http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (civil) 1789 of 2000

PETITIONER:

Kunal Singh

RESPONDENT:

Union of India & Anr.

DATE OF JUDGMENT: 13/02/2003

BENCH:

SHIVARAJ V. PATIL & H.K. SEMA

JUDGMENT:

J U D G M E N T

SHIVARAJ V. PATIL J.

The 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.

The medical aid given to him did not help.

Ultimately, 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.

Since 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.

The 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.

In opposition, the learned Senior Counsel for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

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.

According 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.

For 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.

"2. Definitions In this Act,

unless the context otherwise requires, -

(a) to (d)..............................

(e) "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 development;

(f) to (h).............................

(i) "disability" means-

(i) to (iv).......................

(v) locomotor disability;

(vi) to (vii).....................

(j) ..................................

(k) "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;

(l) to (n).............................

(o) "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."

(p) to (s)..............................

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

(t) "persons with disability" means a

person suffering from not less than

forty per cent of any disability as

certified by a medical authority;

(u) to (v)..............................

(w) "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;

"47. Non-discrimination in Government

employments - (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 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).

Short question that arises for consideration in

this appeal is whether the appellant is entitled for

the benefit of Section 47 of the Act.

From 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

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;

(ii) hearing 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.

Section 47 is included in Chapter VIII of the Act.

Chapter 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.

The 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.

Chapter 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.

Such 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

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.

The 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.

We 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

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.

For 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.

We direct the respondents to give relief in terms of

Section 47 of the Act.

There shall be no order as to costs.