TMI Blog2004 (8) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up-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. 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. Since the controversy revolves around Section 47 of the Act, it would be appropriate to quote the provision whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities in the Asia and the Pacific Region. Our country is a signatory to the said proclamation. The proclamation was on the following lines: To give full effect to the proclamation it was felt necessary to enact a legislation to provide for the following matters: (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-`-vis non-disabled persons; (iv) to counteract any situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... metime a covenant (Coke upon Littleton 18th Edition, 146) If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole (Per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256). A statutory proviso is something engrafted on a preceding enactment (R. v. Taunton, St James, 9 B. C. 836). The ordinary and proper function of a proviso coming after a general enactment is to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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