TMI Blog2015 (2) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(d). 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 - 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 including reduction in rank as well as promotion. Apart from the plea of the disabled officers mentioned being vague, for no particulars are given as to the extent of 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. The respondent, who has been occupying official accommodation, will vacate such accommodation by 30th June, 2015 - appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved for persons suffering from- (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. 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 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke it 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 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 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. 13. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, 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) 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 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 be laid before each House of Parliament. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is an important adjunct to the doctrine of discrimination. It is 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 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 exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and not being invalidated from service in accordance to Para 9(a)(i) of Standing Order No.7/99 of CRPF. Many disabled persons has been retained or re-instated in CRPF and other armed forces after enactment of the Act of 1995 and amendment of rule 20(2) of the C.C.S. (Leave) Rules 1972 as well as the judgment passed by this Honorable Court reported in 2003(2) ESC (SC) Kunal Singh Vs. U.O.I.. Even the CRPF itself has retained such disabled officer Shri Pratap Singh, Deputy Commandant till superannuation and retained Shri Y.N. Ray and Sameer Shrivastava who became disabled in the rank of Assistant Commandant and granted regular promotion and at present they are Commandant. Two other officers Sh. R.K. Singh and Sh. P.R. Mishra have also been retained in service despite their disability. Similarly the B.S.F. also has not only retained Shri Surinder Singh but had promoted him up to his present rank of Second in Command. The Indian Army has retained similarly wheel chair bound physically disabled (paraplegic) Officer S.K. Rajdan and promoted him to the rank of Major General and Indian Air Force also retained its wheel chair bound disabled (paraplegic) trainee cadet Harjot Singh. 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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