IMPORTANT POINT
No promotion shall be denied to a person merely on ground of his disability.

Headnote:The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 -Section 47-Indian Railway Establishment Mannul-Para 531(b)-No promotion to be denied to a person merely on ground of his disability-Respondent working in Group C post of Railways was not considered for promotion on ground that he was to be visually handicapped after his examination by medical board-Proviso to Section 47(2) of the Act did not give unbriddled power to exclude any establishment from purview of the Section as exclusion could be only done under certain specified circumstances-Impugned order of CAT upheld by High Court in writ allowing respondents application suffered no infirmity.
       Held : 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. Sub-section (2) is relevant for our purpose. It, in crystal clear terms, provides that no promotion shall be denied to a person merely on the ground of his disability. Obviously, in the instant case, the respondent was not considered for promotion on the ground of as he was considered to be visually handicapped. Much stress was laid by Mr. Krishmani on the proviso to sub-Section (2) of Section 47. The same is not in any way helpful to further the case of the appellant. In fact it only permits the appropriate Government to specify by notification any establishment which may be exempted from the provisions of Section 47. It does not give unbriddled power to exclude any establishment from the purview of Section 47, the exclusion can be only done under certain specified circumstances. They are:
        (i) issuance of a notification.
        (ii) prescription of requisite conditions in the notification.
       The notification can be issued when the appropriate Government, having regard to the type of work carried on in any establishment thinks it appropriate to exempt such establishment from the provisions of Section 47. The proviso to sub-Section (2) thereof does not operate in the absence of the notification. (Para 9 and 10)
       Though several documents were referred to contend that the intention of the employer was to exclude certain establishments, a bare perusal thereof shows that they have no relevance and do not in any way fulfill the requirements of the proviso to Sub-section (2) of Section 47. It goes without saying that if a notification in this regard is issued by the appropriate Government the same shall be operative in respect of the establishment which is specifically exempted. That is not the position so far as the present case is concerned. Therefore, on the facts of the case, the order of the Tribunal as affirmed by the High Court by the impugned judgment suffers from no infirmity to warrant our interference. (Para 18)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

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

3. Factual position in a nutshell is as follows:

The respondent while working in Group-C post of the Railways applied for promotion to Group-B post. He qualified in the written test and was directed to undergo medical examination as per para 531(b) of the Indian Railway Establishment Manual (in short the Establishment Manual ). In terms of the Railway Board s Circular dated 31.10.1991 passing of the medical test is a requirement before the candidate is called for viva voce test. The respondent was found to be medically unfit as he was visually handicapped. His case is one of external squint with advanced petriritis pigments on both the eyes. This is a disease which affects the eye-sight progressively. He was considered unfit as he may become visually handicapped in future. The respondent was therefore not called for viva voce test. He filed O.A.No. 439/2001 before the CAT challenging the order dated 20.9.2000 whereby it was indicated that he was not to be called for viva voce test as he had been declared medically unfit. The CAT after hearing the parties came to hold that while considering the case of the respondent (applicant before it) the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short the Act ) were not kept in view. CAT took note of the fact that a new paragraph 189A was introduced in the Establishment Manual which clearly laid down that there shall not be discrimination in the matter of promotion merely on the ground of physical disability. The application was accordingly allowed by the CAT.

4. The Union of India questioned correctness of CAT s order by filing a Writ Petition which was dismissed by the impugned judgment. The High Court took note of sub-Section (2) of Section 47 of the Act to hold that CAT s order is perfectly in order.

5. In support of the appeal, it was contended by Mr. M.N. Krishnamani, learned senior counsel that while referring to sub-Section (2) Section 47 of the Act both the CAT and the High Court overlooked the proviso to sub-Section (2) of Section 47 which permits the appropriate Government to exclude by notification any establishment from the provisions of the Section. According to him, looking at the nature of the duties which employees of Group-B have to undertake, a physically handicapped person, more particularly, one who is visually handicapped will not be able to do justice to the work. The High Court and the CAT were not justified in granting relief to the respondent after he had failed in the medical test. It was urged that the proviso makes it clear that in appropriate cases the protection provided by sub-Section (2) of Section 47 of the Act can be denied and the case at hand is one of such cases.

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

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

"Section 47: Non-discrimination in Government employments-(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

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2004 Supreme(SC) 852

IMPORTANT POINTNo promotion shall be denied to a person merely on ground of his disability.

Cases Referred (6)

IMPORTANT POINT
No promotion shall be denied to a person merely on ground of his disability.