UNION OF INDIAversusSANJAY KUMAR JAIN

                        UNION OF INDIA                                 A
                              v.
                      SANJAY KUMAR JAIN

                         AUGUST I I, 2004

           [ARIJIT PASAYAT AND C.K. THAKKER, JJ.)                      B
     Service Law :

     Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995; Proviso to Sub-section 2, Section 471 C
Establishment Manual; Para J89A :

     Appointment to higher post by promotion denied on the ground that
incumbent found medically unfit-Challenge to-Allowed by Central Ad-
ministrative Tribunal holding that denial of promotion on ground of
physical disability amounts to discrimination-Affirmed by High Court- D
On appeal, Held: In terms of Section 47(2) of the Act, promotion cannot
be denied on grounds of disability-Proviso to the Section does not give
unbridled power to Government to exclude any establishment from the
application unless some specified circumstances exist and notification
thereto issued-Since no such notification issued, denial ofpromotion on E
ground of disability not justified.

      Respondent-a G roup-C employee qualified in the written test for
promotion to Group-B Post and was required to undergo medical
examination and viva voce test before being promoted. However, he
was found medically unfit. Therefore, he was not called for viva voce F
test. Respondent challenged it by filing a petition before CAT. CAT
held that denial of promotion on the ground of physical disability
amounts to discrimination. Appellant-Union of India challenged the
order, which was dismissed by th~ High Court. Hence the 1>resent
appeal.                                                                G
     It was contended for the appellant that the appropriate Govern-
ment could exclude by notification any establishment from protection
to disabled as provided under the provisions of Section 47(2).

     Dismissing the appeal, the Court                                  H
                                 463
    464               SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A       HELD 1.1. Sub-!:ection (2) of Section 47 of the Persons with
  Disabilities (Equal Opportunities, Protection of Rights and Full
  Participation) Act, 1995, in crystal clear terms, provides that no
  promotion shall be denied to a person merely on the ground of his
  disal?ility. Obviously, in the instant case, the respondent was not
B considered for promotion on the ground that he was considered to be
  visually handicapped. Proviso to sub-section (2) of Section 47 of the Act
  only permits the appropriate Government to specify by Notification
  any establishment whkh may be exempted from the provisions of the
  Section. It does not givt~ unbridled power to the Government to exclude
C any establishment from the purview of the Section, the exclusion can
  only be done under c~·rtain specified circumstances. The notification
  can be issued 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 said provisions. The proviso does
  not operate in the absence of the notification. (468-E-F-G-H; 469-8)
D
          1.2. The normal tilnction of a proviso it 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. When one
    finds a proviso to a S1!ction the natural presumption is that, but for
E   the proviso, the enacting part of the Section would have included the
    subject matter of the 1~roviso. The proper function of a proviso is to
    except and to deal with a case which would otherwise fall within the
    general language of 01e main enactment and its effect is confined to
    thal case. It is a qualification of the preceding enactment which is
F   expressed in terms too general to be quite accurate. As a general rule,
    a proviso is added to :m enactment to qualify or create an exception
    to what is in the enactment and ordinarily, a proviso is not interpreted
    as stating a general rule. [469-A; D-El

         Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash
G   Chandra Yograj Sinha, !\IR (1961) SC 1596; Calcutta Tramways Co. Ltd.
    v. Corporation ofCalc11tta, AIR (1965) SC 1728; A.N. Sehgal & Ors. v.
    Raje Ram Sheoram & Ors,, AIR (1991) SC 1406; Tribhovandas Haribhai
    Tamboli v. Gujarat R£'venue Tribunal & Ors., AIR (1991) SC 1538;
    Kera/a State Housing Board & Ors. v. Ramapriya Hotels (P) Ltd. & Ors,,
H   (19941 5 SCC 672 and Ali MK & Ors. v. State of Kera/a & Ors,, (2003)
                   U.O.l. v. S.K.JAIN [PASA YAT, J.]                  465

4 SCALE 197, relied on.                                                       A
     West Derby Union v. Metropolitan Life Assurance Co., (1897) AC
647 HL; Forbes v. Git, (1922) I A.C. 256; R. v. Taunton, St. James, 9
B. & C. 836; Re Barker, 25 Q.B.D. 285 and Jennings v. Kelly, (1940) A.C.
206, referred to.
                                                                              B
     Coke upon Littleton 18th Edition, 146, referred to.

      1.3. If a notification in terms of the proviso to sub-section (2) of
Section 47 of the Act is issued by the appropriate Government the same
shall be operative in respect of the establishment which is specifically C
exempted. That is not the position so far as the present case is
concerned. Therefore, on the facts of the case, the order of the Tribunal
as affirmed by the High Court suffers from no infirmity to warrant
interference by this Court. (470-F-G)

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5178 of D
2004.

     From the Judgment and Order dated 4.12.2002 of the Delhi High
Court in W.P. No. 5898 of 2002.

    M.N. Krishnamani, Hemant Sharma and Mrs. Anil Katiyar for the E
Appellant.

     Respondent-in-person.

     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J. : Leave granted.                                      F
      The Union oflndia calls in question legality of the judgment rendered
by a Division Bench of the Delhi High Court dismissing the Writ Petition
filed by it while affirming the decision rendered by Central Administrative
Tribunal, Principal Bench, New Delhi (in short 'CAT').
                                                                              G
     Factual position in a nutshell is as follows:

     The respondent while working 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 53 l(b) of the H
    466                 SUFREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A Indian Railway Establishment Manual (in short the 'Establishment Manual').
    In terms of the Rail~ay 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
B   pigments on both the eyes. This is a disease which affects the eye-sight
    progress.ively. He w2s considered unfit as he may become visually
    handicapped in future. The respondent was therefore not called for viva
    voce test. He filed O.A. No. 439/2001 before the CAT challenging the order
    dated 20.9.2000 whereby it was indicated that he was not to be called for
    viva voce test as he had been declared medically unfit. The CAT after
C   hearing the parties c<me to hold that while <.:onsidering the case of the
    respondent (applican-: before it) the provisions of The Persons with
    Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
    Act, 1995 (in short the 'Act') were not kept in view. CAT took note of
    the fact that a new paragraph l 89A was introduced in the Establishment
D   Manual which clearl: 1 laid down that there shall not be discrimination in
    the matter of promoton merely on the ground of physical disability. The
    application was accordingly allowed by the CAT.

         The Union of hdia questioned correctness of CA T's order by filing
E   a Writ Petition whicL was dismissed by the impugned judgment. The High
    Court took note of sub-Section (2) of Section 47 of the Act to hold that
    CA T's order is perfectly in order.

          In support oft~1e appeal, it was contended by Mr. M.N. Krishnamani,
    learned senior coun~;el that while referring to sub-Section (2) Section 4 7
F   of the Act both the CAT and the High Court overlooked the proviso to sub-
    section (2) of Section 47 which permits the appropriate Government to
    exclude by notific<.tion any establishment from the provisions of the
    Section. According to him, looking at the nature of the duties which
    employees of Group-B have to undertake, a physically handicapped
G   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 4 7 of the Act can be
H   denied and the case at hand is one of such .:ases.
                   U.O.I. v. S.K.JAIN [PASAYAT, J.]                    467

     The respondent who appeared in person submitted that the judgments A
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 which reads as follows:
                                                                               B
            "Section 47: Non-discrimination in Government
        employments-( I) 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 C
         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 D
         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:
                                                                               E
                      Provided that the appropriate Government may, hav-
               ing regard to the type of work carried on in any establish-
               ment, by notification and subject to such conditions, if any,
               as may be specified in such notification, exempt any estab-
               lishment from the provisions of this section."                  F
       The Act has been enacted, as the Preamble of the Act indicates, to
give effect to the Proclamation on the Full Participation and Equality of
the People with Disabilities in the Asian and Pacific Region. In a meeting
to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002
convened by the Economic and Social Commission for Asian and Pacific G
Region, which was held at Beijing on !st to 5th December, 1992, a
proclamation was adopted on the Full Participation and Equality of People
with Disabilities in the Asia and the Pacific Region. Our country is a
signatory to the said prociamation. The proclamation was on the following
lines:                                                                     H
    468                 Sl,J,PREME COURT REPORTS [2004] SUPP. 3 S.C.R ..

A        "To give ru11 effect to the proclamation it was felt necessary to enact
    a legislation to' provide for 1.he following matters:

             (i)    to spell out ~he responsibility of the State towards the
                    prevention of disabilities, protection of rights, provision of
                    medical care, ~ducation, training, employment and rehabili-
B                   tation of persons with disabilities;

             (ii)   to create barr er free environment for persons with disabili-
                    ties;


c            (iii) to remove any discrimination against persons with disabili-
                   ties in the sharing of development benefits, vis-a-vis non-
                   disabled persons;

             (iv) to counteract any situation of the abuse and the exploitation
                  of persons with disabilities;
D
             (v)    to lay down a strategy for comprehensive development of
                    programmes and services and equalization of opportunities
                    for persons with disabilities; and

             (vi) to make special provision of the integration of persons with
E                 disabilities nto the social mainstream."

          Sub-Section (I) ofS<ction 47 in clear terms provides that there cannot
    be any discrimination in ~overnment employments and no establishment
    shall dispense with or reduce in rank an employee whatsoever during his
F   service. Sub-section (2) is relevant for our purpose. It, in crystal clear terms,
    provides that no promotio·1 shall be denied to a person merely on the ground
    of his disability. Obviously, in the instant case, the respondent was not
    considered for promotion on the ground of as he was considered to be
    visually handicapped. Much stress was laid by Mr. Krishmani on the pro-
    viso to sub-Section (2) of Section 47. The same is not in any way helpful
G   to further the case of the appellant. In fact it only permits the appropriate
    Government to specify by notification any establishment which may be
    exempted from the provisions of Section 47. It does not give unbridled
    power to exclude any establishment from the purview of Section 47. The
    exclusion can be only done under certain specified circumstances. They
H   are:
                    U.0.1. v. S.K.JAIN [PASAYAT, J.]                    469

     (i)   issuance of a notification.                                        A
     (ii) prescription of requisite conditions in the notification.

      The notification can be issued when the appropriate Government,
having regard to the type of work carried on in any establishment thinks      B
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 C
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. Corpo-
ration of Calcutta, AIR ( 1965) SC 1728); when one finds a proviso to a D
section the natural presumption is that, but for the proviso, the enacting
part of the section would have included the subject matter of the proviso.
The proper function of a proviso is to except and to deal with a case which
would otherwise fall within the general language of the main enactment
and its effect is confined to that case. It is a qualification of the preceding E
enactment which is expressed in terms too general to be quite accurate. As
a general rule, a proviso is added to an enactment to qualify or create an
exception to what is in the enactment and ordinarily, a proviso is not
interpreted as stating a general rule. "If the language of the enacting part
of the statute does not contain the provisions which are said to occur ,in
it you cannot derive these provisions by implication from a proviso." Said F
Lord Watson in West Derby Union v. Metropolitan Life Assurance Co.
(1897) AC 647 (HL). Normally, a proviso does' not travel beyond the
provision to which it is a proviso. It carves ouf'ltYt''l?Xtepiion to the main
provision to which it hat been enacted as a proviso and to no other. (See
A.N Sehgal and Ors. v. Raje RamSheoram and Ors., AIR (1991) SC 1406, G
Tribhovandas Haribhai Tambo/i v. Gujarat Revenue Tribunal and Ors.,
AIR (1991) SC 1538 and Kera/a State Housing Board and Ors. v.
Ramapriya Hotels (P) Ltd. and Ors., [1994] 5 SCC 672).                            •

     "This word (proviso) hath divers operations. Sometime it worketh H
    470                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A a qualification or limitatbn; sometime a condition; and sometime 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 obi igation created by the earlier clause, the later
B   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) I A.C. 256).

C       A statutory proviso " s something engrafted on a preceding enact-
    ment" (R. v. Taunton, St hmes, 9 B. & C. 836).

         "The ordinary and proper function of a proviso coming after a general
    enactment is to limit that general enactment in certain instances" (per Lord
D   Esher in Re Barker, 25 Q.B.D. 285).

         A proviso to a section cannot be used to import into the enacting part
    something which is not there, but where the enacting part is susceptible
    to several possible meanings it may be controlled by the proviso (See
    Jennings v. Kelly, (I 940) /\.C. 206).
E
        The above position was noted in Ali MK. & Ors. v. State of Kera/a
    and Ors., (2003) 4 SCALE 197.

          Though several documents were referred to contend that the intention
F of the employer was to exclude certain establishments, a bare perusal
  thereof shows that they have no relevance and do not in any way fulfil the
  requirements of the proviso to Sub-section (2) of Section 47. It goes
  without saying that if a notification in this regard is issued by the
  appropriate Government the same shall be operative in respect of the
  establishment which is spec. ifically exempted. That is not the position so
G far as the present case is concerned. Therefore, on the facts of the case,
  the order of the Tribunal as affirmed by the High Court by the impugned
  judgment suffers from no in'irmity to warrant our interference. The appeal
  fails and is accordingly dismissed with no order as to costs.

    S.K.S.                                                     Appeal dismissed.