Singh Vs. Union of India & Anr  Insc 74 (13 February 2003)
V. Patil & H.K. Sema Shivaraj V. Patil J.
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.
medical aid given to him did not help.
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.
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.
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.
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.
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.
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.
Definitions In this Act, unless the context otherwise requires, - (a) to
"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
"disability" means- (i) to (iv).......................
"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;
"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."
"persons with disability" means a person suffering from not less than
forty per cent of any disability as certified by a medical authority;
"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;
Non-discrimination in Government employments –
establishment shall dispense with, or reduce in rank, an employee who acquires
a disability during his service;
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
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.
promotion shall be denied to a person merely on the ground of his disability:
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).
question that arises for consideration in this appeal is whether the appellant
is entitled for the benefit of Section 47 of the Act.
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;
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.
47 is included in Chapter VIII of the Act.
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.
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.
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.
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.
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.
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.
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.
direct the respondents to give relief in terms of Section 47 of the Act.
shall be no order as to costs.