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2013 DIGILAW 1496 (ALL)

UNION OF INDIA v. MOHD. YASIN ANSARI

2013-05-22

A.P.SAHI, ASHOK BHUSHAN, SURYA PRAKASH KESARWANI

body2013
JUDGMENT Re: Review Application No. 87350 of 2007 By the Court.—This is a review application filed by the respondent -applicants to review the judgment and order dated 21.9.2006, passed by the Full Bench of this Court. 2. Sri R.A. Pandey, learned Counsel for the applicants in support of the review application submitted that three writ petitioners; i.e. Gyanendra Singh, Inder Deo Oraon and Ishu Narayan were suffering from major disability and were discharged in category-5 hence, it was not a case of minor disability or disability of less than 40% so as not to attract the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He submits that notification dated 28.3.2002 issued by the Central Government in exercise of proviso to Section 47 of 1995 Act, was rightly quashed by learned Single Judge and the appellate Bench (Full Bench) erred in holding that it was not necessary to inter into merits of the validity of the notification in the appeal. He submits that it was necessary for the appellate Bench to pronounce over the validity of the said notification. Elaborating his submissions, Mr. Pandey submits that notification dated 28.3.2002 discriminates between the combatant force and other forces in the establishment and exemption provided in the proviso to Section 47, can be granted to an establishment as a whole and it cannot be applied in part of the establishment. The entire army establishment should have been exempted or none of them. He further submits that reasons given by learned Single Judge in quashing the notification dated 28.3.2002 were perfectly justified. 3. Sri Ajay Bhanot, learned Counsel appearing for the Union of India submits that the notification dated 28.3.2002 was issued by the Government of India in exercise of delegated legislative power under proviso to Section 47 and in pursuance of the policy decision taken by the Central Government. He submits that looking to the nature of duties performed by the combatant force, the exemption was in the interest of service and learned Single Judge erred in quashing the said notification. He fully supports the judgment of Full Bench and submitted that review application deserves to be rejected. 4. We have considered the submissions of learned counsel for the parties and have perused the record. 5. He fully supports the judgment of Full Bench and submitted that review application deserves to be rejected. 4. We have considered the submissions of learned counsel for the parties and have perused the record. 5. The main thrust of submissions of the learned Counsel for the applicants is regarding invalidity of the notification dated 28.3.2002. Although, the Full Bench while considering the submission regarding validity or invalidity of the notification dated 28.3.2002 has observed that since the disability of the petitioners was not more than 40% in any case hence, the 1995 Act shall not be applicable. Learned counsel for the applicant to meet the aforesaid, has submitted that three persons namely; Gyanendra Singh, Inder Deo Oraon and Ishu Narayan were discharged in category-5 hence, the said reasoning do not obviate the necessity to inter into the issue whether the notification was a valid notification or not. 6. In view of the fact that the notification dated 28.3.2002, which is a policy decision of the Government of India and affects large number of personnels, we proceed to examine the submissions regarding the validity of the notification on merits. The 1995 Act was enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. Parliament enacted the said Act in ‘obedience of the decision taken in an international Economic and Social Commission for Asian and Pacific Region in December, 1992. The India which was signatory to the aforesaid proclamation, enacted the 1995 Act. Section 47 of the Act provides for Non-discrimination in Government employment. Section 47 of the Act being relevant is quoted herein below: “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.” 7. The proviso to Section 47 empowers the appropriate Government to exempt any establishment having regard to type of work carried on in any establishment. The proviso contemplates exemption of those establishments where having regard to the type of the work carried on the disabled persons cannot efficiently perform their duties. There are large number of establishments in which 100% physical and mental efficiency may be required for performance of duty. Thus, the power given under the proviso is legislative power delegated to the Government to exercise it with regard to a particular establishment. 8. Learned Single Judge also in paragraph 41 has noted the fact that the notification is legislative in character but it was observed that it is not an Act of Parliament. It is true that even the delegated legislation can be tested on the anvil of Articles 14 and 21 of the Constitution of India. The exemption has been granted to combatant force. Combatant force is that part of army establishment which has to be equipped with 100% physical and mental efficiency. The combatant force works in different units and units comprised of different personnels complementing each other. When the Government exempted the combatant force from applicability of Section 47, can it be said that such exercise of power is arbitrary or discriminatory. Combatant force is a class in itself and looking to the nature of the duties they have to perform, the exemption granted, cannot be said to be discriminatory. There is a reasonable classification with the object sought to be achieved hence, we are of the view that notification cannot be said to be violative of Article 14. 9. Learned Single Judge in paragraph 44 of the judgment has held that the notification violates the right of equality guaranteed to the disabled persons under Article 14 of the Constitution of India and suffers from vice of wednesbury unreasonableness. 9. Learned Single Judge in paragraph 44 of the judgment has held that the notification violates the right of equality guaranteed to the disabled persons under Article 14 of the Constitution of India and suffers from vice of wednesbury unreasonableness. The right of equality guaranteed to disabled persons in no way is violated by exemption granted to a person who is discharged from army on medical ground as disabled persons, who are extended several benefits including re-employment in civil services and large number of other benefits provided by the Government from time to time. The right of equality granted to disabled persons cannot be said to be violated in any manner when exemption is granted under Section 47. It is relevant to note that in the writ petition there was no challenge to proviso to Section 47 and the challenge was only to the notification dated 28.3.2002, which was raised by way of an amendment in the writ petition. Section 47 proviso having not been challenged in the writ petition, it cannot be said that it violates right of equality of disabled persons. In so far as wednesbury unreasonableness as observed by learned Single Judge is concerned, suffice it to say that decision was not an administrative decision which can be tested on the principle of wednesbury unreasonableness. Wednesbury unreasonableness is a principle to scrutinise the administrative decision hence, the said reason cannot be held to be attracted with regard to the notification issued under the proviso to Section 47. In view of the foregoing discussions, when there was no invalidity in the notification dated 28.3.2002, the appellate Court did not commit any error in quashing that part of the judgment of the learned Single Judge by which he had quashed the notification. Even if the submission of learned Counsel for the applicant is accepted that the three persons out of six, who are more than 40% disabled, they by virtue of notification dated 28.3.2002 cannot claim benefit of Section 47 of the Act, 1995. The submission of Sri R.A. Pandey is that under proviso to Section 47, it is the whole establishment, which can be exempted and exemption only of combatant force is impermissible. The submission of Sri R.A. Pandey is that under proviso to Section 47, it is the whole establishment, which can be exempted and exemption only of combatant force is impermissible. The proviso to Section 47 empowers the appropriate Government “by notification and subject to such conditions”, if any as may be specified in such notification to “exempt any establishment from the provisions of this section” As observed above, the appropriate Government while issuing a notification exercise delegated legislative power and when the proviso itself contemplate “subject to such condition”, the submission of learned counsel for the applicant that exemption of whole establishment has to be made, cannot be accepted. The statutory provision itself requires exemption of any establishment with conditions, this clearly means that while exercising the delegated legislative powers, the whole establishment can be exempted or only part of it can be exempted and the exemption can be with any condition. In case the submission raised by Sri Pandey is accepted that every time the entire establishment has to be exempted, the exercise of such power may create difficulty in achieving the object of exemption. It is well established principle of statutory interpretation that such interpretation be adopted which advances the object and purpose of statutory enactment. Conferring power to the Government to exempt either whole of the establishment or any part of it shall advance the object and purpose of the power. Thus, the submission of Sri Pandey that while granting exemption under proviso to Section 47, the Central Government cannot exempt only combatant force, cannot be accepted. 10. The Full Bench has considered the submissions on merits and has rendered the decision after hearing learned counsel for the applicants at length. 11. Learned Counsel for the applicants lastly submitted that two writ petitions; one filed by Anil Singh being writ petition No. 50396 of 2004 and the second writ petition filed by Hasib Ahmed Islam being writ petition No. 15417 were dismissed by learned Single Judge on the ground that the writ petition was barred by laches as well as on account of lack of territorial jurisdiction. It is relevant to note that no appeal was filed by these two petitioners hence, we fail to see how the applicants can be permitted to attack the judgement in review application on the above ground. 12. It is relevant to note that no appeal was filed by these two petitioners hence, we fail to see how the applicants can be permitted to attack the judgement in review application on the above ground. 12. We see no good ground to allow the review application, the review application is rejected. —————