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Friday, February 27, 2015

NOT FIT FOR NORMAL ACTIVE DUTY AND 100% PERMANENT INCAPACITATION FOR FURTHER SERVICE. Since the Respondent comes under second category, he was dealt with as per procedure laid down in section VIII of CRPF Medical Manual. However, it is respectfully submitted that full Bench decision of Allahabad High Court in the case of Union of India Vs. Mohd. Yasin Ansari [(2006) 3 UPBEBC 2508] has held that a person in the armed forces even with lower degree of disability cannot be retained in services." 28. Apart from the plea of the disabled officers mentioned being vague, for no particulars are given as to the extent of their disability, the Union has made it clear that Standing Order No.7/99 will not apply and that since the job requirements demand a high level of fitness and ability CRPF is exempted from the provisions of Section 47 of the Act. Not only has this plea not been raised before the High Court, but the plea raised before us is lacking in particulars and has to be dismissed for this reason also. 29. We make it clear that the respondent, who has been occupying official accommodation, will vacate such accommodation by 30th June, 2015. Mr. Patwalia has assured us that, given the facts of this case, no penal charges will be collected from him till the date on which he vacates the said accommodation. 30. The appeals are, therefore, allowed. The judgment of the Allahabad High Court is set aside. There will be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.2466-2467 OF 2015
            (ARISING OUT OF SLP (CIVIL) NOS.25568-25569 OF 2014)


UNION OF INDIA & ORS.                   ...APPELLANTS



                                   VERSUS



DILEEP KUMAR SINGH                      ...RESPONDENT



                        J U D G M E N T

R.F.Nariman, J.



1.    Leave granted.

2.    These appeals raise an interesting question as to  the  interpretation
of a proviso contained in  Section  47  of  the  Persons  with  Disabilities
(Equal Opportunities, Protection of  Rights  and  Full  Participation)  Act,
1995 (in short the "1995 Act").

3.    The facts giving rise to these appeals are as follows:-

On 1st January, 1998, the respondent was enlisted in the CRPF  as  Assistant
Commandant. While on duty, on 19th  October,  2001,  he  sustained  grievous
injuries in his spinal cord and legs while he was out on  a  visit  checking
night guards.  Thereafter, he was provided  with  specialized  treatment  in
various hospitals, but nothing worked and, ultimately, a  medical  board  in
its report dated 22nd July, 2004 categorized the respondent as PEE-5,  i.e.,
a person who is permanently  incapacitated  and  stated  that  he  has  100%
disability and recommended that he  be  relieved  from  service  on  medical
grounds.  On 27th October, 2004, a show  cause  notice  was  served  on  the
respondent along with a copy of the report  of  the  medical  board  with  a
direction to  submit  his  representation,  if  any,  against  the  proposed
invalidation from  service  on  medical  grounds.  Instead  of  representing
against  the  show  cause  notice,  the  respondent  filed   writ   petition
No.30278/2004 challenging the said show cause notice. By  an  interim  order
passed on 19th January, 2005, the appellants were directed not to  pass  any
order pursuant to  the  report  given  by  the  medical  board  against  the
respondent.

4.    Pursuant to an order modifying  the  stay  application,  by  an  order
dated 1st July, 2011, the respondent was relieved  from  service  and  given
invalidation pension as admissible under Rule 38 of the CCS (Pension)  Rules
of 1972.  The respondent filed a  second  writ  petition  No.42101  of  2011
challenging the aforesaid order.

5.    By the impugned judgment dated 8th January, 2014, the  Allahabad  High
Court held on  a  construction  of  Section  47  of  the  said  Act  that  a
Notification dated 10th September, 2002 issued under Section 47  insofar  as
the CRPF is concerned, (exempting the CRPF from the rigours of  Section  47)
would have to be read with reference to the field occupied by Section  47(2)
only.  Thus, the High Court made  it  clear  that  the  exemption  provision
would apply only to promotion  and  not  to  continuing  the  respondent  in
service.  As a consequence, the order dated 1st July, 2011,  was  set  aside
and the Union was directed to treat the petitioner in service and to  adjust
him against any suitable post  or  against  a  supernumerary  post  until  a
suitable post is available or until he attains the  age  of  superannuation,
whichever is earlier.

6.    Mr. P.S. Patwalia, learned Additional Solicitor General, appearing  on
behalf of the Union of  India  has  placed  the  1995  Act  before  us.   He
referred to Section 33, Section 47 and Section 73  and  submitted  that  the
penultimate proviso to Section 47 would apply to the entire Section and  not
merely to sub-section (2) thereof as is  clear  from  the  language  of  the
proviso which uses the words "this Section" and not "this sub-section".   He
further submitted that since there is no  ambiguity  in  the  provision,  no
resort can be taken to Section 73(3) and 73(4) which refers to  the  proviso
in Section 47 as "the  proviso  to  sub-section  (2)  of  Section  47".   He
further submitted that the scheme of the  Act  would  be  disturbed  by  the
impugned judgment inasmuch as Section 33  and  Section  47  cover  the  same
ground - Section 33 being applicable pre-appointment and  Section  47  being
applicable after appointment. He cited Mohd. Shahabuddin v. State  of  Bihar
& Ors.,  (2010) 4 SCC 653 at paragraph 179, which  judgment  refers  to  the
literal rule of construction and S.R. Bommai v. Union  of  India,  (1994)  3
SCC 1 at paragraphs 238 and 239, for  the  proposition  that  courts  cannot
supply a cassus omissus.

7.    Mr. Mahabir Singh, learned senior  counsel  for  the  respondent,  has
argued before us that the impugned judgment is correct inasmuch as the  1995
Act is a beneficial legislation  meant  to  help  disabled  persons  and  an
expansive construction is, therefore, in order.

8.    He argued that Sections 47 and 73 have to  be  harmoniously  construed
and so construed, Section 73 throws  light  on  Section  47  and  makes  the
proviso apply only  to  sub-section  (2)  thereof.  He  argued  that  in  no
circumstance can a disabled person, once he  acquires  a  disability  during
his service, be terminated as it would go against the purpose  of  the  Act.
Further, he argued that the exemption  notification  dated  10th  September,
2002 would not apply on facts as the disability was incurred  prior  to  the
notification. He also argued  that  there  was  discrimination  against  the
respondent in that others  with  disabilities  did  not  get  their  service
terminated.

9.    We have heard learned counsel for the parties.  The  Preamble  of  the
1995 Act states as follows:-

"An Act to give effect to the Proclamation on  the  Full  Participation  and
Equality of the People with Disabilities in the Asian and Pacific Region

Whereas the Meeting to Launch the  Asian  and  Pacific  Decade  of  Disabled
Persons 1993-2002 convened by the Economic and Social  Commission  for  Asia
and Pacific held at Beijing on  1st  to  5th  December,  1992,  adopted  the
Proclamation  on  the  Full  Participation  and  Equality  of  People   with
Disabilities in the Asian and Pacific Region;

And Whereas India is a signatory to the said Proclamation;

And Whereas  it  is  considered  necessary  to  implement  the  Proclamation
aforesaid."



10.   Sections 33, 47 and 73(3) & (4) are set out hereinbelow:

"33. Reservation of posts.-Every appropriate  Government  shall  appoint  in
every establishment such percentage of vacancies not  less  than  three  per
cent for persons or class of persons with disability of which one  per  cent
each shall be reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy,

in the posts identified for each disability:

Provided that the appropriate Government may, having regard to the  type  of
work carried on in any department or establishment, by notification  subject
to such conditions, if any,  as  may  be  specified  in  such  notification,
exempt any establishment from the provisions of this section.


47. Non-discrimination in Government employment.-(1) No establishment  shall
dispense with, or reduce in rank, an  employee  who  acquires  a  disability
during his service:

Provided that, if an employee, after acquiring disability  is  not  suitable
for the post he was holding, could be shifted to some other  post  with  the
same pay scale and service benefits:

Provided further that if it is not possible to adjust the  employee  against
any post, he may be kept on a supernumerary post until a  suitable  post  is
available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on  the  ground  of  his
disability:

Provided that the appropriate Government may, having 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.


73. Power of appropriate Government to make rules.-
(3) Every notification made by the Central Government under the  proviso  to
Section 33, proviso to sub-section (2) of Section 47,  every  scheme  framed
by it under Section 27, Section 30, sub-section (1) of Section  38,  Section
42, Section 43, Section 67, Section 68 and every rule made by it under  sub-
section (1), shall be laid, as soon as may be after it is made, before  each
House of Parliament, while it is in session for a  total  period  of  thirty
days which may be comprised in one session or  in  two  or  more  successive
sessions, and if, before the expiry of  the  session  immediately  following
the session or the successive  sessions  aforesaid,  both  Houses  agree  in
making any modification in the rule, notification  or  scheme,  both  Houses
agree that the rule, notification or scheme should not be  made,  the  rule,
notification or scheme shall thereafter have effect only  in  such  modified
form or be of no effect, as the case may be;  so,  however,  that  any  such
modification or annulment shall be without  prejudice  to  the  validity  of
anything previously done under that rule, notification  or  scheme,  as  the
case may be.

(4) Every notification made by the State Government  under  the  proviso  to
Section 33, proviso to sub-section (2) of Section 47, every scheme  made  by
it under Section 27, Section 30, sub-section (1) of Section 38, Section  42,
Section 43, Section 67, Section 68, and every rule made  by  it  under  sub-
section (1), shall be laid, as soon as may be after it is made, before  each
House of State Legislature, where it consists of two Houses  or  where  such
legislature consists of one House before that House."



11.   There is no doubt whatsoever  that  Mr.  Mahabir  Singh  is  right  in
saying  that  this  is  a  beneficial  legislation  passed  pursuant  to   a
proclamation  on  the  full  participation  and  equality  of  people   with
disabilities in the Asian and Pacific region to which India is a  signatory.
However, we find  that  for  the  reasons  given  hereinafter  the  impugned
judgment cannot be sustained.

12.   It will be noticed that Section 47 proviso speaks of  "this  Section".
The literal rule applied to this proviso would make it clear that  it  would
apply to the entire Section, for otherwise the words used  would  have  been
"this sub-section". Quite apart from this, the language of this  proviso  is
similar to the language  of  the  proviso  contained  in  Section  33.  Both
provisions speak of an exemption being granted having regard  to  the  "type
of work" carried on in any establishment.  It is clear that given the  "type
of work" carried on by the armed forces or the CRPF before us,  persons  who
have disabilities may  not  have  any  reservation  for  them  at  all  pre-
appointment, if exempted, for the simple reason that persons suffering  with
disabilities (which as defined under Section 2(t) means a  person  suffering
from not less  than  40%  of  any  disability  as  certified  by  a  medical
authority) may be persons wholly unfit for service required in  the  defence
of the country.  It is obvious that, if at the  appointment  stage,  persons
with disabilities need not  have  vacancies  in  posts  reserved  for  them,
equally after suffering a disability during service, a person  may  for  the
self-same reason not be able to perform what  is  required  of  him  in  the
defence of the nation, thereby justifying his discharge from service.

13.   The context of the provision is "type of  work".   It  is  clear  that
given  this  context,  there  is  no  rationale  for  exemption  so  far  as
"promotion" is concerned but  no  exemption  so  far  as  "dispensation"  is
concerned.

14.   One argument that weighed with the  High  Court  was  that  under  the
second proviso to sub-section (1), if it  is  not  possible  to  adjust  the
employee against any post, he may be kept on  a  supernumerary  post.   From
this it was sought  to  be  inferred  that  under  no  circumstance  can  an
employee who  acquires  disability  during  his  service  have  his  service
dispensed with.  This reasoning is  fallacious  for  the  reason  that  sub-
section (1) deals with dispensing with  service  as  well  as  reduction  in
rank.  The argument that an employee's services can never be dispensed  with
under Section 47(1) having due regard to the second  proviso  thereof  fails
to take into account that there is no such requirement as far  as  reduction
in rank is concerned. If an exemption can be given so far  as  reduction  in
rank is concerned, then there is no reason  why  such  exemption  cannot  be
given so far as dispensing with service is concerned, as both are  contained
in Section 47(1) of the Act.

15.   We now come to what appealed to the High Court  and  was  argued  most
vehemently before us.  It was stated that Section 73(3) & (4) made it  clear
that the proviso is only a proviso to sub-section  (2)  of  Section  47  and
that therefore it must be read only as such.  To this again  there  are  two
answers.

16.   It is well settled that the provisions  of  a  statute  must  be  read
harmoniously together.  However, if this is not possible then it is  settled
law that where there is a conflict between  two  Sections,  and  you  cannot
reconcile the two, you have to determine which is the leading provision  and
which the subordinate provision, and which  must  give  way  to  the  other.
This statement of the law is to be found in Institute  of  Patent  Agents  &
Ors. v. Joseph Lockwood, 1894  A.C.  347  at  360.   Lord  Herschell,  L.C.,
stated this, as follows:-

"Well, there is a conflict sometimes between two sections  to  be  found  in
the same Act. You have to try and reconcile them as best  you  may.  If  you
cannot, you have to determine which is the leading provision and  which  the
subordinate provision, and which must give way to the other."



17.   This Judgment has been subsequently followed  by  the  High  Court  of
Australia in Project Blue Sky Inc.  v.  Australian  Broadcasting  Authority,
153 ALR 490, in the following terms:

      "A legislative instrument must be construed on the prima  facie  basis
that its provisions are intended to give effect to harmonious goals.   Where
conflict appears to arise from the language of  particular  provisions,  the
conflict must be alleviated, so far as possible, by  adjusting  the  meaning
of the competing provisions to achieve that  result  which  will  best  give
effect to the purpose and language of  those  provisions  while  maintaining
the unity of all the statutory provisions.  Reconciling conflict  provisions
will often require the court "to determine which is  the  leading  provision
and which the subordinate provision, and which must give way to the  other".
 Only by determining the hierarchy of the provisions will it be possible  in
many cases to give each provision the meaning which  best  gives  effect  to
its purpose and language  while  maintaining  the  unity  of  the  statutory
scheme." (at pages 509-510)



18.   Under similar circumstances, in Smt.  Laxmi  Devi  v.  Sethani  Mukand
Kanwar and Two Others, 1965 (1) SCR 726, a question  arose  as  to  how  one
would harmonise Section 2(d) with Section 5  of  the  Transfer  of  Property
Act.  The effect of Section 2(d), which is a  saving  clause,  is  that  the
provisions of the Transfer of  Property  Act  will  apply  to  transfers  by
operation of law.  Whereas  Section  5  of  the  Transfer  of  Property  Act
defines transfer of property as intended to take in  transfers  effected  by
acts of parties.  Auction sales, being transfers effected  by  operation  of
law would, therefore, be within the purview of  Section  100  (latter  part)
read with Section 2(d).  (Section 100  provides  that  no  charge  shall  be
enforced against any property  in  the  hands  of  a  person  to  whom  such
property has been transferred for consideration and without  notice  of  the
charge.)  Section 2(d) was held to prevail over Section 5 because  it  is  a
"positive provision" which is "clear". This Court held:

"This position, however, has become somewhat complicated by  reason  of  the
provisions contained  in  s.5 of  the  Transfer  of  Property  Act.  Section
5 provides,  inter  alia,  that  in  the  following  sections  "transfer  of
property" means an act  by  which  a  living  person  conveys  property,  in
present or in future, to one or more other living persons. In  other  words,
in terms, the definition of the expression "transfer of  property"  as  used
in all the sections of the Transfer of Property Act is intended to  take  in
transfers effected by acts of  parties  inter  vivos,  and  an  auction-sale
clearly is not such an act. Section 5 would, therefore,  appear  to  exclude
auction sales from  the  purview  of  s.100 altogether.  This  result  would
appear to be consistent with the provision in the preamble of the Act  which
says that the Transfer of Property Act was enacted because  it  was  thought
expedient to define and amend certain parts  of  the  law  relating  to  the
transfer of property by act of parties. That is the position  which  emerges
from the reading of  s.5 coupled  with  the  preamble;  and  that  naturally
raises  the  question  as  to  how  to  reconcile  these  two   inconsistent
positions.

In our opinion, the positive provision contained  in  s.  2(d) must  prevail
over the definition of "transfer of property" prescribed by  s.5. No  doubt,
the purpose of the definition is to  indicate  the  class  of  transfers  to
which the provisions of the Transfer of Property  Act  are  intended  to  be
applied; but a definition of  this  kind  cannot  over-ride  the  clear  and
positive direction contained in the specific words used by s.  2(d).  As  we
have already seen, the result of the saving clause enacted by s. 2(d) is  to
emphasise the fact that  the  provisions  of  s.57 and  those  contained  in
Chapter IV must apply to transfer by  operation  of  law.  Such  a  positive
provision cannot be made to yield to what may appear to  be  the  effect  of
the definition prescribed by s.5, and so,  we  are  inclined  to  hold  that
notwithstanding the  definition  prescribed  by  s.5,  the  latter  part  of
s.100 must be deemed to include auction sales." (at page 733)



19.   A reference to these two judgments makes it clear that Section  47  is
the "leading provision" and  Section  73  is  the  "subordinate  provision".
Further, Section 47 is a positive and  clear  provision.  This  is  because,
Section 47 is the substantive provision  exempting  the  subject  matter  of
Section 47 as a whole as opposed to Section 73 which  is  only  a  machinery
provision by which notifications made  under  Section  47  are  to  be  laid
before each House of Parliament.

20.   Equally, it is settled law that a proviso does not travel  beyond  the
provision to which it is a proviso.  Therefore, the golden rule is  to  read
the whole Section, inclusive of  the  proviso,  in  such  manner  that  they
mutually throw light on each other and result in a harmonious  construction.
 This is laid down in Dwarka Prasad v. Dwarka Das Saraf, (1976) 1  SCC  128,
as follows:-

"18. We may mention in fairness to Counsel that the following,  among  other
decisions, were cited at  the  Bar  bearing  on  the  uses  of  provisos  in
statutes: CIT v.Indo-Mercantile Bank Ltd, [AIR 1959 SC 713 : 1959  Supp  (2)
SCR 256, 266 : (1959) 36 ITR 1] ; Ram Narain  Sons  Ltd. v. Asstt.  CST [AIR
1955  SC  765  :  (1955)  2   SCR   483,   493   :   (1955)   6   STC   627]
; Thompson v. Dibdin [(1912) AC 533, 541  :  81  LJKB  918  :  28  TLR  490]
; Rex v. Dibdin [1910 Pro Div 57, 119, 125] and Tahsildar  Singh v.State  of
U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875, 893 : 1959 Cri  LJ  1231]  .
The law is trite. A proviso must be limited to  the  subject-matter  of  the
enacting clause. It is a settled rule of construction that  a  proviso  must
prima facie be read and considered in relation to the  principal  matter  to
which it is a proviso. It  is  not  a  separate  or  independent  enactment.
"Words are dependent on the principal  enacting  words  to  which  they  are
tacked as a proviso. They cannot be read as  divorced  from  their  context"
(Thompson v. Dibdin, 1912 AC 533). If  the  rule  of  construction  is  that
prima facie a proviso should be limited in its  operation  to  the  subject-
matter of the enacting clause, the stand we have taken is sound.  To  expand
the enacting clause, inflated by the proviso, sins against  the  fundamental
rule of construction that a proviso must be considered in  relation  to  the
principal matter to which it stands as a proviso. A  proviso  ordinarily  is
but a proviso, although the golden  rule  is  to  read  the  whole  section,
inclusive of the proviso, in such manner that they mutually throw  light  on
each other and result in a harmonious construction."


21.   Viewed at in this light also, one is to read Section  47  as  a  whole
and being read as a whole it is clear from the proviso that it  would  apply
to "type of work" carried on in  any  establishment  and  would,  therefore,
apply to both dispensing with service including reduction in  rank  as  well
as promotion.

22.   Another interesting facet is brought  out  by  the  marginal  note  of
Section 47 and Chapter VIII in which Section 47 falls.  Chapter VIII has  as
its heading "non-discrimination". Equally, the marginal note of  Section  47
is "non-discrimination in government employments".  It  is  clear  that  the
idea of Section 47 is not to  discriminate  against  employees  who  acquire
disability during service.  It is settled law that discrimination cannot  be
viewed in the abstract - the doctrine  of  classification  is  an  important
adjunct to the doctrine of discrimination.  It is clear, therefore, that  if
there is an intelligible differentia  having  a  rational  relation  to  the
object  sought  to  be  achieved,  a  provision  will  not  be  held  to  be
discriminatory.  It is clear that an exemption provision is based on such  a
classification and exempting any  establishment  from  not  dispensing  with
service or reduction in rank or  not  granting  promotions  has  a  rational
relation to the object sought to be achieved,  namely,  that  the  "type  of
work" carried on in an establishment may be such that a disabled  employee's
services may have to be dispensed with and/or promotion denied.

23.   Shri Mahabir Singh cited United India Insurance Co. Ltd.  v.  Lehru  &
Ors., (2003) 3 SCC 338 at page 345 for the proposition that in a  beneficial
legislation what the legislature gives for the benefit of those  covered  by
it, the court cannot take away. We are of the view that this authority  will
not apply  for  the  basic  reason  that  we  are  construing  an  exemption
provision in a  beneficial  legislation.  We  have  already  held  that  the
exemption provision will cover the entirety of the field of Section 47.   In
what facts and circumstances the Government exercises its discretion  taking
into account the type of work in an establishment is obviously to be  guided
by the object for which the beneficial legislation is enacted together  with
balancing the need for exempting some establishments  from  a  part  or  the
whole of the provisions of the Act.  On a true  construction,  it  is  clear
that the legislation has "given" the Government  the  power  to  exempt  any
establishment from the rigours of the Act not only qua  promotion  but  also
qua termination from service and reduction of rank as has been held above.

24.   Learned counsel also cited before us Kunal Singh v. Union of  India  &
Anr., (2003) 4 SCC 524.  This judgment decided that the benefit  of  Section
47 would be available to a person as an additional benefit  even  though  he
may get certain other benefits under the service Rules  applicable  to  him.
No question as to the proviso to Section 47 arose before the court  in  that
case and for the purposes of the present  controversy,  the  ratio  of  that
decision will have little or no bearing.

25.   We now come to two other contentions  raised  by  Mr.  Mahabir  Singh.
According to him, the exemption  notification  dated  10th  September,  2002
will not apply for the reason that the accident took place  prior  to  2002.
It is clear that the exemption notification  will  apply  to  all  cases  in
which an  employee's  services  are  dispensed  with.   The  relevant  date,
therefore, is the date of dispensing with service and not the date on  which
the disability is incurred, for Section 47 prohibits an  establishment  from
dispensing with the service of an employee who  acquires  disability  during
his service.  Since service was dispensed with on 1st July,  2011  (that  is
long after the date of the exemption notification), the  notification  will,
obviously, apply.

26.   The plea of discrimination sought to be made by Mr. Mahabir  Singh  is
based on  an  averment  made  in  the  reply  affidavit  on  behalf  of  the
petitioner (respondent herein) in the Supreme Court.   The  averment  is  as
follows:

   "Further the contention of the petitioners that the disabled persons  are
not being retained in  service  is  absolutely  wrong  because  the  persons
disabled due to militant action etc. are retained and not being  invalidated
from service in accordance to Para 9(a)(i)  of  Standing  Order  No.7/99  of
CRPF. Many disabled persons has been retained or  re-instated  in  CRPF  and
other armed forces after enactment of the Act of 1995 and amendment of  rule
20(2) of the C.C.S. (Leave) Rules 1972 as well as  the  judgment  passed  by
this Honorable Court reported in 2003(2) ESC (SC) Kunal  Singh  Vs.  U.O.I..
Even the CRPF itself has retained such disabled officer Shri  Pratap  Singh,
Deputy Commandant till superannuation and retained Shri Y.N. Ray and  Sameer
Shrivastava who became disabled in the  rank  of  Assistant  Commandant  and
granted regular promotion and at present they  are  Commandant.   Two  other
officers Sh. R.K. Singh and Sh. P.R.  Mishra  have  also  been  retained  in
service despite their disability.  Similarly the B.S.F. also  has  not  only
retained Shri Surinder Singh but had promoted him up to his present rank  of
Second in Command.  The Indian  Army  has  retained  similarly  wheel  chair
bound physically disabled (paraplegic) Officer S.K. Rajdan and promoted  him
to the rank of Major General and Indian Air Force also  retained  its  wheel
chair bound disabled (paraplegic) trainee cadet Harjot Singh."



27.   In the rejoinder affidavit filed by the appellants  this  averment  is
denied in the following terms:-

  "The contents of para 5 (G-H) of reply are wrong, misconceived  and  hence
denied.  It is  submitted  that  Central  Para  Military  forces  perform  a
critical role in maintaining internal  security  and  guarding  of  national
borders.  By very nature, the job requirements  are  "technical'  in  nature
requiring a high level of physical fitness and abilities.  CRPF is  exempted
from the provisions of Section 47 of the Act.  The Respondent does not  come
within the purview of  Standing  Order  7/99  and  has  been  declared  100%
permanently  incapacitated  for  further  service,  he  was  dealt  as   per
procedure laid down in Section  VIII  of  CRPF  medical  manual.   There  is
difference between NOT  FIT  FOR  NORMAL  ACTIVE  DUTY  AND  100%  PERMANENT
INCAPACITATION FOR  FURTHER  SERVICE.   Since  the  Respondent  comes  under
second category, he was dealt with as per procedure  laid  down  in  section
VIII of CRPF Medical Manual.  However, it  is  respectfully  submitted  that
full Bench decision of Allahabad High Court in the case of  Union  of  India
Vs. Mohd. Yasin Ansari [(2006) 3 UPBEBC 2508] has held that a person in  the
armed forces even with lower degree of  disability  cannot  be  retained  in
services."



28.   Apart from the plea of the disabled officers  mentioned  being  vague,
for no particulars are given as to  the  extent  of  their  disability,  the
Union has made it clear that Standing Order No.7/99 will not apply and  that
since the job requirements demand a high level of fitness and  ability  CRPF
is exempted from the provisions of Section 47 of  the  Act.   Not  only  has
this plea not been raised before the High Court, but the plea raised  before
us is lacking in particulars and has to be dismissed for this reason also.

29.   We make it clear that the respondent, who has been occupying  official
accommodation, will vacate  such  accommodation  by  30th  June,  2015.  Mr.
Patwalia has assured us that,  given  the  facts  of  this  case,  no  penal
charges will be collected from him till the date on  which  he  vacates  the
said accommodation.

30.   The appeals are, therefore, allowed.  The judgment  of  the  Allahabad
High Court is set aside.  There will be no order as to costs.


............................................J.
                                  (T.S. Thakur)



............................................J.
                                  (R.F. Nariman)
New Delhi,
February 26, 2015.








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