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SUPREME COURT OF INDIA
T.S. THAKUR, R.F. NARIMAN, JJ.
UNION OF INDIA & ORS. – APPELLANTS
VERSUS
DILEEP KUMAR SINGH – RESPONDENT
CIVIL APPEAL NOS. 2466-2467 OF 2015 (ARISING OUT OF SLP (CIVIL) NOS. 25568-25569 OF 2014)
Decided on: 26-02-2015
(b) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 47(1) – Persons acquiring disability during service – To be kept on a supernumerary post – Exemption available in regard to reduction in rank as well as dispensing with service. (Para 14, 21)
(c) Interpretation of statutes – In case of conflict between two provisions of same statute – Should be read harmoniously and reconciled – On failure to reconcile determination of the leading and the subordinate provision – One provision must give way to the other – Section 47(2) and section 73, 73(3) & (4), Act, 1995. (Para 16)
1894 A.C. 347; 153 ALR 490; (1965) 1 SCR 726 – Relied upon
(d) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 47 and 73 – Section 47 positive, clear and substantive provision exempting the subject matter of Section 47 as a whole – Section 73 procedural provision for laying the notifications made under Section 47 before each House of Parliament – Hence Section 47 is the ‘leading’ provision and section 73 is the ‘subordinate’ provision – Section 73 must give way to section 47. (Para 19)
(e) Interpretation of statute – Proviso – Does not travel beyond the main provision – Golden rule – To read the whole section inclusive of proviso harmoniously. (Para 20)
(1976) 1 SCC 128 – Relied upon
(f) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 47 – Interpretation – Marginal notes – “Non-discrimination in government employments” – Mandate not to discriminate against employees acquiring disability during service – Exemption depending upon ‘type of work’ – CRPF exempted on ground of its type of work – Must apply to promotion and/or dispensation of service. (Para 22)
(2003) 3 SCC 338; (2003) 4 SCC 524 – Distinguished
(g) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 47 – Exemption notification issued on 10th September, 2002 – Accident occurring prior thereto – Contention that notification being prospective would not apply rejected – Relevant date is not date of accident but date of dispensation of service which was done in 2011 – No infirmity. (Para 25)
(h) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 47 and Standing Order 7/99, CRPF – Person unfit for normal duty and person with 100% disability – Distinction – Persons unfit for normal duty retained by giving different duties – Services of respondent with 100% disability dispensed with – No discrimination. (Para 27, 28)
Facts of the case:
On 1st January, 1998, the respondent was enlisted in the CRPF as Assistant Commandant. While on duty, on 19th October, 2001, he sustained grievous injuries in his spinal cord and legs while he was out on a visit checking night guards.
Ultimately, a medical board categorized the respondent as PEE-5, i.e., a person who is permanently incapacitated and stated that he has 100% disability and recommended that he be relieved from service on medical grounds.
On 27th October, 2004, a show cause notice was served on the respondent along with a copy of the report of the medical board with a direction to submit his representation, if any, against the proposed invalidation from service on medical grounds.
Pursuant to an order modifying the stay application, the respondent was relieved from service and given invalidation pension as admissible under Rule 38 of the CCS (Pension) Rules of 1972.
The respondent filed a second writ petition challenging the aforesaid order.
The High Court held that the exemption provision u/s 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 would apply only to promotion and not to continuing the respondent in service. As a consequence, the order dated 1st July, 2011, was set aside and the Union was directed to treat the petitioner in service and to adjust him against any suitable post or against a supernumerary post until a suitable post is available or until he attains the age of superannuation, whichever is earlier.
Finding of the Court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
Judgment
R.F. Nariman, J.
1. Leave granted.
2. These appeals raise an interesting question as to the interpretation of a proviso contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short the “1995 Act”).
3. The facts giving rise to these appeals are as follows:-
On 1st January, 1998, the respondent was enlisted in the CRPF as Assistant Commandant. While on duty, on 19th October, 2001, he sustained grievous injuries in his spinal cord and legs while he was out on a visit checking night guards. Thereafter, he was provided with specialized treatment in various hospitals, but nothing worked and, ultimately, a medical board in its report dated 22nd July, 2004 categorized the respondent as PEE-5, i.e., a person who is permanently incapacitated and stated that he has 100% disability and recommended that he be relieved from service on medical grounds. On 27th October, 2004, a show cause notice was served on the respondent along with a copy of the report of the medical board with a direction to submit his representation, if any, against the proposed invalidation from service on medical grounds. Instead of representing against the show cause notice, the respondent filed writ petition No.30278/2004 challenging the said show cause notice. By an interim order passed on 19th January, 2005, the appellants were directed not to pass any order pursuant to the report given by the medical board against the respondent.
4. Pursuant to an order modifying the stay application, by an order dated 1st July, 2011, the respondent was relieved from service and given invalidation pension as admissible under Rule 38 of the CCS (Pension) Rules of 1972. The respondent filed a second writ petition No.42101 of 2011 challenging the aforesaid order.
5. By the impugned judgment dated 8th January, 2014, the Allahabad High Court held on a construction of Section 47 of the said Act that a Notification dated 10th September, 2002 issued under Section 47 insofar as the CRPF is concerned, (exempting the CRPF from the rigours of Section 47) would have to be read with reference to the field occupied by Section 47(2) only. Thus, the High Court made it clear that the exemption provision would apply only to promotion and not to continuing the respondent in service. As a consequence, the order dated 1st July, 2011, was set aside and the Union was directed to treat the petitioner in service and to adjust him against any suitable post or against a supernumerary post until a suitable post is available or until he attains the age of superannuation, whichever is earlier.
6. Mr. P.S. Patwalia, learned Additional Solicitor General, appearing on behalf of the Union of India has placed the 1995 Act before us. He referred to Section 33, Section 47 and Section 73 and submitted that the penultimate proviso to Section 47 would apply to the entire Section and not merely to sub-section (2) thereof as is clear from the language of the proviso which uses the words “this Section” and not “this subsection”. He further submitted that since there is no ambiguity in the provision, no resort can be taken to Section 73(3) and 73(4) which refers to the proviso in Section 47 as “the proviso to sub-section (2) of Section 47”. He further submitted that the scheme of the Act would be disturbed by the impugned judgment inasmuch as Section 33 and Section 47 cover the same ground – Section 33 being applicable pre-appointment and Section 47 being applicable after appointment. He cited Mohd. Shahabuddin v. State of Bihar & Ors., (2010) 4 SCC 653 at paragraph 179, which judgment refers to the literal rule of construction and S.R. Bommai v. Union of India, (1994) 3 SCC 1 at paragraphs 238 and 239, for the proposition that courts cannot supply a cassus omissus.
7. Mr. Mahabir Singh, learned senior counsel for the respondent, has argued before us that the impugned judgment is correct inasmuch as the 1995 Act is a beneficial legislation mea
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