UNION OF INDIA vs. DILEEP KUMAR SINGH

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.2466-2467 OF 2015 (ARISING OUT OF SLP (CIVIL) NOS.25568-25569 OF 2014) UNION OF INDIA & ORS. …APPELLANTS VERSUS DILEEP KUMAR SINGH …RESPONDENT J U D G M E N T R.F.Nariman, J. 1. Leave granted. JUDGMENT 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:- 1 Page 1 st On 1 January, 1998, the respondent was enlisted in the CRPF th as Assistant Commandant. While on duty, on 19 October, 2001, he sustained grievous injuries in his spinal cord and legs

he was provided with specialized treatment in various hospitals, but nothing worked and, ultimately, a medical board in its report nd dated 22 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 th from service on medical grounds. On 27 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 JUDGMENT 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 th cause notice. By an interim order passed on 19 January, 2005, the appellants were directed not to pass any order pursuant to the report given by the medical board against the respondent. 2 Page 2 4. Pursuant to an order modifying the stay application, by an st order dated 1 July, 2011, the respondent was relieved from service and given invalidation pension as admissible under

filed a second writ petition No.42101 of 2011 challenging the aforesaid order. th 5. By the impugned judgment dated 8 January, 2014, the Allahabad High Court held on a construction of Section 47 of th the said Act that a Notification dated 10 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 JUDGMENT exemption provision would apply only to promotion and not to continuing the respondent in service. As a consequence, the st order dated 1 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. 3 Page 3 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 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 sub- section”. 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 JUDGMENT 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 . 4 Page 4 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

is, therefore, in order. 8. He argued that Sections 47 and 73 have to be harmoniously construed and so construed, Section 73 throws light on Section 47 and makes the proviso apply only to sub- section (2) thereof. He argued that in no circumstance can a disabled person, once he acquires a disability during his service, be terminated as it would go against the purpose of the Act. Further, he argued that the exemption notification dated th 10 September, 2002 would not apply on facts as the disability JUDGMENT was incurred prior to the notification. He also argued that there was discrimination against the respondent in that others with disabilities did not get their service terminated. 9. We have heard learned counsel for the parties. The Preamble of the 1995 Act states as follows:- 5 Page 5 “An Act to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region

And Whereas India is a signatory to the said Proclamation; And Whereas it is considered necessary to implement the Proclamation aforesaid.” 10. Sections 33, 47 and 73(3) & (4) are set out hereinbelow: “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— JUDGMENT ( 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. 6 Page 6 47. 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 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. JUDGMENT 73. Power of appropriate Government to make rules.— (3) Every notification made by the Central Government under the proviso to Section 33, proviso to sub-section (2) of Section 47, every scheme framed by it under Section 27, Section 30, sub-section (1) of Section 38, Section 42, Section 43, Section 67, Section 68 and every rule made by it under sub-section (1), shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of 7 Page 7

11. There is no doubt whatsoever that Mr. Mahabir Singh is right in saying that this is a beneficial legislation passed pursuant to a proclamation on the full participation and equality of people with disabilities in the Asian and Pacific region to which India is a signatory. However, we find that for the 8 Page 8 reasons given hereinafter the impugned judgment cannot be sustained.

clear that it would apply to the entire Section, for otherwise the words used would have been “this sub-section”. Quite apart from this, the language of this proviso is similar to the language of the proviso contained in Section 33. Both provisions speak of an exemption being granted having regard to the “type of work” carried on in any establishment. It is clear that given the “type of work” carried on by the armed forces or the CRPF before us, persons who have disabilities may not have any reservation for them at all pre-appointment, if exempted, for the simple reason JUDGMENT that persons suffering with disabilities (which as defined under Section 2(t) means a person suffering from not less than 40% of any disability as certified by a medical authority) may be persons wholly unfit for service required in the defence of the country. It is obvious that, if at the appointment stage, persons with disabilities need not have vacancies in posts reserved for them, equally after suffering a disability during service, a person 9 Page 9 may for the self-same reason not be able to perform what is required of him in the defence of the nation, thereby justifying his discharge from service.

that given this context, there is no rationale for exemption so far as “promotion” is concerned but no exemption so far as “dispensation” is concerned. 14. One argument that weighed with the High Court was that under the second proviso to sub-section (1), if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post. From this it was sought to be inferred that under no circumstance can an employee who acquires disability during his service have his service dispensed with. JUDGMENT This reasoning is fallacious for the reason that sub-section (1) deals with dispensing with service as well as reduction in rank. The argument that an employee’s services can never be dispensed with under Section 47(1) having due regard to the second proviso thereof fails to take into account that there is no such requirement as far as reduction in rank is concerned. If an exemption can be given so far as reduction in rank is 10 Page 10 concerned, then there is no reason why such exemption cannot be given so far as dispensing with service is concerned, as both are contained in Section 47(1) of the Act.

was argued most vehemently before us. It was stated that Section 73(3) & (4) made it clear that the proviso is only a proviso to sub-section (2) of Section 47 and that therefore it must be read only as such. To this again there are two answers. 16. It is well settled that the provisions of a statute must be read harmoniously together. However, if this is not possible then it is settled law that where there is a conflict between two Sections, and you cannot reconcile the two, you have to JUDGMENT determine which is the leading provision and which the subordinate provision, and which must give way to the other. This statement of the law is to be found in Institute of Patent Agents & Ors. v. Joseph Lockwood, 1894 A.C. 347 at 360. Lord Herschell, L.C., stated this, as follows:- “Well, there is a conflict sometimes between two sections to be found in the same Act. You have to 11 Page 11 try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other.”

High Court of Australia in Project Blue Sky Inc. v. Australian Broadcasting Authority, 153 ALR 490, in the following terms: “A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflict provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” (at pages 509-510) JUDGMENT 18. Under similar circumstances, in Smt. Laxmi Devi v. Sethani Mukand Kanwar and Two Others, 1965 (1) SCR 726, a question arose as to how one would harmonise Section 2(d) with Section 5 of the Transfer of Property Act. The effect of 12 Page 12 Section 2(d), which is a saving clause, is that the provisions of the Transfer of Property Act will apply to transfers by operation of law. Whereas Section 5 of the Transfer of Property Act

effected by acts of parties. Auction sales, being transfers effected by operation of law would, therefore, be within the purview of Section 100 (latter part) read with Section 2(d). (Section 100 provides that no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.) Section 2(d) was held to prevail over Section 5 because it is a “positive provision” which is “clear”. This Court held: JUDGMENT “This position, however, has become somewhat complicated by reason of the provisions contained in s.5 of the Transfer of Property Act. Section 5 provides, inter alia, that in the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers effected by acts of parties inter vivos, and an auction-sale clearly is not such an act. Section 5 would, therefore, appear to exclude auction sales 13 Page 13

In our opinion, the positive provision contained in s. 2(d) must prevail over the definition of "transfer of property" prescribed by s.5. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by s. 2(d). As we have already seen, the result of the saving clause enacted by s. 2(d) is to emphasise the fact that the provisions of s.57 and those contained in Chapter IV must apply to transfer by operation of law. Such a positive provision cannot be made to yield to what may appear to be the effect of the definition prescribed by s.5, and so, we are inclined to hold that notwithstanding the definition prescribed by s.5, the latter part of s.100 must be deemed to include auction sales.” (at page 733) JUDGMENT 19. A reference to these two judgments makes it clear that Section 47 is the “leading provision” and Section 73 is the “subordinate provision”. Further, Section 47 is a positive and clear provision. This is because, Section 47 is the substantive 14 Page 14 provision exempting the subject matter of Section 47 as a whole as opposed to Section 73 which is only a machinery provision by which notifications made under Section 47 are to

20. Equally, it is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. This is laid down in Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, as follows:- “18. We may mention in fairness to Counsel that the following, among other decisions, were cited at the Bar bearing on the uses of provisos in statutes: CIT v. Indo-Mercantile Bank Ltd, [AIR 1959 SC 713 : 1959 Supp (2) SCR 256, 266 : (1959) 36 ITR 1] ; Ram Narain Sons Ltd. v. Asstt. CST [AIR 1955 SC 765 : (1955) 2 SCR 483, 493 : (1955) 6 STC 627] ; Thompson v. Dibdin [(1912) AC 533, 541 : 81 LJKB 918 : 28 TLR 490] ; Rex v. Dibdin [1910 Pro Div 57, 119, 125] and Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875, 893 : 1959 Cri LJ 1231] . The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a JUDGMENT 15 Page 15

21. Viewed at in this light also, one is to read Section 47 as a whole and being read as a whole it is clear from the proviso that it would apply to “type of work” carried on in any establishment and would, therefore, apply to both dispensing with service JUDGMENT including reduction in rank as well as promotion. 22. Another interesting facet is brought out by the marginal note of Section 47 and Chapter VIII in which Section 47 falls. Chapter VIII has as its heading “non-discrimination”. Equally, the marginal note of Section 47 is “non-discrimination in government employments”. It is clear that the idea of Section 16 Page 16 47 is not to discriminate against employees who acquire disability during service. It is settled law that discrimination cannot be viewed in the abstract – the doctrine of classification

clear, therefore, that if there is an intelligible differentia having a rational relation to the object sought to be achieved, a provision will not be held to be discriminatory. It is clear that an exemption provision is based on such a classification and exempting any establishment from not dispensing with service or reduction in rank or not granting promotions has a rational relation to the object sought to be achieved, namely, that the “type of work” carried on in an establishment may be such that a disabled employee’s services may have to be dispensed with JUDGMENT and/or promotion denied. 23. Shri Mahabir Singh cited United India Insurance Co. Ltd. v. Lehru & Ors. , (2003) 3 SCC 338 at page 345 for the proposition that in a beneficial legislation what the legislature gives for the benefit of those covered by it, the court cannot take away. We are of the view that this authority will not apply for the basic reason that we are construing an exemption 17 Page 17 provision in a beneficial legislation. We have already held that the exemption provision will cover the entirety of the field of Section 47. In what facts and circumstances the Government

an establishment is obviously to be guided by the object for which the beneficial legislation is enacted together with balancing the need for exempting some establishments from a part or the whole of the provisions of the Act. On a true construction, it is clear that the legislation has “given” the Government the power to exempt any establishment from the rigours of the Act not only qua promotion but also qua termination from service and reduction of rank as has been held above. JUDGMENT 24. Learned counsel also cited before us Kunal Singh v. Union of India & Anr. , (2003) 4 SCC 524. This judgment decided that the benefit of Section 47 would be available to a person as an additional benefit even though he may get certain other benefits under the service Rules applicable to him. No question as to the proviso to Section 47 arose before the court 18 Page 18 in that case and for the purposes of the present controversy, the ratio of that decision will have little or no bearing.

th dated 10 September, 2002 will not apply for the reason that the accident took place prior to 2002. It is clear that the exemption notification will apply to all cases in which an employee’s services are dispensed with. The relevant date, therefore, is the date of dispensing with service and not the date on which the disability is incurred, for Section 47 prohibits an establishment from dispensing with the service of an employee who acquires disability during his service. Since st service was dispensed with on 1 July, 2011 (that is long after JUDGMENT the date of the exemption notification), the notification will, obviously, apply. 26. The plea of discrimination sought to be made by Mr. Mahabir Singh is based on an averment made in the reply affidavit on behalf of the petitioner (respondent herein) in the Supreme Court. The averment is as follows: 19 Page 19

JUDGMENT 27. In the rejoinder affidavit filed by the appellants this averment is denied in the following terms:- “The contents of para 5 (G-H) of reply are wrong, misconceived and hence denied. It is submitted that Central Para Military forces perform a critical role in maintaining internal security and guarding of national borders. By very nature, the job 20 Page 20

28. Apart from the plea of the disabled officers mentioned being vague, for no particulars are given as to the extent of JUDGMENT their disability, the Union has made it clear that Standing Order No.7/99 will not apply and that since the job requirements demand a high level of fitness and ability CRPF is exempted from the provisions of Section 47 of the Act. Not only has this plea not been raised before the High Court, but the plea raised before us is lacking in particulars and has to be dismissed for this reason also. 21 Page 21 29. We make it clear that the respondent, who has been occupying official accommodation, will vacate such th accommodation by 30 June, 2015. Mr. Patwalia has assured

collected from him till the date on which he vacates the said accommodation. 30. The appeals are, therefore, allowed. The judgment of the Allahabad High Court is set aside. There will be no order as to costs. ….…..…..………………………...J. (T.S. Thakur) ….…..…..………………………...J. (R.F. Nariman) New Delhi, February 26, 2015. JUDGMENT 22 Page 22