LexUNION OF INDIA versus SANJAY KUMAR JAIN
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UNION OF INDIA A v. SANJA Y KUMAR JAIN AUGUST I I, 2004 [ARIJIT PASAYAT AND C.K. THAKKER, JJ.) B Service Law : Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; Proviso to Sub-section 2, Section 471 C Establishment Manual; Para J 89A : Appointment to higher post by promotion denied on the ground that incumbent found medically unfit-Challenge to-Allowed by Central Ad- ministrative Tribunal holding that denial of promotion on ground of physical disability amounts to discrimination-Affirmed by High Court- D On appeal, Held: In terms of Section 47(2) of the Act, promotion cannot be denied on grounds of disability-Proviso to the Section does not give unbridled power to Government to exclude any establishment from the application unless some specified circumstances exist and notification thereto issued-Since no such notification issued, denial of promotion on E ground of disability not justified. Respondent-a G roup-C employee qualified in the written test for promotion to Group-B Post and was required to undergo medical examination and viva voce test before being promoted. However, he was found medically unfit. Therefore, he was not called for viva voce F test. Respondent challenged it by filing a petition before CAT. CAT held that denial of promotion on the ground of physical disability amounts to discrimination. Appellant-Union of India challenged the order, which was dismissed by th~ High Court. Hence the 1>resent appeal. G It was contended for the appellant that the appropriate Govern- ment could exclude by notification any establishment from protection to disabled as provided under the provisions of Section 47(2). Dismissing the appeal, the Court 463 H 464 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. A HELD 1.1. Sub-!:ection (2) of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, in crystal clear terms, provides that no promotion shall be denied to a person merely on the ground of his disal?ility. Obviously, in the instant case, the respondent was not B considered for promotion on the ground that he was considered to be visually handicapped. Proviso to sub-section (2) of Section 47 of the Act only permits the appropriate Government to specify by Notification any establishment whkh may be exempted from the provisions of the Section. It does not givt~ unbridled power to the Government to exclude C any establishment from the purview of the Section, the exclusion can only be done under c~·rtain specified circumstances. The notification can be issued when the: appropriate Government, having regard to the type of work carried on in any establishment thinks it appropriate to exempt such establishment from the said provisions. The proviso does not operate in the absence of the notification. (468-E-F-G-H; 469-8) D 1.2. The normal tilnction of a proviso it to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. When one finds a proviso to a S1!ction the natural presumption is that, but for E the proviso, the enacting part of the Section would have included the subject matter of the 1~roviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of 01e main enactment and its effect is confined to thal case. It is a qualification of the preceding enactment which is F expressed in terms too general to be quite accurate. As a general rule, a proviso is added to :m enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. [469-A; D-El Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash G Chandra Yograj Sinha, !\IR (1961) SC 1596; Calcutta Tramways Co. Ltd. v. Corporation ofCalc11tta, AIR (1965) SC 1728; A.N. Sehgal & Ors. v. Raje Ram Sheoram & Ors,, AIR (1991) SC 1406; Tribhovandas Haribhai Tamboli v. Gujarat R£'venue Tribunal & Ors., AIR (1991) SC 1538; Kera/a State Housing Board & Ors. v. Ramapriya Hotels (P) Ltd. & Ors,, H (19941 5 SCC 672 and Ali MK & Ors. v. State of Kera/a & Ors,, (2003) U.O.l. v. S.K.JAIN [PASA YAT, J.] 4 SCALE 197, relied on. 465 West Derby Union v. Metropolitan Life Assurance Co., (1897) AC 647 HL; Forbes v. Git, (1922) I A.C. 256; R. v. Taunton,
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