JUDGMENT : Ainu Sivaraman, J 1. The question which arises for consideration in this O.P.(CAT) is whether an employee, who suffers a disability while in service, is entitled to promotion dehors the contention of the respondent that he is unable to discharge the duties of the promoted post. The issue requires to be considered in the light of Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. (Act 1 of 1996) (hereinafter referred as "the 1996 Act") 2. The issue was referred for consideration of the Full Bench by a Division Bench doubting the correctness of judgment in Union of India and another v. N.Chandralal and another [ 2017 (I) KHC 898 ] on the ground that the ratio of the decision of the Apex Court in Union of India v. Devendra Kumar Pant & Others [ (2009) 14 SCC 546 ] was not properly considered while rendering the former judgment. 3. Heard Sri.S.Radhakrishnan, the learned counsel for the Southern Railway and Sri.T.C.Govindaswamy, the learned counsel for the respondents. 4. The applicant before the CAT was an Assistant Loco Pilot in the Trivandrum Division. He was categorized in the A-l medical category. In a routine medical examination, it was found that he could not be continued in the said category and was, therefore, de-categorized to B-l. It is submitted that Indian Railway Medical Manual,Volume 1, 3" Edition-2000 provides for medical examination of candidates. Section B of Chapter V of the Medical Manual provides for medical examination of candidates for appointment to Non-Gazetted Railway service. Clause 509 provides for periodical medical re-examination of serving Railway employees. Detailed guidelines with regard to the procedure for medical examination and specific diseases affecting fitness are provided in Annexure III to the Chapter. Relevant portion of Clause 510 is extracted here under- "510 Classification of staff:-(1) for the purpose of visual acuity and general physical examination of candidates and of serving Railway employees, the non-Gazetted Railway services are divided into the following broad groups and classes. The detailed categories of Railway posts under each of the classes/groups mentioned below are given in Annexure IV to this chapter:- Groups Classes A. Vision tests required in the interest of public safety A-l Foot plate staff, Rail car drivers and Navigating staff(For foot plate staff) XXX XXX XXX XXX XXX XXX XXX XXX XXX...." 5. The detailed categories of Railway posts under each of the classes/groups mentioned below are given in Annexure IV to this chapter:- Groups Classes A. Vision tests required in the interest of public safety A-l Foot plate staff, Rail car drivers and Navigating staff(For foot plate staff) XXX XXX XXX XXX XXX XXX XXX XXX XXX...." 5. It is stated that the petitioner being an Assistant Loco Pilot seeking promotion to the post of Loco Pilot is admittedly a rail car driver and is, therefore, to be retained in the A-l medical category, if he wants to continue as a rail car driver. It is stated that by Annexure Al dated 11.01.2002 produced along with the OA, the petitioner was de-categorized as B-l and below and found fit for a job not involving working in a noisy atmosphere. It is stated that going by the provisions of the Railway Medical Manual and Section 47(2) of the 1996 Act, the applicant, who was not fit to work as a rail car driver because of the medical de-categorization, had been retained in a supernumerary post and had been assigned with other duties. In the year 2011, he was absorbed against a post of Junior Clerk in the same scale of pay, since he was unfit to perform the functions of Assistant Loco Pilot. In the year 2009, by Annexure A2 produced along with Ext.P1 O.A, several juniors of the applicant who were found to be medically fit and suitable were promoted to officiate to the non functional post of Senior Assistant Loco Pilot. The applicant submitted Annexure A3 objection dated 04.12.2009 raising a complaint that he was also entitled to promotion as Senior Assistant Loco Pilot with the grade pay as granted in Annexure A2. It is stated that one N.Chandralal, a similarly situated employee, had obtained Annexure A4 order holding that he was entitled to be promoted as Senior Assistant Loco Pilot along with his juniors and for all consequential benefits. It is stated that Annexure A4 order had been challenged before this Court and an order of stay was issued in W.P.(C).NO.22488 of 2009. 6. The applicant, in the meanwhile had been absorbed as Junior Clerk. He had filed O.A.No.832/2012 along with other medically de-categorized Assistant Loco Pilots, seeking absorption as Senior Clerks in the pay band with the grade pay as applicable to Senior Assistant Loco Pilots. 6. The applicant, in the meanwhile had been absorbed as Junior Clerk. He had filed O.A.No.832/2012 along with other medically de-categorized Assistant Loco Pilots, seeking absorption as Senior Clerks in the pay band with the grade pay as applicable to Senior Assistant Loco Pilots. The OA was allowed. The Railways challenged the grant of grade pay of RS.2400/- to the petitioner and others by filing O.P.(CAT) No.158 of 2015, while O.P.(CAT).No.3423 of 2013 was filed by the applicants as well claiming the higher grade pay of Rs.2800/-. After hearing the contentions, a Division Bench of this Court in a common judgment dated 5" day of December, 2019, found that the applicants, who were absorbed in alternative posts for reason of medical de-categorization were not eligible for the grant of higher grade pay as was granted to the running staff. It was held that they are entitled to only the grade pay of Rs.1900/-, running allowance of 30% of the total basic pay including that of the grade pay having been added to determine the pay within the pay band applicable to them. It was held that there is no further claim for a further addition to their grade pay and resultant fixation of a higher grade pay. The order of the Tribunal was set aside and the further claim raised by the applicants was rejected. 7. It is submitted by the learned counsel for the petitioner/Railways that by filing an OA in the year 2012 seeking the absorption as Senior Clerk with the grade pay applicable to Senior Assistant Loco Pilots, the petitioner had impliedly waived his right to challenge the promotion granted to his juniors to the post of Senior Assistant Loco Pilot. It is submitted that the claim of the petitioners as is evident from the relief sought for in the present Exhibit PI OA was for a declaration that he is entitled to be considered and promoted as Senior Assistant Loco Pilot in pay band 1 plus grade pay of Rs.2400/- on par with his juniors at serial numbers 5 and below in Annexure A2 with all consequential benefits. It is contended that this was a claim which ought to have been taken by the petitioner if he was actually aggrieved, in the OA filed in the year 2012 and that the present claim is, therefore barred by the principle of constructive res judicata. 8. It is contended that this was a claim which ought to have been taken by the petitioner if he was actually aggrieved, in the OA filed in the year 2012 and that the present claim is, therefore barred by the principle of constructive res judicata. 8. With regard to the provisions of the Act, it is submitted that Section 2 of the Act begins with stating that 'In this Act unless the context otherwise requires'. Section 2 (i) defines disability to mean (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment (v) locomotor disability; (vi) mental retardation; and (vii) mental illness. Person with disability is defined under Section 2 (t) to mean a person suffering from not less than forty percent of "any disability" as certified by a medical authority. It is submitted that Section 32 provides for identification of posts in the establishments which can be reserved for the persons with disability and review of the list of posts identified and up-dating of the same, taking into consideration the developments in technology. Chapter VIII is a chapter on non-discrimination where section 47 finds a place. 9. It is submitted by the learned counsel for the petitioner that Section 47(2) specifically prohibits the denial of a promotion merely on the ground of a disability. It is submitted that power is vested in the appropriate government, by notification, to exempt any establishment from the provisions of the Section, having regard to the type of work carried out and subject to such conditions that may be specified. It is submitted that considering a claim specifically raised under Section 47(2), the Apex Court in Union of India v. Devendra Kumar Pant & Others [ (2009) 14 SCC 546 ] had specifically found that the meaning of Section 47(2) is that a person who is otherwise eligible for promotion shall not be denied promotion "merely" or "only" on the ground that he suffers from disability. It was held that if the disability would affect the discharge of the functions or performance in a higher post or if the disability would pose a threat to the safety of the co-employees, members of the public or the employee himself, then, it would not be a denial of promotion "merely" on the ground of disability but would be by reason of the disability plus something more, that is, the adverse effect of the disability upon the employee's performance of the higher duties or functions attached to the promotional post. It is therefore held that Section 47(2) bars promotion being denied to a person on the ground of disability only if the disability does not effect his capacity to discharge the higher functions of the promotional post. It was held that where the employers stipulates minimum standards for promotion keeping in view the safety, security and efficiency and if the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then Section 47(2) will not be attracted, nor can it be pressed into service. 10. However, it is stated that in an identical fact situation, a Division Bench of this Court in N.Chandralal's case (supra) referred to the decision in Devendra Kumar Pant (supra) but held that since the applicant was medically fit in the A-l category while he was initially working as Assistant Loco Pilot, he would have been entitled to be promoted as Senior Assistant Loco Pilot unless the disability had intervened. Relying on subsection (2) of Section 47 and para 213 A of Chapter II Section B of the Railway Establishment Manual, it was held that the applicant cannot be denied promotion as Senior Assistant Loco Pilot in the scale of pay Rs.4000-6000/- pending alternate appointment according to medical classification merely on the ground of his disability. It is submitted that the decision in Devendra Kumar Pant's case was specifically brought to the notice of the Bench considering Chandralal's case. It was found that the Apex Court in Devendra Kumar Pant's case had held that if promotion is denied on the ground that it will affect the safety, security and performance then it is not a denial of promotion merely on the ground of disability, but is denial of promotion by reason of the disability and something more. It was found that the Apex Court in Devendra Kumar Pant's case had held that if promotion is denied on the ground that it will affect the safety, security and performance then it is not a denial of promotion merely on the ground of disability, but is denial of promotion by reason of the disability and something more. However, the Bench went on to hold that since the incumbent was medically fit in the A-l category before he was grievously injured while on duty, he would be entitled for the promotion as has been granted to his juniors. 11. It is contended by the learned counsel for the petitioner/Railways that though the provisions of the 1996 Act and the ratio in Devendra Kumar Pant's case was specifically referred to in the judgment, it has not been properly appreciated and the distinctions, if any, in the facts of the matter has not been properly explained in the decision. It is submitted that in the facts of the instant case, while working as Assistant Loco Pilot, the applicant was found medically unfit to hold the said post and had been adjusted against a supernumerary post, the contention that he is entitled to promotion at par with his juniors who were medically fit to hold the post of Assistant Loco Pilot as well as the higher post of Senior Assistant Loco Pilot is completely fallacious. The applicant was not medically fit and is therefore admittedly not entitled to hold his original post or the promoted post by virtue of the medical de-categorization. It is submitted that the appointments and promotions in the running staff category has been made specifically subject to periodical medical examinations in the larger public interest and in the interest of public safety and the safety of the employee concerned. It is stated that the de-categorization of the petitioner rendered him clearly unfit to be retained as a running staff and he had therefore been removed from the cadre of Assistant Loco Pilot and accommodated in a supernumerary post. Thereafter, he had been granted an alternative posting in a clerical post in the same pay band which was the subject matter of OP(CAT) NO.3423/2013. Thereafter, he had been granted an alternative posting in a clerical post in the same pay band which was the subject matter of OP(CAT) NO.3423/2013. It is contended that in view of the clear declaration of law by the Apex Court in Devendra Kumar Pant's case, there can be no doubt that the petitioner, who is unable by virtue of his medical de-categorization to perform the duties of running staff in the Railways, is not entitled to invoke Section 47(2) and seek promotion to posts he is not eligible to hold. 12. The learned counsel for the petitioner/Railways relied on the decisions in L.M.S. Special Schools v. Omana [ 2012 (3) KLT 507 ], Union of India and others v. Dileep Kumar Singh [ (2015) 4 SCC 421 ] and SGT Chaman Lal v. Union of India and others [ (2018) 14 SCC 455 ]. These decisions have been cited by the opposing counsel as well. 13. Sri. T.C.Govindaswamy, the learned counsel for the applicant)' respondent in OP(CAT) would submit that the petitioner entered service as a Diesel Assistant in May 1993. He was posted as Assistant Loco Pilot in the Trivandrum Division on 30.03.2001. On 20.12.2001, he was found medically unfit and was de-categorized from the A-I medical category in which he had been included. He was accommodated in a supernumerary post and granted an alternative appointment as Clerk in 2011. It is stated that in 2009, his juniors had been granted promotion to non functional posts, but the petitioner had not been granted the benefit. He had approached the respondents with requests, but the same were ignored. It is stated that the facts in Chandralal's case are identical to the applicant's in this case and that substantial financial loss has been caused to the petitioner by reason of his non absorption in a clerical post in a timely manner and the denial of the promotion to the non functional post of Senior Assistant Loco Pilot with effect from the dates when his juniors were given the benefits. It is stated that the Railway Manual was updated in 1969, 1989 and 2009 respectively and the benefit of absorption in an equivalent post to medically de-categorized officers had been included in the Manuals all along. 14. It is stated that the Railway Manual was updated in 1969, 1989 and 2009 respectively and the benefit of absorption in an equivalent post to medically de-categorized officers had been included in the Manuals all along. 14. It is submitted that the statement of objects and reasons of the 1996 Act provides as follows: "The meeting to launch the Asian and Pacific Decade of the Disabled persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following: (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream. 2. Accordingly, it is proposed to provide inter aha for the constitution of Coordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged." 15. It is stated that Chapter VIII of the Act is the chapter dealing with non-discrimination. It is submitted that Section 47 deals with the case of employees, who acquire disability during service. It is submitted that the case considered by the Apex Court in Devendra Kumar Pant's case (supra) was not a case of disability acquired while in service at all and therefore the issue considered was not relevant to the facts of that case. It is submitted that the Division Bench in Chandralal's case (supra) had specifically referred to Devendra Kumar Pant's case and had referred to the facts on which Devendra Kumar Pant had been decided. The observations in Devendra Kumar Pants case were found to not bind this Court since the factual aspects of the matter were entirely different. It is stated that since the facts in Devendra Kumar Pant's case would not disclose a disability acquired while in service, the findings of the Apex Court would not be applicable or binding. It is further submitted that Annexure A2 would clearly show that the promotions granted to juniors were non functional in nature and that as such, the decision in Chandralal's case, where the facts are identical to the case in hand ought to be followed in this case as well. 16. It is further submitted that Annexure A2 would clearly show that the promotions granted to juniors were non functional in nature and that as such, the decision in Chandralal's case, where the facts are identical to the case in hand ought to be followed in this case as well. 16. The learned counsel appearing for the respondent placed reliance on the following decisions in Kunal Singh v. Union of India [ (2003) 4 SCC 524 ] and Union of India v. Sanjay Kumar Jain [ (2004) 6 SCC 708 ], Rani Paul v. Kerala State Road Transport Corporation, TVM and another (2015 KHC 116), Anil Kumar Mahajan v. Union of India and Others (2013 KHC 4490), Bhagwan Dass and Another v. Punjab State Electricity Board (2008 KHC 4024), L.M.S. Special Schools v. Omana [ 2012 (3) KLT 507 ], Union of India and others v. Dileep Kumar Singh [ (2015) 4 SCC 421 ]. The first two of those decisions were specifically referred to and considered by the Apex Court in Devendra Kumar Pant's case. 17. We have considered the contentions advanced and perused the decision relied on by the learned counsel. It is not in dispute that the 1996 Act is a piece of social welfare legislation intended to improve the status of disabled persons and to eradicate the stigma and discrimination existing in the society as against persons with disabilities. The very nomenclature of the enactment would make it clear that the attainment of equal opportunities to persons with disabilities is the avowed intention of the Act. Section 2(i) defines disability to mean specified disabilities. However, Section 2(t) departs therefrom and defines "person with disability" to mean a person suffering from not less than 40% of "any disability". In matters of employment, the 1996 Act provides for identification of posts which can be reserved for persons with disabilities, for reservation of such posts and the filling up of such posts so identified. Reservation of seats in educational institutions is also provided for. Chapter VIII deals with non-discrimination. In matters of employment, the 1996 Act provides for identification of posts which can be reserved for persons with disabilities, for reservation of such posts and the filling up of such posts so identified. Reservation of seats in educational institutions is also provided for. Chapter VIII deals with non-discrimination. Section 47 reads as follows:- "47.Non-discrimination in Government employments.— (I) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not 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 he 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." 18. Section 47(1) in absolute terms states that an establishment shall not dispense with or reduce in rank, an employee who acquires a disability during his service. The proviso states that where the employee is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits or he may be kept on a supernumerary post till a suitable post become available or he attains the age of superannuation, whichever is earlier. Section 47(2) is a specific provision which says that no promotion shall be denied to a person merely on the ground of his disability. 19. The relevant provisions of the Railway Manual are as follows:- "189-A Promotions of Persons with Disability: There shall be no discrimination in the matter of promotion merely on ground of physical disability. This will apply to the categories of staff who have been recruited from the open market against the vacancies reserved for recruitment of physically handicapped and the staff who acquire disability during service and are absorbed in suitable alternative employment as per provisions contained in Chapter-XIII. This will apply to the categories of staff who have been recruited from the open market against the vacancies reserved for recruitment of physically handicapped and the staff who acquire disability during service and are absorbed in suitable alternative employment as per provisions contained in Chapter-XIII. Such staff will be considered for promotion in their turn based on their eligibility and suitability along with others in the selection/suitability/trade test, for promotion to higher grade post. 213. Promotion (a) A Railway servant may be promoted to fill any post whether a selection post or a non-selection post only if he is considered fit to perform the duties attached to the post. The General Manager or the Head of Department or Divisional Railway Manager may prescribe the passing of specified departmental or other tests as conditions precedent to a Railway servant being considered fit to hold specified post; such rules should be published for the information of the staff concerned. (b) Unless specifically provided otherwise, the promotion shall be made without any regard for communal or racial consideration.” 20. A Division Bench of this Court in L.M.S. Special Schools v. Omana [ 2012 (3) KLT 507 ] had held as follows:- "6. It is clear from sub-s.(1) above that it covers a situation where an employee acquires disability during his service. The proviso no doubt makes it clear that if the disability is of such nature that the person holding the post is unable to discharge his functions effectively by virtue of his disability, he is not entitled to continue as such. Protection is also provided to such persons by way of alternate employment who are found unsuitable for the post held by the person by virtue of the disability acquired and even if there is no suitable post for such persons they should be retained service in supernumerary posts in service until retirement. The clear idea conveyed by first proviso to sub-s.(1) of S.47 is that the employer should not engage a disabled person in a post only if he cannot function properly or effectively. However, sub-s.(2) prohibits denial of promotion merely on the ground of disability. Further, the proviso authorises the appropriate Government to declare any type of work carried on in any establishment as not covered by sub-s.(2). However, sub-s.(2) prohibits denial of promotion merely on the ground of disability. Further, the proviso authorises the appropriate Government to declare any type of work carried on in any establishment as not covered by sub-s.(2). What is visualised in the Section is that right of promotion of a disabled person is not absolute and the basic condition is his suitability for doing the work in the promoted post. Wherever disability stands in conflict with official responsibilities, the statute authorises the Government to exempt any establishment from operation of sub-s. (2) for specific appointments in any establishment. So much so suitability in an employment is not dispensed with even under the Persons with Disabilities Act. It may be that disability may be partial or full and inspite of disability of a kind or upto a level disabled person may be able to manage and discharge duties and in such cases promotion should not be denied merely on the ground of disability. However, if disability is of such nature that the person claiming promotion is unable to discharge his duties effectively in the promotion post claimed by him, certainly the employer is entitled to deny promotion to the disabled person. Of course it would be impossible for the Government to identify suitability of a person with disability with reference to every promotion post for every establishment where disabled persons engaged in lower levels claim promotions. We are of the view that there is an implied limitation in the claim for promotion by virtue of operation of subsections which insist that suitability and fitness cannot be dispensed with in any employment. So much so we feel even in the absence of any specific order under proviso to sub-s.(2) exempting any establishment or posts for being Riled up through promotion by disabled persons, still if the employer is satisfied of the inability or lack of fitness to discharge the functions and the responsibilities of office, promotion can be denied for want of fitness or suitability.” 21. However, it was found that since the appointment was for the post of Headmistress a blind school, the visually challenged person cannot be denied promotion merely on the ground that he has a physical handicap, unless it is contended that he is unable, by reason of his disability, to discharge the duties of the post. 22. However, it was found that since the appointment was for the post of Headmistress a blind school, the visually challenged person cannot be denied promotion merely on the ground that he has a physical handicap, unless it is contended that he is unable, by reason of his disability, to discharge the duties of the post. 22. In Union of India and others v. Dileep Kumar Singh [ (2015) 4 SCC 421 ], it was held that Section 47 applies to employees who acquire disability during service. It was held that the proviso to Section 47(2) which contemplates an exemption from the provisions of the Section is applicable to the entire Section and that the Government has the power to exempt certain establishments from the rigors of both Section 47(1) and 47(2). 23. In SGT Chaman Lal v. Union of India and others [ (2018) 14 SCC 455 ], the Apex Court held as follows:- "22. It is a well-established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfilment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly in 2005-2006 and also in the year 2006-2007, but he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre-March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case. 23. As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. 23. As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4-G4(P) would not be eligible for select promotion and can be considered only for time-bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfils the eligibility criteria including medical fitness for select promotion." 24.The Apex Court in Kunal Singh v. Union of India[ (2003) 4 SCC 524 ] held that in construing Section 47 which is a provision of the social beneficial enactment 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 purposes of the Act. It was held that the language of Section 47 is plain and certain, casting statutory obligation on the employer to protect an employee acquiring disability during service. 25. In Union of India v. Sanjay Kumar Jain [ (2004) 6 SCC 708 ] it was held that the case of an applicant to a Group B post in the railways, who was found to be visually handicapped and consequentially not permitted to participate in the viva voce test, would offend the mandate of Section 47(2) of the 1996 Act and paragraph 189A of the Establishment Manual. It was held that the proviso to the section did not give unbridled power to exclude any establishment from the purview of Section 47 but the exclusion can be only done under the circumstances specified therein and that too, by issuance of a notification for the purpose. 26. It was held that the proviso to the section did not give unbridled power to exclude any establishment from the purview of Section 47 but the exclusion can be only done under the circumstances specified therein and that too, by issuance of a notification for the purpose. 26. In Rani Paul v. Kerala State Road Transport Corporation, TVM and another (2015 KHC 116) it was held that the term 'disability' used in Section 47 will encompass all disabilities which would disable a person from performing the work which he held immediately prior to acquisition of that disability and thereby entitle him to avail the benefits conferred under the said provision. Relying on a Division Bench of the High Court of Madras in K.V.Muthu v. Angamuthu Animal [1997 KHC 246] after analysing the decision on the point it was held that the person with a disability and a person acquiring disability while in service are separate and distinct and the term disability used in Section 47 is not confined to the defined disabilities under Section 2(1), but will encompass such other disabilities which would render a person incapable of performing the duties performed by him prior to the acquisition of the disabilities. 27. In Anil Kumar Mahajan v. Union of India and Others (2013 KHC 4490) the issue considered was the benefit available to an IAS officer, who became unfit to hold the post after appointment. It was held that the services of the employee could not have been dispensed with and that he was entitled to the benefit of Section 47(1) of the 1996 Act. 28. In Bhagwan Dass and Another v. Punjab State Electricity Board (2008 KHC 4024), the Apex Court held that a person who is disabled at the time of entering into employment and a person who acquires a disability during service are treated differently by the statute. An employee who acquires disability while in service is entitled to protection under Section 47(1). Added to this, no promotion shall be denied to a person merely on the ground of his disability in terms of sub-section (2) of Section 47. It was held that the language of Section 47 is plain and certain, casting a statutory obligation on the employer to protect an employee who acquires a disability during service. 29. Added to this, no promotion shall be denied to a person merely on the ground of his disability in terms of sub-section (2) of Section 47. It was held that the language of Section 47 is plain and certain, casting a statutory obligation on the employer to protect an employee who acquires a disability during service. 29. We find that the said decisions do not in any way detract from the findings of the Apex Court in Devendra Kumar Pant's case. The specific finding in Devendra Kumar Pant's case was to the effect that the purport of Section 47(2), is to prevent denial of promotion merely because of a disability acquired while in service. We notice from the facts of the case as referred to in the decision by the Apex Court that the OA had been filed specifically seeking promotion relying on the provisions of Section 47(2). Therefore, the contention of the learned counsel for the respondent that the facts of the case would not disclose a situation which is covered by Section 47 would not be of any aid. The claim was admittedly raised under Section 47(2) and therefore, the Apex Court had pointedly considered the effect and operation of Section 47(2). It was on such a consideration that the Apex Court had categorically held that unless a promotion is denied merely on the ground of a disability and if the promotion is denied also on the basis of the inability of the officer to carry out the duties attached to the promoted post, the employee would not be entitled to claim such promotions in terms of Section 47(2). 30. The facts of N.Chandralal's case were almost identical to the facts in the instant case. After referring to the decision of the Apex Court in Devendra Kumar Pant's case, it was held in paragraphs 29, 30 and 31 of N.Chandralal's case as under:- "29. It was in that factual matrix that, the Apex Court held that if promotion is denied on the ground that it will affect the safety, security and performance, then it is not denial of promotion merely on the ground of his disability, but is denial of promotion by reasons of the disability it was something more, i.e., adverse effect of the disability upon the employee's performance of the higher duties of functions attached to the promotional post. 30. 30. In Annexure Al seniority list of Diesel Assistant of Trivandrum Division as on 1.10.2001, the applicant is SI.No.215. In the said seniority list, Shri.G.Thomas and Shri.Sunil jose are SI.Nos.216 and 217 respectively. By Annexure A3 office order the said persons and many others who are admittedly juniors to the applicant in Annexure Al seniority list were promoted as Senior Assistant Loco Pilot in the scale of Rs.4000-6000. However the applicant was not promoted as Senior Assistant Loco Pilot. The petitioners contended that, the applicant has already been medically decategorised for the post in 'running cadre' and as such he does not have the medical fitness to hold the post of Senior Assistant Loco Pilot. The juniors of the applicant were promoted to officiate as Senior Assistant Loco Pilot in the scale of Rs.4000-6000 since they were found medically fit in 'A-l' category. Therefore, according to the petitioners, the applicant is not entitled to be promoted as Senior Assistant Loco Pilot in the scale of Rs.4000-6000. 31. The fact that, before the applicant was medically decategorised in 'C-I' category and below in sedentary job, he was medically fit in 'A-I' category is evident from Annexure A2. Therefore, before the applicant was grievously injured while on duty, he was medically fit in 'A-I' category and entitled to be promoted as Senior Assistant Loco Pilot in the scale of Rs.4000-6000. Sub-section (2) of Section 47 of the PWD Act in crystal clear terms, provides that no promotion shall be denied to a person merely on the ground of his disability. In view of the statutory mandate under sub-section (2) of Section 47 of the Act and Para.213A under Chapter II, Section-B of Railway Establishment Manual, Volume-l, the applicant cannot be denied promotion as Senior Assistant Loco Pilot in the scale of Rs.4000-6000, pending alternative appointment according to medical classification, merely on the ground of his disability. " 31. However, on an anxious consideration of the reasoning of the Division Bench in N.Chandralal's case, we are of the opinion that the decision of the Apex Court in Devendra Kumar Pants case has not been properly considered or distinguished. In N.Chandralal's case also, the promotion had been denied not merely on account of the disability but on the ground that the incumbent was unsuitable to hold the post. In N.Chandralal's case also, the promotion had been denied not merely on account of the disability but on the ground that the incumbent was unsuitable to hold the post. The right of an employee who acquires a disability while in service is to be retained in service without any reduction in rank. The provisos to Section 47(1) would show the consequences of the acquisition of a disability during service. If the employee is found unfit to hold the post that he was holding on account of the disability, then the provisos come into play. He could be shifted to another post with the same pay scale and service benefits or he could be adjusted against a supernumerary post until a suitable post is available or he attains the age of superannuation. It is only in a situation where a promotion is denied to an employee "merely" on account of his disability that Section 47(2) would be applicable. The finding in N.Chandralal's case that the petitioner was entitled to promotion as Senior Assistant Loco Pilot does not appear to be justified in view of the fact that the promotion was not denied 'merely' on the ground of disability. 32. In that view of the matter, we are of the opinion that the decision of the Apex Court in Devendra Kumar Pant's case clearly governs the issue raised. In view of the above discussion, we are of the opinion that N.Chandralal's case does not lay down the correct law. The said decision is overruled. The reference is answered accordingly. Registry shall post the OP(CAT) before the Division Bench for disposal.