Re: Review Application No. 87350 of 2007

By the Court.—This is a review application filed by the respondent -applicants to review the judgment and order dated 21.9.2006, passed by the Full Bench of this Court.

2. Sri R.A. Pandey, learned Counsel for the applicants in support of the review application submitted that three writ petitioners; i.e. Gyanendra Singh, Inder Deo Oraon and Ishu Narayan were suffering from major disability and were discharged in category-5 hence, it was not a case of minor disability or disability of less than 40% so as not to attract the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He submits that notification dated 28.3.2002 issued by the Central Government in exercise of proviso to Section 47 of 1995 Act, was rightly quashed by learned Single Judge and the appellate Bench (Full Bench) erred in holding that it was not necessary to inter into merits of the validity of the notification in the appeal. He submits that it was necessary for the appellate Bench to pronounce over the validity of the said notification. Elaborating his submissions, Mr. Pandey submits that notification dated 28.3.2002 discriminates between the combatant force and other forces in the establishment and exemption provided in the proviso to Section 47, can be granted to an establishment as a whole and it cannot be applied in part of the establishment. The entire army establishment should have been exempted or none of them. He further submits that reasons given by learned Single Judge in quashing the notification dated 28.3.2002 were perfectly justified.

3. Sri Ajay Bhanot, learned Counsel appearing for the Union of India submits that the notification dated 28.3.2002 was issued by the Government of India in exercise of delegated legislative power under proviso to Section 47 and in pursuance of the policy decision taken by the Central Government. He submits that looking to the nature of duties performed by the combatant force, the exemption was in the interest of service and learned Single Judge erred in quashing the said notification. He fully supports the judgment of Full Bench and submitted that review application deserves to be rejected.

4. We have considered the submissions of learned counsel for the parties and have perused the record.

5. The main thrust of submissions of the learned Counsel for the applicants is regarding invalidity of the notification dated 28.3.2002. Although, the Full Bench while considering the submission regarding validity or invalidity of the notification dated 28.3.2002 has observed that since the disability of the petitioners was not more than 40% in any case hence, the 1995 Act shall not be applicable. Learned counsel for the applicant to meet the aforesaid, has submitted that three persons namely; Gyanendra Singh, Inder Deo Oraon and Ishu Narayan were discharged in category-5 hence, the said reasoning do not obviate the necessity to inter into the issue whether the notification was a valid notification or not.

6. In view of the fact that the notification dated 28.3.2002, which is a policy decision of the Government of India and affects large number of personnels, we proceed to examine the submissions regarding the validity of the notification on merits. The 1995 Act was enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. Parliament enacted the said Act in ‘obedience of the decision taken in an international Economic and Social Commission for Asian and Pacific Region in December, 1992. The India which was signatory to the aforesaid proclamation, enacted the 1995 Act. Section 47 of the Act provides for Non-discrimination in Government employment. Section 47 of the Act being relevant is quoted herein below:

“47. Non-discrimination in Government Employment.—(1) No establishment shall dispense with, or reduce in rank, an employee