WP (C) No. 9443/2007 Union of India Vs. Suresh Kumar

IN THE HIGH COURT OF DELHI AT NEW DELHI

WP (C) No. 9443/2007

17.12.2007

Pronounced on : December 17, 2007

Union of India and Ors. .....Petitioners

through : Mr. A.S. Dateer, Advocate

VERSUS

Suresh Kumar .....Respondent

through : NEMO

CORAM :-THE HON'BLE MR.JUSTICE A.K.SIKRI

THE HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether Reporters of Local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?3. Whether the judgment should be reported in the Digest?

A.K. SIKRI, J. (ORAL)1.The respondent herein, who belongs to a Scheduled Caste Community, was appointed as a Commercial Apprentice on 1.1.1978. With effect from 1.1.1984, he was promoted as Chief Parcel Supervisor. Next promotion is to the post of

commercial Inspector. The respondent was allowed to work as Commercial Inspector as he was posted on this post on

local arrangement in the year 1996. Further promotion is to the post of ACM (Group-B) for which purpose a candidate is to pass a written test. The respondent appeared in the said

test on 22.8.1998 for the assessment period 1998-2000 against 70% quota for filling up 27 vacancies. He also took

supplementary test on 19.9.1998 and qualified in these tests. Thereafter, he was medically examined. However, in

the medical examination, he was declared unfit and consequently he was not allowed to appear in the viva-voce test. Aggrieved by this action, the respondent filed OA No.

2055/1998 before the Tribunal wherein he sought permission to the effect that he should be allowed to appear in the viva-voce test. This petition was, however, dismissed on 30.8.2000. In the meantime, similarly placed employees,

namely, Jitender Varshney and Ors., had filed OA No. 1138/1998, which was allowed by the Tribunal vide orders dated 22.4.2002. The writ petition filed by the Government

against that order was dismissed by the High Court of Judicature at Allahabad. Special leave petition met the same fate and, thus, that judgment of the Tribunal in Varshney's case became final. In these circumstances, the respondent filed another OA, namely OA No. 1553/2006, referring to

the judgments of Varshney's case and another judgment of the Supreme Court which had been delivered in the

meantime, namely Union of India v. Sanjay Kumar Jain,

(2004) 6 SCC 708. The Tribunal has allowed this OA of the petitioner herein vide orders dated 7.2.2007 after relying upon the aforesaid judgments. Challenging this order, the

present petition is filed.

2.Case of the petitioners is that the respondent was declared medically unfit as he was found to be colourblind

during the medical examination. It is further submitted that having regard to the nature of job which an ACM is

supposed to perform, a person who is colourblind would be handicap in discharging the functions of this post and it was for this reason the petitioners have taken a policy decision

not to promote employees to the post of ACM (Group-B) who are colourblind as per the standard fixed in para 531(1) of IRMM ? 1981. He further submits that in Union of India v. Jitendra Varshney and Ors. {Civil Appeal No. 1953/2004} the issue as to whether a person who is colourblind would fall within the definition of blindness under Section 2(b) of

the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the 'Disability Act') was left open by the Supreme Court to be

decided in an appropriate case, as is clear from the following observations :-

?The counsel for the respondents contended that the facts of this case are squarely covered by the decision of this Court rendered in Union of India vs. Sanjay Kumar Jain, 2004 (6) SCC 708, particularly, the direction issued in Paragraph 9 of the judgment. At the bar it has been conceded by Mr. T.S. Doabia, learned senior counsel that the aforesaid judgment of this Court has been implemented. Mr. Doabia, however, tried to distinguish the judgment on the ground that in Sanjay Kumar Jain (supra) the disability as defined under Section 2(a) (i) and 2(b) of the Persons with Disabilities (Equal Opportunities) Protection of Rights and Full Participation Act, 1997 (hereinafter the Act), has not been considered by this Court. According to him the case of the respondents does not fall within the ambit of disability as defined under Section 2(a)(i) and 2(b) of the

said Act. We found that this contention has not been raised before the tribunal as well as before the High Court. This contention has been urged for the first time in the Supreme Court. This cannot be allowed in the facts of this Case. We, however, keep it open to be decided in the appropriate cases whenever raised such issue before the tribunal or before the High Court. In our view the case at hand is squarely covered by the decision of this Court in Sanjay Kumar Jain (supra).?

3.Section 2(i) of the Disability Act defines disability and blindness is one of the disability mentioned therein. The expression 'blindness' is defined in Section 2(b) of the said Act and reads as under :-

?2. Definitions -

xx xx xx

(b) ?blindness? refers to a condition where a person suffers from any of the following conditions, namely:-

(i) total absence of sight; or(ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or(iii) limitation of the field of vision subtending an angle of 20 degree or worse;

xx xx xx?

4.Clause (ii) of sub-section (b) of Section 2 of the Disability Act includes those persons whose visual acuity does not exceed 6/60 or 20/200 (snellen) in the better eye with correcting lenses. We gather from the impugned judgment of the Tribunal that counsel for the respondent had placed material before the Tribunal from Wikipedia, the free encyclopedia, to demonstrate that visual acuity usually falls to 20/50 to 20/400 range of those persons who are

colourblind. {Source ? http://en.wikipedia.org/wiki/color-blindness}. Thus, it is possible that a person who is colourblind may be covered by the expression 'blindness' if he fulfils the requisite laid down in Clause (ii) of Section 2(b) of the Disability Act.

5. Further, liberal interpretation should be attributed to such a provision, including the expression 'blindness'. We may note that a Division Bench of the Madras High Court in G. Muthu v. Management of Tamil Nadu State Transport Corporation (Madurai) Ltd. rep. By its Managing Director, Madurai, (2006) 4 MLJ 1669, have gone to the extent of holding that Section 2(i) of the Disability Act is not exhaustive. While taking this view, the Division Bench referred to the following judgments :-

(i) Vijoy and Director-General, Border Security Force 2006(1) L.L.N 665, wherein the Apex Court held as follows:

?A rigorous, literal and pedantic interpretation is not to be attributed to the definition of disease as appearing under the Rules, for the only reason that a particular disease is not included in the schedule and if the disease has caused disability to a serving personnel to continue in service, the law is not helpless in the matter of disability pension. It will not also be altogether out of context to note that some of the diseases noted in the guidelines which are given as examples, fibrositis, bronchitis, eczema etc., are not included in the schedule and yet it provided that in such cases the resurvey Medical Board should assess the disability. The crucial consideration should be whether a serving personnel is disabled continue in service owing to any disease. It is in that context the opinion of the Medical Board becomes crucially relevant?

(ii) In The Vanguard Fire and General Insurance Co., Ltd. Madras v. Fraser and Ross and Anr. AIR 1960 SC 971 the Apex Court has held in Para-6 which reads as follows :-

?6. The main basis of this contention is the definition of the word ``insurer'` in Section 2(9) of the Act. It is pointed out that that definition begins with the words ``insurer means'` and is therefore exhaustive. It may be accepted that generally the word `` insurer'` has been defined for the purposes of the Act to mean a person or body corporate etc. which is actually carrying on the business of insurance, i.e., the business of effecting contracts of insurance of whatever kind they might be. But Section 2 begins with the words``in this Act, unless there is anything repugnant in the subject or context'` and then come the various definition clauses of which (9) is one. It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject of the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the subject or context. Therefore in finding out the meaning of the word 'insurer'` in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context. In view of this qualification, the Court has not only to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances. Therefore, though ordinarily the word 'insurer'` as used in the Act would mean a person or body corporate actually carrying on the business of insurance it may be that in certain sections the word may have a somewhat different meaning.?

(iii) In K.V. Muthu v. Angamuthuammal AIR 1997 SC 628 wherein the Hon'ble Apex Court while dealing with the definition of family under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has held as in Paragraphs 10 to 12 as follows :-

?10. Apparently, it appears that the definition is conclusive as the word ``means'` has been used to specify the members, namely, spouse, son, daughter, grandchild or dependant parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens with the words ``in this Act, unless the context otherwise requires'` which indicates that the definitions, as for example, that of ``family'`, which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislature.

11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted.12. Where the definition or expression, as in the instant case, is preceded by the words ``unless the context otherwise requires'`, the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied.?

6. In G. Muthu (supra), the Madras High Court thus concluded that the term 'disability' used in Section 47 can draw support not only in respect of defined

'disability' contained in Section 2(i) of the Disability Act, but will also encompass such other disabilities which would disable a person from performing to work which he held immediately prior to acquisition of such 'disability' and thereby entitle him to avail the benefits conferred under the said provisions for having acquired such a 'disability'. Even if we do not pitch the case to that high level and confine ourselves within the four corners of Section 2(b) which defines 'blindness', the case of the respondent herein may get covered within that definition if he fulfils the requisites of clause (ii) thereof. In these circumstances, it would be important to see the final directions given by the Tribunal in the judgment, which are contained in para 9 and are to the following effect :-

?9. In that view of the matter, we are of the view that the ends of justice would be fully met, if a direction be issued to the respondents to get the applicant examined suitably for determining his visual acuity and on the basis of the report, the competent authority shall process the case of the applicant and consequential benefits be allowed, in case he is found fit under the rules and instructions. Order accordingly. This shall be done within two months from the date of receipt of a copy of this order.?

7. The Tribunal has, thus, directed the petitioners herein to get the respondent examined suitably for determining his visual acuity. Obviously, in the earlier medical examination which was conducted after the respondent had qualified the written test, examination was not carried out with this purpose. This direction is given in order to know as to what is the visual acuity of the respondent herein and whether visual acuity is not exceeding 6/60 or 20/200. Only if he falls in the aforesaid category then he would be treated as blind and in that eventuality the Tribunal has given further directions to process the case of the respondent and given him consequential benefits.

8. Without getting the respondent medically examined, the petitioners have approached this Court, that too almost

after 7 months as the impugned judgment is dated 30.5.2007. This conduct of the petitioners is to be deprecated.

9. If the respondent fulfills the parameters of Section 2(b) of the Disability Act and is to be treated as blind, he would clearly be a disabled person under the said Act. Further, in that case Section 47 of the Act would come to the aid and rescue of the respondent, which stipulates that there cannot be any discrimination in Government employments in respect of a person who acquires disability during his service. The mandate of this Section goes on to the extent of directing the Government to shift him to some other post with same pay-scale and service benefits in case, after acquiring the disability, he is not suitable for the post he was holding. The said provision takes within its sweep the promotions as well, as is clear from the plain language thereof, which is to the following effect :-

?47. Non-discrimination in Government employments. -

(1) No establishment shall dispense with, or reduce in rank, an employeewho 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.?

It is, therefore, clear that if the respondent is a disabled person under the Disability Act, his promotion cannot be ignored merely because he has acquired the aforesaid disability.

10. In the present case, as noticed above, the respondent had passed the written test way back in the year 1998. Even if it is presumed that he may not be fit to discharge the duties of the post of ACM (Group-B) because of his aforesaid disability, he has to be posted in an equivalent post with same salary as attached to the post of ACM (Group-B). In these circumstances, we dismiss the petition and at the same time direct the petitioners to get the respondent medically examined within four weeks from the date of receipt of copy of this order as per the directions of the Tribunal and depending upon the report take further action thereon.

11. As we have dismissed the writ petition in limine without issuing notice to the respondent, copy of this order shall be forwarded to the respondent by the Registry of this Court.

(A.K. SIKRI)JUDGE

(VIPIN SANGHI)JUDGEDecember 17, 2007nskReportable

COURTESY-

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