.

22.The Ministry of Social Justice and Empowerment vide a notification dated 31.05.2001 published in the Gazette of India No. 178 dated 30.06.2001 had identified the posts in Group 'A', 'B', 'C' and 'D' for persons with disabilities based on the recommendations of the Expert Committee constituted for the purpose. Almost all the administrative jobs in Group 'A' and 'B' had been identified as suitable for persons with disabilities in the said notification, though the services as such had not been mentioned. The Chief Commissioner, thus, noted that it could either be the concerned Cadre Controlling Authority or an independent Expert Committee, which could decide whether a particular service is suitable for persons with disabilities or not. Thus, it noted that since majority of the posts are to be held by officers of different services basically having administrative nature of work, most of them would be suitable for such persons with disabilities. A direction was issued for all the Cadre Controlling Authorities to take a view and intimate the vacancy position to UPSC for Civil Service Examination. In case the Cadre Controlling Authority considers the service with which it is concerned is not suitable for persons with any kind of disability, exemption would have to be obtained under Section 33 of the said Act and the DOPT was directed to monitor and ensure that the concerned Cadre Controlling Authorities complete the identification before November, 2003 and reservation of vacancies are made in the notification for CSE of 2004.

23.The aforesaid direction, however, resulted in another order being passed on 27.08.2003 by the Ministry of Social Justice and Empowerment for identifying the Group 'A' and 'B' Services where posts can be reserved. It was stated in the said office order that no post in Group 'A' and 'B' Services of the Government of India had yet been reserved for persons with disability and the Ministry being the 'Appropriate Government' as per the meaning assigned to clause under Section 2(i) of the said Act, it was deemed expedient to conduct a review with all administrative departments to identify the services in which reservation for persons with disabilities can be given.

24.In order to appreciate the disability, which the petitioner is stated to be suffering, it would be useful to refer to some of the provisions of the said Act. Section 2(i) defines 'disability' to mean blindness, low vision, etc. Thus, low vision is specifically stipulated as a disability. A person with low vision is defined under Section 2(u) as under :-
"2(u) - "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable o using vision for the planning or execution of a task with appropriate assistive device."
A person with disability is defined under Section 2(t) of the said Act as under :-
"2(t) - " person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority."
The effect of reading of the aforesaid provisions is that the petitioner, who suffers from low vision of 40%, would qualify as a person with disability of low vision.

25.Section 32 of the said Act provides for identification of posts and Section 33 of the said Act provides for reservation of the posts. Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, the vacancy has to be carried forward in the succeeding recruitment year. The relevant provisions are as under :-
" 32. Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall -
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the development in technology."
" 33. Reservation of posts. - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from -
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
" 36. Vacancies not filled up to be carried forward. - Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it ay first be filled by interchange among the three 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:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."

26.It is also apparent from reading of the aforesaid provisions that if any particular service or establishment is to be exempted from the provisions of the said Act, the appropriate Government can do so by notification. It is not disputed that no such notification has been issued. Surprisingly, it is stated that the Indian Administrative Services ( in short, 'IAS' ) sought exemption from application of the said Act, but no notification has been issued for the said purpose.

27.It is difficult to fathom how administrative jobs including the IAS can be exempted from granting reservation under the said Act. It is possible the reflection of the attitude of a 'BURRA SAHEB' from the period of the British Raj.

28.The issue of 3% reservation in Group 'A' Services also forms part of the Annual Report for 2000-2001 of the Office of the Chief Commissioner for Persons with Disabilities. The problem was specified in para 8 of the report as under :-
" 8. 3% RESERVATION IN GROUP 'A' CIVIL SERVICES In employment notice no. 04/2000 dated 25.12.99, Union Public Service Commission advertised for Group 'A' posts belonging to 25 all India services. There was a clear reference to the provision of reservation for SC, ST and other backward classes. However, the statutory 3% reservation in jobs was not created for. Department of Personnel & Training (DOPT) is a nodal department through which the establishments in Government of India route their requisitions for filling up vacancies. Subsequently, the UPSC conducts recruitment. The recruitment rules for various services are framed taking due consideration of the Constitutional, legal and administrative provisions. There were two main issues involved in the present case:-
Whether as per Section 33 of the Disabilities Act, the provision of 3% reservation would be applicable on all the 25 services and the posts on which the recruitment exercise by UPSC was being initiated.
Whether as per Section 32 of the Persons with Disabilities Act, 1995, the posts which were identified as suitable to be held by one or the other category of persons with disabilities by the appropriate government since the reservation as per Section 33 has to be effected on the identified posts for disabled persons in accordance with the provisions of Section 32.
The respondent (DOPT) in its written reply dated 11.12.2000 stated that " reservation for persons with disabilities in Group A & B posts among the services recruitment to which is made through Civil Services Examinations is applicable only in respect of posts which have been identified as such by the respective cadre controlling authorities. As none of the post among the services included in the scheme of the civil services examinations as intimated by the concerned cadre controlling authorities, has been identified as suitable for being manned by a handicapped person, hence it has not been possible to extend the reservation for handicapped persons to the civil services examination 2000 notice for which has been issued on 25.12.1999"
The stand taken by respondent was examined and found that as per Section 32. it is the appropriate Government who is obliged to update and identify suitable posts for persons with disabilities. Inter departmental committee for this purpose has been constituted under the Chairmanship of Additional Secretary, Ministry of Social Justice and Empowerment. This committee in its report mentioned clearly that " the establishments covered under the Persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Section 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Government the establishment under 33 of PWD Act, 1995 can approach inter departmental committee constituted for the purpose to look into the matter regarding exemption from Section 33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for persons with disabilities.
Similarly, the Expert Committee of 1986 explicitly mentioned that the posts identified by them are illustrative and not exhaustive. It is pertinent to recognize that the respondent itself was instrumental in revalidating those Group A and B posts which were identified by the Government for persons with disabilities in 1986. In the office memorandum no. 36035/14/98-Estt.(Res.) dated 28.8.1988, the respondent stated that " the existing identification done in the year 1986 shall remain valid, till the same is modified by the Government on the recommendation of the Expert Committee."
The perusal of the revalidated list of identified posts reveal that a number of posts belonging to various all India services were already found suitable for some or the other category of disabled. A table showing posts and the suitability of the disabled is given below :-
Recruiting Ministry / Department Name of the service(s) Name of post at entry point Post identified / category of disabled Department of Telecommunication Indian P&T Accounts & Finance Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Ministry of defense (Finance Division) Indian defense Accounts Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Railway Board Indian Railway Account Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Department of Expenditure Indian Civil Accounts Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH D.O.P.T.
Central Secretariat Service Section Officer Administrative Officer Assistant Administrative Officer and others - OL, BLA, OA, PD, PB, B Ministry of Information and Broadcasting Indian Information Service Information Officer, News Editor Information Officer - PB, BO, A, OL and Assistant Information Officer - PB, BO, A, OL News Editor - PD, BLA, OL, OA, PB Ministry of Railways Indian Railway Personnel Service Personnel Officer Personnel Officers - OL, BL, OA, B, PB In view of the fact that as per Section 32 a number of posts are to be filled through Civil Services Examination for Government of India establishments were already featuring on the revalidated list of suitable jobs for persons with disabilities, applicability of the provision of 3% reservation for the disabled as per Section 33 got established. It become abundantly clear that it is the appropriate government as notified by the DOPT in the shape of inter departmental expert committee is the one who undertake the job of identification of posts in Government of India though the establishments on their own initiative can identify posts in addition to the posts already identified and included in the list of identified jobs. Therefore, the role of cadre controlling authorities in determining the suitability of posts already identified and notified by the Government for effecting reservation on 3% vacancies for the disabled could not be over-emphasized beyond the statutory provisions. In the light of the over circumstances and facts the Chief Commissioner, Disabilities recommended Secretary, DOPT to advise all cadre controlling authorities, requisitioning Ministries, Departments, who participate in the Civil Services Examination to :-
(a) Cadre 3% reservation as per Section 33 of Disabilities Act 1995; and
(b) Have the backlog calculated w.e.f. 1.2.1995 with a view to get it cleared in the recruitment exercise."

29.The violation of the mandate as contained under Section 33 of the said Act for making reservation has been emphasized by the petitioner in the additional affidavit dated 10.08.2003. It has been stated therein that the petitioner had obtained 940 marks for the Examination held in the year 2002 while the cut-off for the General category was 979. However, for the said year, as noted above, no reservation was made for a person with blind / low vision in violation of the mandate of Section 33 of the said Act. It was, thus, not a case where somebody, who was senior in merit to the petitioner, was appointed. In fact from 1998 onwards, for which there is date available, not a single person has been appointed from the blind / low vision category.

30.The appointment of a fresh Committee in the year 2003 also appears to be a ruse since an earlier order dated 02.07.1999 of the Ministry of Social Justice and Empowerment had constituted an Expert Committee to identify / review posts in Category 'A', 'B', 'C' and 'D' similarly. The Committee had made its recommendations including identification of posts for visually handicapped. This material has been placed on record by the petitioner. There is no answer as to why the recommendation of this Committee has not been implemented and now another Committee has been formed in the year 2003. In my considered view, the object is clear - to see that the said Act remains only a paper enactment.

31.The material placed on record shows that there were 417 posts in the year 2001 and as per the mandate of Section 33 of the said Act, at least 4 posts would qualify for reservation under the category of blinds / low vision. However, only 5 posts were filled up from the loco motor category while no post was filled up from the category of blinds / low vision and hearing impairment.

32.The aforesaid attitude of discrimination against persons with disabilities forms part of (2004) 14 'INTERIGHTS' Bulletin, i.e., an International Human Rights Law Centre, which focuses on protection of human rights through legal remedies. It has been observed in the Bulletin that one-tenth of the world population lives with some kind of disability and such persons suffer denial of their basic human rights in one form or the other. It is also observed "in addition to being disabled by institutions, social policies and attitudes, often the very laws intended to protect and uphold our human dignity, undermine the enjoyment of disabled people's rights".

33.The discussion builds up on the violation of human rights angle of such persons and the factum of enactments by certain countries since the adoption ten years ago by the United Nations General Assembly of the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities. These Standard Rules 22 in nos. are divided into three sections dealing with (i) pre-conditions for participation; (ii) target areas for equal participation; and (iii) implementation measures. The forth section describes the monitoring mechanism. Such persons with disabilities are not to be treated as a recipient of some charity, but have a right to be treated on equal footing with other persons. Equal opportunities of employment are an integral part of the Standard Rules adopted by the United Nations.

34.One of the papers in the Bulletin deals with the experience of India and legal protections for person with disabilities authored by Ms. Anuradha Mohit and Mr. Santosh K. Rungta. The concept of equality under Article 14 of the Constitution of India ( in short, 'the Constitution' ) and the mandate against discrimination under Articles 15 and 16 of the Constitution lays the foundation for the equal treatment of persons with disabilities. Article 16 of the Constitution encourages the State to frame laws for reservation of appointments and in this behalf, a reference has been made to judgment in Indra Sawhney & Ors. v. Union of India, (1992) Supp (3) SCC 217, which considered the legality of reservation inter alia in favor of the disabled persons, which was not explicitly covered under Article 16 of the Constitution. The object of Article 16 of the Constitution being to put persons on equal plain, the Act is in furtherance of this object in so far as the persons with disabilities are concerned.

35.In so far as application of the widely accepted principles to the present facts of the case are concerned, the petitioner has stated on affidavit that out of 417 posts for the Examination of 2001 about 405 posts are filled up and further 3 candidates wrote the Examination again for the year 2002 and switched over to a different service in the year 2002. As noted above, no candidate with any visual disability was appointed as even post had not been identified.

36.In so far as the Examination for the year 2002 is concerned, the petitioner was permitted to appear in the category of visually challenged persons. The petitioner was unsuccessful because there was no post reserved in the said category. Learned counsels sought to explain away the letter of the respondents dated 04.10.2002, which stated that the concession admissible to a blind candidate is not admissible to the petitioner, who is suffering from Myopia and, thus, the petitioner cannot be treated as a visually handicapped candidate. The explanation given was that this was in reference to the requirement of providing a scribe. This explanation cannot be accepted. The petitioner in his letter dated 31.07.2002 had clearly stated therein " I do not need the help of scribe for my Mains Examination". The communication dated 17.09.2002 of the respondent was in response to the said letter of 31.07.2002 stating that the concession admissible to a blind candidate was not admissible to those suffering from Myopia and requesting the petitioner to apply in a particular format. The petitioner vide letter dated 25.09.2002 sent the relevant format in response whereto the communication dated 04.10.2002 was addressed to the petitioner. Thus, the respondents clearly took the stand that the petitioner having Myopia could not be treated in the reserved category.

37.The aforesaid explanation is being given by the respondent in view of the undisputed position and the admission of learned counsel for the respondent that the petitioner with a 40% disability would be a candidate, who would be covered under the provisions of the said Act.

38.The lack of success of the petitioner in the 2002 Examination was on account of the absence of any post. However, in my considered view, the same is not of a great significance in view of the fact that the petitioner was admittedly successful in the Examination for the year 2001 in the General category. It was only this disability of vision, which ultimately prevented the petitioner from being appointed to the post.

39.It can by no stretch of imagination be said that, on the one hand, the petitioner is not entitled to any reservation and, on the other hand, he is not eligible to be appointed even as a General candidate. The petitioner has been performing functions during his course of employment with the Government, though not for a Category 'A' post. There is no problem in the petitioner performing the functions in the Ministry of Health where he is employed at present in a Group 'B' post. Prior to that, the petitioner worked as Income-tax Inspector, CBDT.

40.The question of the petitioner applying under the category could have arisen if on any previous occasion, the same would have been treated as an impediment. This was not so for the year 2000 even when the medical test was done. Be that as it may, once it was detected that the petitioner suffered from visual impairment, the case of the petitioner could have been considered under the 1% reserved category.

41.It is no answer to be given by the respondent that the petitioner did not apply under the category of visually impaired person. There was no specific column for the said purpose except a general column for handicapped persons. There was further no post identified or reservation made for such visually impaired persons. The result in the case of the petitioner would have been same, even if the petitioner had applied in the said category as was in the case of 2002 when also no post had been reserved.

42.The petitioner without any aid appeared in the written examination and was successful. The petitioner even appeared before the Experts in the Interview Board and no infirmity was found and he was found meritorious by the said panel. To deny the benefit of appointment to the post would be a travesty of justice. The unfortunate part is that the Committee appointed in terms of order dated 02.07.1999 to identify the posts had identified various posts for even visually impaired persons of Group 'A' and 'B', but even that was not given effect to and the new Committee has been set in the year 2003 only to some how evade the effect of the said Act. It is, however, not necessary for this Court to go into in depth of the larger issue since in the present proceedings one is concerned with the relief to be granted to the petitioner as it is not a public interest litigation. It has been stated at the Bar by learned counsel for the parties that as per the rank of the petitioner, the petitioner would have been entitled to the India Postal Services or possibly a superior Services. I see no reason why the petitioner should not be directed to be appointed to the post as per merit of the petitioner since the respondent has failed to carry out the mandate of the reservation for visually impaired persons of 1% and there is no other candidate over the seniority of the petitioner in the said category. In terms of the total strength, four seats were liable to be reserved for the category to which the petitioner belongs. The process of once again the respondents trying to identify posts, which they failed to do despite eight years having elapsed from the said Act coming into force, cannot be awaited for the petitioner to be appointed to the post. The petitioner has already suffered enough.

43.I am, thus, of the considered view that the petitioner is entitled to be appointed to a post in the category 'A' Services as per his merit and seniority based on the rank obtained by the petitioner for the Examination of 2001 and the petitioner be so appointed to the Indian Postal Services or an equivalent Service. The petitioner is also liable to be treated as having joined in service along with his batch-mates for purposes of determination of his seniority, monetary emoluments and promotions. However, in so far the back wages and other monetary benefits for the past are concerned, since the petitioner has been working in a Group 'B' post, the petitioner would be entitled to all these monetary benefits for the past also less the amount received by the petitioner in the course of his employment. The arbitrariness or the conduct of the respondents is such that it cannot be said that the petitioner should not be entitled to these monetary benefits not having worked on the post. If the petitioner has not so worked, it is the direct result of the failure of the respondents to carry out the mandate of the Parliament as envisaged under the said Act and the petitioner cannot be denied the benefit of the same.

44. A writ of mandamus is issued directing the petitioner to be appointed to the post in pursuance to the Examination of Civil Services, 2001 with all the consequential benefits of merit, seniority, promotion and monetary emoluments for the past and future as mentioned aforesaid and the needful be done by the respondents within a maximum period of one month from the date of this order.

45.The petitioner shall also be entitled to costs of the present proceedings quantified at Rs.20,000/- to be borne by respondent No. 1.

CITATIONS in above order

The Displaced Persons (Claims) Supplementary Act, 1954
Article 16 in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Indra Sawhney & Ors vs Union Of India & Ors on 8 August, 1991
National Federation Of Blind vs Union Public Service Commission ... on 23 March, 1993
Union Of India & Ors. vs Sh.Ashok Kumar Arora on 26 April, 2011
Ms. Ira Singhal vs Department Of Personnel And ... on 25 February, 2014
Nishant. S. Diwan vs High Court Of Delhi Through ... on 25 March, 2014
Ashwani Gupta vs Government Of India And Ors. on 7 January, 2005
Ms. Anubha Bhargava vs Union Of India (Uoi) And Ors. on 4 December, 2007

Supreme Court Judgement : Kunal Singh Vs. Union of India & Anr | 13 Feb 2003 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: Hon'ble Justice Shivaraj V. Patil, and Hon'ble Justice H.K. Sema

Case No.: Appeal (civil)  1789 of 2000

Caste Title:   Kunal Singh  Vs. Union of India & Anr.

Date of Judgement:  13 February 2003

Act/Law: Section 47 of The Persons with Disabilities Act 1995

JUDGMENT:

By Shivaraj V. Patil, J.

The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act'). However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties on the contentions including the one based on Section 47 of the Act.

2.    The learned counsel for the appellant, pointing to few relevant definitions contained in Section 2 and Section 47 of the Act, urged that on the facts and circumstances of the case, keeping in view the object and purpose of the Act, relief ought to have been granted as sought in the writ petition.

3.    In opposition, the learned Senior Counsel for the respondents made submissions in support and justification of the impugned order. He also drew our attention to Rule 38 of the Central Civil Services Pension Rules, 1972 under which the appellant is granted invalidity pension which he is drawing. According to him, in view of the relevant definitions contained in Section 2 of the Act, the appellant is not a person with disability as he is permanently incapacitated. He also drew our attention in support of his argument to Section 2(o) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 to make a distinction.

For proper appreciation of the rival submissions of the learned counsel for the parties, it is useful and necessary to notice few definitions as contained in Section 2 and Section 47 of the Act.

"2. Definitions In this Act, unless the context otherwise requires, -

(a) to (d)..............................

(e) "Cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;

(f) to (h).............................

(i) "disability" means-

(i) to (iv).......................

(v) locomotor disability;

(vi) to (vii).....................

(j) ..................................

(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;

(l) to (n).............................

(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."

(p) to (s)..............................

(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;

(u) to (v)..............................

(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;

 

"47. Non-discrimination in Government employments - (1) 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 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 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."

According to the learned counsel for the appellant, his disability falls under Section 2(i)(v), namely locomotor disability. What is meant by locomotor disability is stated in Section 2(o). There is no dispute that the Act applies to the establishment of the respondents and this establishment is not exempted under any notification issued under Section 47 of the Act. "Persons with disability" means a person suffering from not less than 40% of any disability as certified by a medical authority as per the definition given under Section 2(t).

Short question that arises for consideration in this appeal is whether the appellant is entitled for the benefit of Section 47 of the Act.

From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service.

The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 

Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. 

An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability.

We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads: - "72. Act to be in addition to and not in derogation of any other law. - The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities."

Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.

For the reasons stated and discussions made above, the appeal deserves to be accepted. Hence the impugned order affirming the order of termination of services of the appellant is set aside and the appeal is allowed. We direct the respondents to give relief in terms of Section 47 of the Act.

There shall be no order as to costs.

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