PRADIP KUMAR MAITY versus CHINMOY KUMAR BHUNIA & ORS.

Citation: [2013] 7 S.C.R. 117 · Decided: 01-07-2013 · Supreme Court of India · Bench: ALTAMAS KABIR, ANIL R. DAVE, VIKRAMAJIT SEN · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2013] 7 S.C.R. 117 
PRADIP KUMAR MAITY 
v. 
CHINMOY KUMAR BHUNIA & ORS. 
(Civil Appeal No. 4820 of 2013) 
JULY 01, 2013 
[ALTAMAS KABIR, CJI, ANIL R. DAVE AND 
VIKRAMAJIT SEN, JJ.] 
PERSONS 
WITH 
DISABILITIES 
(EQUAL 
A• 
B 
OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL 
C 
.PARTICIPATION) ACT, 1995: 
Section 38 -- Age relaxation vis-a-vis physically 
handicapped - Appointment of physically handicapped 
challenged as he had crossed the age prescribed - Held: 
0 
Expression "appropriate Government and local authority shall 
formulate schemes for ensuring employment of persons with 
disability" and "may provide for relaxation of upper age limit" 
- Connotation of - Where the Legislature uses the words 'shall' 
and 'may' in close proximity of each other, as in s. 38, word 
E 
'may' cannot be construed as mandatory -- Act postulates age 
relaxation only as directory or expectant - Failure to mandate 
age relaxation is a lacuna in the legislation - Since the 
Government Order not providing age relaxation to physically 
handicapped continues to hold the field, succour cannot be 
extended to appellant who is indubitably suffering from a 
F 
disability - Government of West Bengal Memo No. 1736(21) 
GA dated 1.11.1999 - Service law -- Age relaxation to 
physically handicapped - Costs -- Proclamation adopted by 
the Ecanomic and Social Commission for Asian and Pacific 
Region (ESCAP) - Legislation. 
G 
Section 2(t) - 'Person with disability' -- Held: Means a 
person suffering from not less than forty per cent of any 
117 
H 
118 
SUPREME COURT REPORTS 
[2013] 7 S.C.R. 
A disability as certified by a medical authority -- On the coming 
into force of the Disabilities Act on 7.2.1996, the definition in 
s.2(t) shall apply notwithstanding any State legislation or 
Rules irreconcilable or repugnant thereto. 
8 
The appellant, a physically handicapped, suffering 
from 60% hearing disability, and respondent no. 1 were 
interviewed for the post of Group 'D' non-teaching staff. 
The appellant securing first place in the merit list was 
appointed. Respondent no. 1, who secured second 
C position, challenged the appointment of the appellant on 
the ground that on the date of interview he had crossed 
the age prescribed. Though concurrent finding of the 
single Judge and the Division Bench of the High Court 
were against the appellant, he continued to hold the post 
even during the pendency of the instant appeal. 
D 
Dismissing the appeal, the Court 
HELD: 1.1 Persons with Disabilities (Equal 
Opportunities, Protection of Rights and Full Participation) 
E Act, 1995, inter alia, ordains in Chapter VI, provisions 
relating to the employment of disabled persons through 
the device of reservation of posts, setting apart not less 
than three per cent (3%) seats in Government educational 
institutions and other educational institutions receiving 
aid from Government. Section 38 postulates that the 
F appropriate Government and local authority shall 
formulate schemes for ensuring employment of persons 
with disabilities and such schemes may provide for the 
relaxation of upper age limits. Where the Legislature uses 
the words 'shall' and 'may' in close proximity of each 
G other, as· in s. 38, word 'may' cannot be construed as 
mandatory. [para 3) [122-E-F; 123-C-E] 
H 
Chinnamarkathian Vs. Ayyavod 1982 (2) SCR 146 = 
(1982) 1 sec 159 - relied on. 
PRADIP KUMAR MAITY v. CHINMOY KUMAR BHUNIA 119 
& ORS. 
'Principles of Statutory lnterpretatiori' by G.P. Singh -
A 
· referred to. 
Proclamation adopted by the Economic and Social 
Commission for Asian and Pacific Region (ESCAP) -
referred to. 
B 
1.2 The Disabilities Act does not in terms provide for 
age relaxation vis-a-vis persons suffering from 
disabilities, though this ought to have been woven into 
the fabric of the statute. The failure to mandate age 
relaxation is a lacuna in the legislation since it fails to C 
comprehensively put in place affirmative action in favour 
of the disabled sections with regard to employment in 
even the non-reserved posts. The Disabilities Act should, 
therefore, explicitly postulate compulsory relaxation of 
age of candidates suffering from any of the statutorily D 
recognized disabilities. [para 3 and 8] [123-G-H; 126-A; 
129-A-B] 
1.3 Section 2(t) defines a 'person with disability' to 
mean a person suffering from not less than forty per cent 
E 
of any disability as certified by a medical authority. 
Therefore, it cannot be accepted that this definition w

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