2026 INSC 689 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.13783/2015

UNION OF INDIA & ORS. …APPELLANTS

VERSUS

BALI RAM NO.850808321 …RESPONDENT

JUDGMENT

DIPANKAR DATTA, J.

THE APPEAL

1. We are called upon to examine in this appeal by special leave preferred

by the Union of India, the Director General, Central Reserve Police

Force

1

and two other officers

2

of the CRPF, the legality and correctness

of the judgment and order dated 23

rd

December 2014

3

of a Division

Bench of the High Court of Himachal Pradesh

4

dismissing the

appellants’ intra-court appeal [Letters Patent Appeal No. 25 of 2009

5

],

1

CRPF

2

appellants

3

impugned judgment

4

High Court

5

LPA

2

which was laid by them to challenge the judgment and order of a Single

Judge dated 11

th

August 2008 allowing the respondent’s writ petition

6

directing that he be reinstated in service with all consequential

benefits.

FACTS

2. The facts are simple and undisputed.

3. Respondent was enrolled in the CRPF as a Constable (Driver) in 1985,

upon being found medically fit at the material time. He continued in

service until 1996, when he developed an ophthalmic condition. A

medical examination conducted at the Government Hospital, Jammu,

revealed that the respondent was suffering from Disseminated

Choroiditis and Retinal Atrophic Patches with Macular Involvement,

resulting in complete blindness in the left eye and partial impairment

of vision in the right eye.

4. In view of the respondent's medical condition, the Chief Medical Officer,

Station Hospital, CRPF, Jammu, recommended that his case be placed

before the Departmental Rehabilitation Board. Upon assessment, the

respondent was found unfit to perform driving as well as combatant

duties and was, accordingly, referred to the Medical Invalidation Board

in 1997. The Medical Board constituted at the Base Hospital, CRPF,

Hyderabad, conducted a medical examination of the respondent and

6

Civil Writ Petition No. 1371 of 2005

3

concluded that he was permanently incapacitated and unfit for further

service in any capacity in the CRPF.

5. Pursuant thereto, a notice was served on the respondent calling upon

him to submit a representation, if any, against the proposed action of

medical invalidation. In response, the respondent submitted an

application seeking grant of full financial and service benefits upon his

invalidation from service. Thereafter, by an order dated 11

th

March,

1998, the respondent was medically invalidated from service.

Subsequently, on 15

th

October, 2000, the respondent submitted a

further representation seeking redressal of his grievance; however, the

same came to be rejected by the competent authority.

6. Aggrieved thereby, the respondent approached the High Court with a

writ petition

7

. The High Court disposed of the same on 5

th

January,

2005 with a direction to the appellants to consider and decide the

grievance expressed in the legal notice submitted on behalf of the

respondent, on or before 15

th

February, 2005. Pursuant thereto, the

appellants reconsidered the matter but once again rejected the

respondent’s claim vide an order dated 27

th

June, 2005, holding that

the ailment suffered by him was neither attributable to nor aggravated

by service conditions. It was further held that the respondent was

entitled only to a lump-sum payment of Rs. 15,000/- in accordance

with the applicable rules, as his disability was not found to be

attributable to his service.

7

Civil Writ Petition No. 206 of 2003

4

7. Thereafter, the respondent instituted the writ petition, out of which this

appeal arises. He prayed for directions to grant invalid / disability

pension on account of 100% disability from the date of his discharge

together with consequential benefits and interest @ 18% per annum

and to constitute a fresh Medical Board for assessment of his disability;

and to declare the orders of medical invalidation and rejection of his

prayers as null and void.

PROCEEDINGS BEFORE THE SINGLE JUDGE

8. The Single Judge heard the contesting parties on affidavits. In allowing

the writ petition on contest, vide the judgment and order dated 11

th

August, 2008, the Single Judge travelled beyond the pleadings and the

prayers of the respondent by not limiting the scrutiny to examining the

correctness of the order of medical invalidation and / or his entitlement

to invalid / disability pension; instead, the Single Judge invoked the

provisions of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995

8

to secure the

appellants’ statutory duty in the light of the decisions of this Court in

Kunal Singh v Union of India

9

and Bhagwan Dass v Punjab State

Electricity Board

10

. Specific findings were returned by the Single

Judge that the appellants had acted in breach of Section 47 of the PwD

Act.

8

PwD Act

9

(2003) 4 SCC 524

10

(2008) 1 SCC 579

5

9. The operative directions given by the Single Judge read as follows:

“In view of the aforesaid observations and reasoning, Annexure P-2

dated 11.3.1998, Annexure P-6 dated December, 2000 and Annexure

P-9 dated 27.6.2005, respectively are quashed and set aside. The

petitioner will be deemed in service and he is entitled to all the annual

increments till the date of his retirement. The amount of terminal

benefits which has been paid in (sic, to) him shall be adjusted against

the amount of his salary from 11.3.1998 till date the (sic, he) will

continue in service till the date of his superannuation according to

the service record. He is directed to be reinstated and all due

payments, after adjustments as directed, should be made to him

within ten weeks from the date of presentation of the copy of the

judgment before respondent No.2. the writ petition is allowed with

costs, which are quantified at Rs.3,000/-.”

THE IMPUGNED JUDGMENT

10. Appellants, however, did not accept the judgment and order of the

Single Judge with grace; instead, they preferred the LPA wherein an

interim order of stay resulted in suspension of the directions of the

Single Judge. The Division Bench of the High Court took nearly seven

years to decide the LPA. After tracing the history as well as the object

and purpose the PwD Act was intended to serve and upon considering

the decisions of this Court in Dharamvir Singh v. Union of India

11

,

Kunal Singh (supra), National Federation of Blind v. Union Public

Service Commission

12

and Javed Abidi v. Union of India

13

, the

Division Bench reasoned that mere grant of invalid / disability pension

was no ground to deny the protection of Section 47 of the PwD Act to

the respondent. While holding the appellants to be at fault in breaching

Section 47 of the PwD Act and recording that the findings of the Single

11

(2013) 7 SCC 316

12

(1993) 2 SCC 411

13

(1999) 1 SCC 467

6

Judge did not suffer from any infirmity, the LPA stood dismissed vide

the impugned judgement.

PROCEEDINGS BEFORE THIS COURT

11. Appellants did not let the matter to rest; they set out to defeat the

verdicts delivered by the High Court by applying before this Court for

special leave to appeal under Article 136 of the Constitution with an

application for condonation of delay.

12. On 23

rd

November, 2015, a coordinate Bench condoned the delay,

granted leave and stayed implementation of the impugned judgment.

13. The civil appeal, having awaited its turn across Benches for a decade,

now awaits its quietus before us. So does the respondent, who has

awaited justice for more than two decades.

CONTENTIONS ON BEHALF OF THE APPELLANTS

14. Mr. Banerjee, learned Additional Solicitor General, for the appellants

urged several grounds to assail the impugned judgment and pray ed

for its reversal.

15. First, Mr. Banerjee asserted that, in the present case, the respondent

was found to have completely lost vision in one eye and was suffering

from partial loss of vision in the other. At the relevant time, he was

serving as a driver in the CRPF. In view of his medical condition, he

was rendered wholly unsuitable for driving duties. Moreover, he was

also found unfit to perform any function of a combatant. These findings

stand duly affirmed by the Medical Board constituted at the Base

7

Hospital, CRPF, Hyderabad, which concluded that the respondent was

permanently incapacitated for further service in any capacity in the

CRPF. Thus, the question of retaining the respondent in the service of

the CRPF did not arise and regard being had to his ophthalmic condition

and the nature of disability acquired by him, the respondent could not

have been accommodated on an alternate post. He sought to impress

upon us that the appellants not being at fault, the Division Bench

seized of the LPA was expected to correct the egregious exercise of

jurisdiction by the Single Judge in ordering reinstatement of the

respondent on an alternate post which it erroneously failed to do.

16. Mr. Banerjee invited our attention to the relevant averment that post

medical invalidation, the respondent was granted whatever financial

benefits he was entitled to under the prevailing rules/circulars

including monthly pension.

17. Secondly, Mr. Banerjee submitted that the Single Judge erroneously

placed reliance upon Section 47 of the PwD Act. Such reliance, he

contended, was wholly misplaced in view of the notification dated 10

th

September, 2002

14

issued by the Ministry of Social Justice and

Empowerment, Government of India in exercise of the powers

conferred by the proviso to Section 47 of the PwD Act, whereby all

categories of combatant personnel of the Central Para Military Forces

15

,

14

NOTIFICATION

15

CPMF

8

including the CRPF, were exempted from the application of the said

provision.

18. Relying on the decision of this Court in Union of India v. Dileep

Kumar Singh

16

, Mr. Banerjee contended that the validity of the

NOTIFICATION was upheld therein. This Court, it was highlighted, had

recognized that the exemption granted under the proviso to Section

47 was justified having regard to the nature of duties performed by

personnel of the CRPF and the other armed forces, where type of work

discharged by the personnel is an important consideration and

continuation in service may not always be feasible in the event of

disability.

19. Thirdly, Mr. Banerjee contended that the doctrine of waiver is clearly

attracted in the facts of the present case. It was submitted that at no

stage did the respondent seek any relief founded upon Section 47 of

the PwD, Act, nor did he ever pray for reinstatement in service ;

instead, he accepted pension and other benefits extended to him. In

all his representations, as well as the writ petition filed by him in 2005,

the respondent confined his claim to the grant of 100% invalid /

disability pension and other consequential benefits. Having consciously

elected to pursue only such relief, the respondent cannot subsequently

seek, nor could the Court grant, relief of reinstatement and

continuation in service founded upon a statutory provision that was

neither invoked by him nor attracted in the given factual scenario.

16

(2015) 4 SCC 421

9

20. In the alternative, Mr. Banerjee submitted that much water having

flown under the bridge since the impugned judgment was rendered

and the respondent , by now, having attained the age of

superannuation, question of his reinstatement in service does not

arise. While appealing to our conscience, he urged that the directions

made by the Single Judge, since affirmed by the Division Bench , if

allowed to stand, would impose a substantial financial burden upon the

State exchequer (in excess of Rs.82 lakh on account of salary and

allowances only). He, therefore, prayed that the impugned judgment

be suitably modified in the interests of justice and equity in such

manner we consider just and proper.

CONTENTIONS ON BEHALF OF THE RESPONDENT

21. Mr. Dhawan, learned counsel appearing for the respondent,

assiduously opposed the submissions advanced by Mr. Banerjee.

22. Mr. Dhawan urged that the PwD Act, 1995, and in particular Section

47 thereof, is a social welfare legislation intended to protect employees

who acquire a disability during service. Relying on Kunal Singh

(supra), he submitted that Section 47 casts a statutory obligation on

the employer to protect an employee acquiring disability during

service.

23. According to Mr. Dhawan, the respondent was fully entitled to the

protection afforded by Section 47 at the time of his invalidation from

service, as the order of medical invalidation was passed on 11

th

March,

10

1998 whereas the NOTIFICATION exempting combatant personnel of the

CRPF and other CPMFs from the application of Section 47 came to be

issued only on 10

th

September, 2002. It was contended that the

NOTIFICATION operates prospectively and contains no indication of any

retrospective application. Therefore, the order of invalidation was in

the teeth of Section 47 of the PwD Act.

24. Mr. Dhawan further submitted that the respondent had, at no stage,

waived his statutory rights under Section 47 of the PwD Act. It was

contended that the respondent, having lost his vision, was not even

aware of the protection available to him under the said provision and,

consequently, confined his claims to seeking invalid / disability pension

and other service benefits admissible under the applicable rules. It was

further urged that the appellants never informed the respondent of his

entitlement under Section 47 of the PwD Act, despite being under an

obligation to act fairly. He submitted that this lack of awareness on the

part of the respondent was rightly noticed by the Single Judge in the

judgment dated 11

th

August, 2008, which also granted the protection

of Section 47 of the PwD Act in ordering relief.

25. Next, Mr. Dhawan argued that to constitute waiver, there has to be an

intentional relinquishment of a known right; and the respondent being

wholly unaware of the right guaranteed to him under Section 47, no

question of relinquishment of a known right did arise. In these

circumstances, he argued that no inference of waiver can be drawn

against the respondent.

11

26. That apart, it was Mr. Dhawan’s contention that the plea of waiver was

never raised either in the LPA or in the grounds of appeal presented

before this Court. Submission was made that a plea taken for the first

time in course of hearing ought not to be entertained.

27. Finally, Mr. Dhawan submitted that the appellants having breached the

statutory duty imposed by Section 47 of the PwD Act cannot and

should not be heard to urge that the Single Judge overreached in

protecting the respondent.

28. On the aforesaid grounds, Mr. Dhawan prayed for dismissal of the civil

appeal.

QUESTION

29. These being the rival contentions, we are tasked to decide the following

question:

Whether the Single Judge rightly enforced the appellants’ duty under

Section 47 of the PwD Act by making the directions noted above in

paragraph 9 and also as to whether the Division Bench was grossly

wrong in not reversing such directions?

ANALYSIS AND REASONS

30. Learned counsel for the parties have been heard and the impugned

judgment as well as the judgment of the Single Jud ge perused

together with the other materials on record.

31. Section 47 of the PwD Act being at the centre of debate, it is required

to be noted. It reads:

12

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 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.

32. The answer to the question formulated by us seems to squarely lie in

Kunal Singh (supra), rendered more than two decades back, where

this Court held that the PwD Act imposes a positive obligation on the

employer to shift the disabled employee and not wait for him to ask

for such shifting.

33. However, without truncating the adjudicatory process by merely

relying on Kunal Singh (supra), we propose to deal with each of Mr.

Banerjee’s objections while rendering our decision before we finally

draw guidance from Kunal Singh (supra) and the other precedents in

the field.

34. In course of hearing, we had noticed complete absence of pleadings

and prayers in the writ petition in relation to invocation of the PwD Act

by the respondent. At the same time, we do not find any ground raised

by the appellants either in their LPA before the Division Bench or in the

civil appeal before us to the effect that the Single Judge travelled

beyond the pleadings and the prayers in the writ petition. Since no

13

ground has been raised, it is open to us not to dilate on this aspect

any further. However, we feel it necessary to lay down the yardstick to

be applied where the pleadings are skeletal and prayers deficient, yet,

the material on record establishes that denial of wider relief would

perpetuate injustice merely for want of proper legal assistance.

A. Absence of requisite pleadings and specific prayers – when not

fatal?

35. The Supreme Court in multiple rulings has cautioned that in exercising

writ jurisdiction under Article 226 of the Constitution, the High Courts

must confine themselves to the pleadings and the prayer clauses; and

granting relief beyond what is prayed for is not permissible in law. One

may profitably refer to the decision in Bharat Amratlal Kothari v.

Dosukhan Samadkhan Sindhi

17

in this regard.

36. The Code of Civil Procedure, 1908

18

, which is applicable to suits,

envisions under Order VII that the court cannot traverse beyond the

pleadings and make out a case which was never pleaded, such principle

having originated from the fundamental legal maxim secundum

allegata et probata, i.e., the court will arrive at its decision on the basis

of the claims and proof led by the parties. Law is, again, well-settled

that when a point is not traceable in the pleas set out either in a plaint

or a written statement, findings rendered on such point by the court

would be unsustainable as that would amount to an altogether new

17

(2010) 1 SCC 234

18

CPC

14

case being made out for the party. The underlying reason is that of

fairness. The opponent must know the case he/it has to meet. He / it

cannot be taken by surprise at the hearing. To grant unclaimed relief

without putting him / it on notice would obviously result in violation of

natural justice and, therefore, the court ought to desist from doing so.

37. However, the rule that requires the parties to be strictly confined to

the pleadings and the prayer clauses is not an inflexible rule insofar as

exercise of writ jurisdiction is concerned.

38. Justice is a virtue which transcends all barriers. Neither the rules of

procedure nor technicalities of law can stand in its way. Even the law

bends before justice. The entire concept of writ jurisdiction exercised

by the higher courts is founded on equity and fairness (see: S.

Nagaraj v. State of Karnataka

19

).

39. Ex facie, Article 226 which is couched in comprehensive phraseology

confers wide power on the high courts to reach injustice wherever it is

found. Apart from writs, the high courts may issue orders or directions

in the nature of writs enabling them to mould the reliefs to meet the

peculiar and complicated requirements of this country (see: Dwarka

Nath v ITO

20

).

40. Article 226 confers a power that is plenary, equitable and discretionary,

and is not one bound by the rigidities of law. Even in the contractual

field, an arbitrary State action could be liable to judicial review (see:

19

1993 Supp (4) SCC 595

20

AIR 1966 SC 81

15

ABL International Ltd. v Export Credit Guarantee Corporation

of India

21

).

41. Although in exercise of writ jurisdiction the high courts are guided by

the principles flowing from the CPC, they are not bound by it (see:

Puran Singh v. State of Punjab

22

). Undoubtedly, the high courts’

writ jurisdiction under Article 226 is wider than the jurisdiction of the

civil courts.

42. Thus, read and understood, we consider Article 226 to be a reservoir

of equity which is meant to secure justice to the party aggrieved by

omission or failure to perform a duty by an authority within the

meaning of Article 12 of the Constitution. Rather than being stifled by

technical pleas raised by such authority to resist its exercise, in an

exceptional case, the high court may do what the justice of the case

demands. There could be several exceptional cases warranting such

treatment but for the present, we wish to outline only one.

43. One of the exceptions is when the court is convinced that the petitioner

is legally entitled to more than what has been claimed, but might have

claimed less due to ignorance or bona fide mistake or inelegant

drafting of the writ petition by his lawyer. Since substantive justice

cannot be allowed to be trumped by technicalities, if the record before

the high court clearly evinces entitlement of the suitor to a wider relief

than what is claimed, the opponent is put on notice and he/it has no

21

(2004) 3 SCC 553

22

(1996) 2 SCC 205

16

answer, much less adequate answer, and thereby, no prejudice is

caused to him/it, and it is found that the opponent is seeking to use a

procedural technicality as a shield for its own statutory breach, the

court in an appropriate case may, in its discretion, grant such relief as

the suitor is found entitled.

44. However, there is a need to sound a word of caution. While the high

courts are expected to stick to the pleadings and the prayers, and not

wander beyond, by observing the rule of discipline that exists to

prevent judicial overreach and surprise, the exception to the rule of

doing justice despite deficient pleadings in a writ petition ought to be

sparingly invoked and judiciously applied where the law and the record

disclose a clear entitlement of the suitor and the court is convinced

that upholding the plea raised by the opponent, based on technicality,

would defeat the right. A judge who ignores both the rule and the

exception, ends up either shackled by technicality or exposes himself

to be accused of judicial activism.

B. What is Waiver? When can such plea be successfully pursued?

45. The meaning of ‘waiver’ has been explained by this Court in numerous

decisions. Reference to the same would add to the length of this

judgment and, hence, we refrain from adverting to the same.

46. The essence, however, of all such decisions is that waiver, in law, is an

intentional relinquishment of a known right or advantage, benefit,

claim or privilege by a person which, except for such waiver, he would

have enjoyed. As per the precedents, waiver must have three

17

elements. To constitute waiver, what is required to be proved by the

party raising the plea is that (i) a person (the other party to the lis

against whom waiver is claimed) has a right; (ii) such person has clear

knowledge of that right; and (iii) despite the knowledge (of an existing

right), that person has voluntarily and consciously given up that right.

Mere silence or inaction or delay to enforce the existing right does not

constitute waiver, since there must be a clear conduct revealing that

the right has been given up.

47. It is important to remember that waiver of a statutory right is generally

disfavoured particularly when the statute is for public welfare or the

waiver would be contrary to public policy.

48. We may only refer to the decision in Krishan Lal v. State of J & K

23

,

where this Court was considering whether the requirement of giving

copy of the proceeding of the inquiry mandated by Section 17(5) of

the provisions of the Jammu and Kashmir (Government Servants)

Prevention of Corruption Act, 1962 is for the benefit of the individual

concerned or serves a public purpose. Having noted the legal position

that a mandatory provision can be waived if the same is aimed to

safeguard the interest of an individual and such provision has not been

conceived in the public interest, it was held that if it be the former then

the same can be waived; if it be the latter, it cannot be.

23

(1994) 4 SCC 422

18

DID THE RESPONDENT WAIVE HIS RIGHT?

49. Viewing the objection of waiver raised by Mr. Banerjee in the prism of

the aforesaid settled position in law, we have no doubt that it is

unworthy of consideration and liable to be rejected without much ado.

Whether or not a party has waived his right has to flow from his

conduct and is, essentially, a question of fact. We have not been able

to find either in the LPA or in this appeal, any point of waiver having

been pleaded by the appellants. Without a pleading, a plea of waiver

need not be adjudicated.

50. The Single Judge, recorded a finding of fact accepting the respondent’s

version that he had no knowledge of Section 47, PwD Act conferring a

right on him to be continued in service notwithstanding his impairment

of vision. In the LPA, no challenge was laid to such finding. Appellants

neither disputed before the Single Judge nor before the Division Bench

that the respondent’s disability was not covered by the beneficial

provisions of the enactment. It has also not been disputed before this

Court. In such a situation, to attract waiver, what was required of the

appellants was to demonstrate that the respondent was aware of his

right under Section 47, yet, he elected to give it up while preferring to

receive invalid/disability pension. However, there is no material on

record to suggest that the respondent had been informed by the

appellants of a right available to him under the PwD Act and that he

relinquished his claim for enforcement of such right. Therefore, the

19

second and the third elements to constitute a waiver are absent in the

present case.

51. On the contrary, paragraphs 2 (c)

24

of the LPA and 5 (C)

25

& (F)

26

of

this civil appeal make the insensitive approach of the appellants too

obtrusive not to attract attention.

52. The objection founded on waiver is thoroughly misconceived and is,

thus, overruled.

EFFECT OF THE NOTIFICATION

53. According to Mr. Banerjee, the NOTIFICATION was misread by the Single

Judge as well as by the Division Bench. We disagree.

54. The NOTIFICATION upon which the appellants place heavy reliance,

exempting combatant personnel of the CPMF from the application of

Section 47 of the Act, was issued only on 10

th

September, 2002. The

NOTIFICATION, for the sake of completeness of discussion, is reproduced

hereunder:

“In exercise of the powers conferred by proviso to Section 47 of The

Persons With Disabilities (Equal Opportunities, Protection of Rights And

Full Participation) Act, 1995 (1 of 1996) the Central Government having

24

(c) That the Hon’ble Single Judge has erred in directing the present appellants to

reinstate the respondent in service against the supernumerary post in the face of the fact

that the respondent had turned blind and his services could not have been utilized

anywhere in the department. He was completely disabled and cannot be paid salary while

sitting idle. The respondent has rightly been granted pension @ Rs.1275/- p.m.

25

(C) Because the Hon’ble High Court erred in not (sic) Union of India & Ors. V/s Dileep

Kumar Singh (Civil Appeal Nos. 2466 -67/2015) decided on 26.02.2015, approving the

application of exemption notification to Central Para Military Forces like CRPF etc. for

promotion as well as continuing in service. Further even if it is held that the GOI notification

is prospective in nature still would the humble court be justified to pass order’s that the

individual be allowed to serve in the force till superannuation or till suppernummary (sic,

supernumerary) post is created.

26

(F) Because the High Court failed to appreciate that the respondent is paid admissible

terminal benefits namely pension @ Rs. 1275/ - per month for life, DCRG Rs. 24,832/-,

GIS Rs. 5,746/-, Leave encashment Rs. 11,207/ -, GPF Rs. 37,048/-, Risk Fund Rs.

15,000/-.

20

regard to the type of work carried on hereby exempt all categories of posts

of ‘combatant personnel’ only of the Central Para Military Forces (CPMFs),

namely, Central Reserve Police Force (CRPF), Border Security Force (BSF)

Indo-Tibetan Border Police (ITBP), Central Industrial Security Force (CISF)

and Assam Rifles from the provisions of the said section.”

55. Three principles of law, which are well-settled, must inform us. First,

delegated legislation is ordinarily prospective in nature and a right or

liability created for the first time cannot be given retrospective effect

(see: Federation of Indian Mineral Industries v. Union of

India

27

); secondly, unless and until there is a clear intention expressed

in the notification issued in pursuance of delegated power that it would

also apply retrospectively, the same cannot be given a retrospective

effect and would always operate prospectively (see: Union of India

v. Kartick Chandra Mondal

28

); and thirdly, an exemption notification

which takes out cases from the purview of a beneficial legislation has

to be strictly construed (see: Mohinder Lal v. Saroj Kumari

Verma

29

).

56. The rule deducible from Federation of Indian Mineral Industries

(supra) would govern all delegated legislation including an exemption

notification because (i) we find absence of any distinction carved out

by such rule between “imposition of duty” and “removal of duty” and

(ii) the law may not be read in a manner providing one rule for liability

and another for immunity.

27

(2017) 16 SCC 186

28

(2010) 2 SCC 422

29

(2000) 2 SCC 6

21

57. Turning attention now to the terms of the NOTIFICATION, it is clear from

a bare perusal thereof that neither by express words nor by necessary

implication was it made to apply retrospectively from the date the PwD

Act was enforced. Also, the PwD Act being a beneficial legislation, any

notification exempting an establishment from the duty imposed by

Section 47 has to be strictly construed to protect the interests of

disabled employees who acquire disability while in service.

58. We, therefore, hold that so long as the proviso is not invoked by the

appropriate Government for exempting an establishment from the

provision of sub-section (1) of Section 47, the employer has a duty to

offer an alternate post and the employee a right to be accommodated;

however, once a notification is issued in terms of the proviso below

sub-section (2) of Section 47 exempting an establishment from the

provisions of the section, not only does the duty of the employer cease

from the date the same takes effect, the employee would lose the

statutory protection of continuity in service.

59. In our considered opinion, issuance of the NOTIFICATION on 10

th

September, 2002 aids the respondent more than advancing the cause

of the appellants. It shows that even the Government of India in the

appropriate ministry felt the need to carve the CMPFs out of the

coverage of Section 47 seven years after the enactment of the PwD

Act, meaning thereby that the said provision applied with full force to

the CMPFs and covered them between 1995 and 10

th

September, 2002.

22

60. Therefore, the NOTIFICATION has no bearing on the legality of the order

of medical invalidation. Respondent’s medical invalidation vide order

dated 11

th

March, 1998 was made at a point of time when Section 47

of the PwD Act operated without any strings attached and the

appellants were bound by its categorical mandate. The said order

being ultra vires Section 47 read with Articles 14 and 21 of the

Constitution as on date the same was made, the subsequent issuance

of the NOTIFICATION cannot have retrospective effect so as to legitimise

an act that is void ab initio. The right of the respondent crystallised on

the date of ouster; and a later exemption from the statutory mandate

cannot efface the breach already committed.

61. The case of Dileep Kumar (supra) relied upon by Mr. Banerjee would

also not be helpful to advance the appellants’ case. In Dileep Kumar

(supra), the respondent therein was relieved from service in 2011 after

issuance of the NOTIFICATION in 2002. It is in this context that this Court

interpreted the proviso to Section 47 of the PwD Act, held the order of

invalidation from service valid and, consequently, allowed the appeal

of the appellants therein. Therefore, it is clear that Dileep Kumar

(supra) is clearly distinguishable on facts.

OTHER PRECEDENTS TOUCHING SECTION 47, PWD ACT

62. Kunal Singh (supra) happens to be the first decision on the contours

of Section 47, PwD Act.

23

63. Appellant therein was recruited as a Constable in the Special Service

Bureau

30

. During the course of his service, he sustained an injury to

his left leg, which ultimately necessitated its amputation. A Medical

Board at Kullu thereafter assessed his condition and declared him

permanently incapacitated for further service. On the basis of the said

medical opinion, the Commandant, Group Centre, SSB, Shamshi

(Kullu), passed an order dated 20

th

November, 1998 invalidating the

appellant from service. Challenge laid to the said order before the High

Court by way of a writ petition, failed. The High Court dismissed the

petition holding that since the appellant had been invalidated from

service on the basis of the Medical Board's opinion, there was no scope

for his continuance in service. Aggrieved thereby, the appellant

approached this Court. It is pertinent to note, particularly in the

context of the present case and the discussion above regarding the

absence of specific pleadings, that this Court in Kunal Singh (supra)

expressly recorded that no argument on Section 47 of the PwD Act had

been advanced before the High Court. The said contention was raised

for the first time before this Court. Nevertheless, this Court proceeded

to entertain and adjudicate the issue, ultimately granting relief on the

basis of Section 47 of the PwD Act.

64. In Kunal Singh (supra), this Court held that the language, scheme,

and contents of Section 47 of the PwD Act render the provision

mandatory in nature and cast a statutory obligation upon the employer

30

SSB

24

not to dispense with the services of, or reduce in rank, an employee

who acquires a disability during the course of service. The disability

suffered by the appellant therein squarely fell within the ambit of the

PwD Act, since it was acquired while in service. Consequently, this

Court held that the appellant was entitled to the protection and

benefits envisaged under Section 47 of the PwD Act. This Court further

observed that, once an employee acquires a disability during service,

it is incumbent upon the employer to shift such employee to another

post carrying the same pay scale and service benefits. In the event

that no suitable post is immediately available, the employee is required

to be retained on a supernumerary post until a suitable post becomes

available or until he attains the age of superannuation, whichever is

earlier.

65. Relevant paragraphs from Kunal Singh (supra) are reproduced

hereunder:

9. 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 a 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 the section reads “no establishment shall dispense with, or

reduce 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

25

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, wh ichever 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 a 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.

10. The argument of the learned counsel for the respondent on the

basis of the 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.

11. We have to notice one more aspect in relation to the appellant

getting invalidity pension as per Rule 38 of the CCS Pension 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

benefit of persons with disabilities.”

12. Merely because under Rule 38 of the 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 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.

26

(emphasis ours)

66. The decision in Bhagwan Dass (supra) is the next decision providing

guidance.

67. Appellant therein was an employee of the Punjab State Electricity

Board

31

. During the course of his service, he lost his eyesight

completely on 17

th

January, 1994 and consequently became totally

blind. Thereafter, he remained absent from duty without authorization

from 18

th

January, 1994 to 21

st

March, 1997. Although the Board

repeatedly directed him to report for duty, he failed to do so, leading

to the issuance of a charge-sheet against him. Subsequently, by a

letter dated 17

th

July, 1996, the appellant explained that his absence

was attributable to the sudden loss of vision. He further sought

retirement from service and requested that a suitable appointment be

provided to his wife in his place and stead. Following a series of internal

communications, wherein it was concluded that the appellant was not

interested in availing the protection under Section 47 of the PwD Act,

the Board relieved him from service vide Office Order dated 13

th

January, 1999 with effect from 21

st

March, 1997 and directed him to

submit a leave application covering the period of his absence.

Thereafter, the appellant submitted representations challenging the

action of the Board, contending that he was unaware of the relevant

service rules and of the protection available to employees who acquire

31

Board

27

a disability during service. He, accordingly, sought reinstatement. As

no relief was forthcoming and the severance was completed by

payment of his terminal dues, the appellant approached the High Court

by way of a writ petition seeking the benefit of Section 47 of the PwD

Act and, in the alternative, appointment of his son in his place. The

High Court dismissed the writ petition, primarily addressing the

alternative prayer for compassionate appointment, without

undertaking any discussion on the applicability of Section 47 of the

PwD Act. Aggrieved thereby, the appellant preferred an appeal before

this Court.

68. This Court held that the action of the Board in relieving the appellant

from service vide Office Order dated 13

th

January, 1999 was illegal and

unsustainable in law, and that the appellant was entitled to the

protection afforded under Section 47 of the PwD Act. In arriving at this

conclusion, this Court placed reliance on its earlier decision in Kunal

Singh (supra). It was further observed that, following the onset of his

disability, the appellant was unaware of the legal protections available

to him and was labouring under the mistaken belief that retirement

from service was the only course open to him. In such circumstances,

it was incumbent upon the senior officers of the Board to apprise him

of the statutory safeguards available under Section 47 of the PwD Act

rather than proceed on the assumption that he had voluntarily chosen

to forgo them. Accordingly, this Court held that the appellant must be

deemed to have continued in service until the date of his

28

superannuation and directed his reinstatement with all consequential

service and monetary benefits.

69. Reference in this regard may also be profitably made to a decision of

recent origin of this Court in Ravinder Kumar Dhariwal v. Union of

India

32

.

70. In the said case, the appellant was serving as an Assistant

Commandant in the CRPF. It was alleged that on 18

th

April, 2010, in

the presence of the Deputy Inspector General of Police

33

, he stated

that he was obsessed with either killing or being killed and further

threatened that he could shoot. Pursuant thereto, a complaint was

lodged by the DIGP, leading to the initiation of departmental

proceedings against the appellant. A charge memorandum was issued

and six articles of charge were framed against him. Subsequently, he

was placed under suspension with effect from 8

th

October, 2010. The

departmental enquiry culminated in a report dated 3

rd

October, 2013

submitted by the Enquiry Officer. Pursuant thereto, a notice dated 7

th

August, 2015 was issued to the appellant calling upon him to respond

to the findings recorded therein. Parallelly, from the year 2009

onwards, the appellant had been suffering from obsessive compulsive

disorder

34

and secondary major depression, for which he underwent

psychiatric treatment at various medical institutions. He was ultimately

referred to Dr. Ram Manohar Lohia Hospital, New Delhi, where he was

32

(2023) 2 SCC 209

33

DIGP

34

OCD

29

certified as suffering from a permanent disability assessed between

40% and 70%. Consequent thereto, he was declared medically unfit

for duty and placed in the S5(P) medical category. Aggrieved by the

notice dated 7

th

August, 2015, the appellant approached the High

Court by way of a writ petition. The writ petition was allowed and the

CRPF directed to reconsider the appellant's case in light of the

protections available under Section 47 of the PwD Act. An intra-court

appeal was thereafter preferred by the respondents. The Division

Bench partly allowed the appeal and restored the departmental

proceedings to the stage of recording of evidence, so as to afford the

appellant an opportunity to establish his claim of mental disability.

71. Aggrieved thereby, a special leave petition came to be filed by the

appellant which was allowed and the departmental enquiry was set

aside. For the purposes of the present discussion, it is unnecessary to

delve into the entirety of the reasoning adopted by this Court in

Ravinder Kumar Dhariwal (supra). It would suffice to advert to

those observations and findings that bear upon the interpretation and

application of Section 47 of the PwD Act, which are directly relevant to

the issues arising in the present case.

72. Relevant paragraphs from th e said decision are reproduced

hereinunder:

36. *** While Sections 44 to 46 impose positive obligations on the

State to reasonably accommodate persons with disabilities, Section

47 imposes both positive and negative obligations on the

Government. Sub-sections (1) and (2) of Section 47 state that the

government employer must not terminate, demote or deny

30

promotion on the ground of disability. The proviso provides a positive

obligation on the employer that if the post is not suitable to the

employee after acquiring disability, then he could be shifted to

another post with the same pay and service benefits. However, if it

is not possible to adjust the employee against any post, then he may

be kept on a supernumerary post until he obtains superannuation.

37. Article 14 of the Indian Constitution states that “[t]he State shall

not deny to any person equality before the law or the equal protection

of the laws within the territory of India”. The right to equality under

the Indian Constitution has two facets — formal equality and

substantive equality. While formal equality means that every person,

irrespective of their attributes must be treated equally and must not

be discriminated against; substantive equality is aimed at producing

equality of outcomes through different modes of affirmative action.

The principle of reasonable accommodation is one of the means for

achieving substantive equality, pursuant to which disabled

individuals must be reasonably accommodated based on their

individual capacities. Disability, as a social construct, precedes the

medical condition of an individual. The sense of disability is

introduced because of the absence of access to facilities.

38. This Court in Vikash Kumar v. UPSC [Vikash Kumar v. UPSC,

(2021) 5 SCC 370 : (2021) 2 SCC (L&S) 1], recognised the social

construction of disability and the necessity to provide reasonable

accommodation to such persons to comply with the full purport of

the equality provisions under the Constitution. One of us (D.Y.

Chandrachud, J.) writing for the three-Judge Bench observed: (SCC

p. 405, para 62)

“62. The principle of reasonable accommodation acknowledges

that if disability as a social construct has to be remedied,

conditions have to be affirmatively created for facilitating the

development of the disabled. Reasonable accommodation is

founded in the norm of inclusion. Exclusion results in the

negation of individual dignity and worth or they can choose the

route of reasonable accommodation, where each individual's

dignity and worth is respected. Under this route, the ‘powerful

and the majority adapt their own rules and practices, within

the limits of reason and short of undue hardship, to permit

realisation of these ends’. [Reasonable Accommodation in A

Multicultural Society, Address to the Canadian Bar Association

Continuing Legal Education Committee and the National

Constitutional and Human Rights Law Section, 7 -4-1995,

Calgary, Alberta at 1.]”

39. ***

40. The facets of non-discrimination that guide the PwD Act are

threefold: (i) right to formal equality, where no person shall be

discriminated based on her disability; (ii) affirmative action in

pursuance of substantive equality under Section 33; and (iii)

reasonable accommodation of persons with disabilities such as

provided under Section 47. There may be no specific provision in the

PwD Act—unlike the RPwD Act —which provides persons with

disability the right of non-discrimination. However, since the principle

31

of substantive equality (of providing equal outcomes through

affirmative action and reasonable accommodation) is premised on

the principle of non-discrimination, there is no reason to hold that

the principle of non-discrimination, of treating every person equally

irrespective of her disability does not guide the entire statute.

(emphasis ours)

THE BRASS TACKS

73. Having thus noticed the facts and the law, the test is simple: did the

facts and circumstances warrant the relief granted by the Single

Judge?

74. The statutory mandate of Section 47, PwD Act is too peremptory to be

ignored. The title of the PwD Act says it all. It is an enactment for

persons with disabilities intended to guarantee them equal

opportunities and full participation apart from protection of rights.

Section 47, importantly, starts with “No”. Negative words in a statute

convey a clear prohibition. It is a legislative device to make a statute

imperative. An employee like the respondent , while retaining the

status of a public servant, is entitled to security of service. A physical

disability that he acquires while in service rendering him unfit for the

work assigned to him has to be dealt with by the employer in the

manner ordained by Section 47. Either he is shifted to some other post

carrying same pay and service benefits, or, if it is not possible, the

employer is under a duty to adjust him on any other post. If that too

is not possible, a supernumerary post has to be created for him which,

for all intents and purposes, would be personal to him.

32

75. The PwD Act came into force in the year 1995, whereas the respondent

was medically invalidated from service in 1998. The NOTIFICATION saw

the light of the day as late as in 2002. The duty imposed by the PwD

Act being mandatory and not discretionary, the law did not leave the

appellants with an option to discharge their duty at their convenience.

Appellants were required to find a chair for the respondent, and not

wait for the respondent to beg for one. By not offering alternate

posting, the appellants failed in their role as a model employer and

converted a welfare provision into a dead letter.

76. The point as to whether or not the impaired vision from which the

respondent suffered was attributable to and / or aggravated by service

in the CRPF need not detain us for long. Nothing has been brought on

record by the appellants to suggest that the respondent had been

suffering from an ophthalmic condition since his enrolment in the

CRPF. Medical fitness of the respondent must have been assessed at

the time of his enrolment and appointment as a driver. Had he been

found short of the required standards, we wonder whether the

recruitment process would have resulted in an appointment in the first

place. Even if it is assumed that the ophthalmic condition was neither

attributable to nor aggravated by service in the CRPF, nothing turns

on it. Parliament did not limit Section 47 to disabilities attributable to

service; the protection is unqualified and unconditional. It operates

irrespective of how the disability was acquired. The relevant question

is not hypothetical fitness at appointment, but whether the appellants

33

explored alternatives before ending the respondent’s service. More

than ten years of unblemished driving followed by an acquired

ophthalmic condition, indeed, provided a case for accommodation or

alternate posting, not medical invalidation. Service jurisprudence

distinguishes between initial disqualification and subsequent disability,

and the law ought to lean towards retention over ouster from service

unless, of course, ouster becomes inevitable.

77. It would not be inapt to dwell on another aspect, before we conclude.

It is intriguing that the CRPF, being a force constituted under the

Central Reserve Police Force Act, 1949

35

and functioning under the

administrative control of the Ministry of Home Affairs, Government of

India, failed to respond in time. Being an instrumentality of the State,

it was expected to be fully cognizant of the provisions of the PwD Act

and the statutory protection conferred upon the respondent under

Section 47 thereof. In such circumstances, we find it difficult to

comprehend how the order of medical invalidation came to be passed

in the first place, particularly when at the relevant point in time no

notification exempting the CRPF from the operation of the PwD Act had

been issued. The action of the appellants, therefore, appears to have

been taken in disregard of the statutory mandate then in force.

78. We are, thus, not persuaded to accept Mr. Banerjee’s contention that

the provisions of the PwD Act are inapplicable on facts and in the

circumstances of the present case.

35

Act No. 66 of 1949

34

79. For all the reasons aforesaid, we are unhesitatingly of the opinion that

the Single Judge was perfectly justified in finding the appellants to be

remiss. Therefore, we are of the considered opinion that the civil

appeal is devoid of merit and is liable to be dismissed.

THE RELIEF

80. By an interim order passed in the present proceedings on 20

th

May,

2026, we directed Mr. Banerjee to place on record the quantum of

salary and allowances that the respondent would have drawn had he

continued in service till his superannuation. Pursuant thereto, a

calculation sheet has been furnished by the appellants. As per the said

calculation, which we do not doubt for a moment, had the respondent

remained in service until the date of his superannuation, the total

salary and allowances payable to him would be an amount of

Rs.82,80,195/- excluding any adjustment on account of the

invalidation pension received by him. The calculation further indicates

that had the respondent continued in service only up to 10

th

September

2002, i.e., the date on which the NOTIFICATION came into force, the

salary and allowances payable to him would amount to a meagre Rs.

2,66,180/-. We see no reason to accept Mr. Banerjee’s prayer that the

respondent is entitled, if at all, to such sum till the NOTIFICATION was

issued.

81. Pertinently, the respondent is now a sexagenarian. Consequently, the

question of his reinstatement in service does not arise and the relief

granted to the respondent by the Single Judge warrants suitable

35

modification. We are conscious that an award of full back wages would

impose a substantial burden on the State exchequer, but the fault for

the mess rests solely on the appellants. We have noticed that the

quantum of post medical invalidation benefits given to the respondent

is a pittance. He has been made to suffer the pangs of deferred justice

and economic destitution despite the favourable verdict of the Single

Judge dating back to 11

th

August, 2008. Respondent having suffered

visual impairment, the possibility of his gainful employment as a driver

stood foreclosed. Given the nature of his disability, we presume that

his other employment prospects were also rendered bleak. No

evidence of the respondent’s gainful employment has been placed on

record. Appellants, having failed to provide an alternate post

commensurate with the respondent’s disability as mandated by

Section 47, PwD Act, cannot be permitted to take shelter behind the

principle of ‘no work, no pay’. The situation of non-employment of the

respondent is entirely the appellants’ creation. Respondent is, thus,

entitled to full back wages and the appellants must bear the

consequences of their own inaction. The preambular promise of the

Constitution cannot remain symbolic. Restitution of status with full

back wages, interest and costs for the indignity of delay are the

minimum we ought to order.

82. We, therefore, deem it appropriate to suitably modify the order of the

Single Judge by awarding to the respondent an amount of

Rs.1,25,00,000/- (Rupees one crore twenty five lakh only), inclusive

36

of back wages, interest and costs of the present proceedings. Ordered

accordingly. The said amount shall be electronically transferred to the

respondent’s savings bank account by the appellants within a period

of eight weeks from the date of this judgment. Advocate-on-record for

the respondent may inform the particulars of his savings bank account

to the advocate-on-record for the appellants within seven days to

facilitate compliance of this order.

83. Since the respondent is visually impaired, we direct the Member -

Secretary, State Legal Services Authority, Himachal Pradesh or the

Member-Secretary, District Legal Services Authority, Kangra, if that is

more convenient, to appropriately guide the respondent for safe

investment of a part of the amount received in a fixed deposit account

of a nationalised bank attracting maximum interest with facility of

credit of monthly interest in his savings bank account as well as to

oversee his future medical needs.

CONCLUSION

84. The civil appeal is dismissed on the aforesaid terms.

85. Connected application(s), if pending, shall stand disposed of.

…………………………………J.

(Dipankar Datta)

..…………………… ..………….J.

(Augustine George Masih )

New Delhi;

July 13, 2026.