# Dileep Kumar Singh v. Union of India & Ors

- **Citation:** (2014) 2 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-23
- **Case number:** Civil Misc. Writ Petition No. 42101 of 2011
- **Bench:** Arun Tandon, Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dileep-kumar-singh-v-union-of-india-ors-42970
- **Pages:** 7

## Headnote

protection of Right of full participation)-Act
1995-Section-47(1) and (2)-Boarding out
from
service-in
garb
of
notificationproviding exemption from applicabilityheld-illegal- denial of rights-not only unjust
and unfair but graver problems to societynotification is to be read in lights of
statutory provisions of Section 47(1) and
(2) of Act-consequential direction given.

Held: Para-33
In view of the aforesaid, we held that
the boarding out of the petitioner under
the order impugned with invalidation
pension cannot
be
sustained,
it is
therefore
quashed.
The
respondent
establishment is directed to treat the
petitioner in the service and to adjust
him against any suitable post or against
a supernumerary post, until a suitable
post is available or till he attains the age
of superannuation, whichever is earlier.

Case Law discussed:
2004(6) SCC Page 4; AIR 2010 (SC) Page
1253; 2008(1) SC Page 75; AIR (SC) 1975
page 1758; 2004(6) SCC page 708; 2013 (6)
ADJ page 276; 2010(8) ADJ page 280;
2011(1) UPLBEC page 774.

## Text

2 All] Dileep Kumar Singh Vs. Union of India & Ors.
759
Tehsildar to make an entry for issuing every
certificate is not borne out from the procedure
prescribed for issuing such certificate. Sri
Ramesh Upadhyay submits that there was no
need to issue any specific Government Order,
providing that record should be kept for
issuing certificate inasmuch as "System of
Record, Files and Registers Relating to
Correspondence" in the U.P. Revenue Manual
provides for maintenance of records for every
document issued by Revenue Officer in the
State of U.P. As the Tehsildar has been
authorised to issue caste certificate, he is
required to maintain the records of every file
in accordance with Rules 54 to 59 of Chapter
III of U.P. Revenue Manual. All enquiries
with regard to issuance of caste certificate can
be made from the records maintained by the
concerned Tehsildar. He further submits that
the Government is now trying to simplify the
procedure of issuing caste certificate, income
certificate and residence certificate through elegalix system from the Common Service
Centre (Jan Sevak Kendra). The applicants
under
the
Government
Order
dated
27.11.2010, are to be provided a prescribed
format at the Common Service Centre. The
Centre operator will fill up the details in the eform. A print out of entries made in the e-form
will be given to the applicant, on which the
applicant may sign which will be scanned and
a print out of the same with unique number
will be given to him as acknowledgement
receipt. The Tehsildar will examine the eform, and will make necessary enquiries
through concerned Lekhpal and Revenue
Inspector with regard to his/her caste, by
making physical inspection of which reports
will be prepared and sent to the Tehsildar
within one week. After the Tehsildar is
satisfied with the enquiry, with regard to caste
of the person, the authorized representative or
CCS will issue the caste certificate to the
concerned person. It can also be examined at
any time from the data stored in the computer.
Sri Upadhyay submits that now a fair,
transparent and simplified procedure has been
evolved, which will not cast any doubt, and
will be open to any enquiry in future for its
verification.

30. On the aforesaid discussion, we
also answer the question No.2 in negative,
and hold that the judgment dated
23.12.2011, rendered by the Lucknow
Bench of the Court in State of Vs. Vijay
Shankar and another - Writ Petition
(Service Bench) No. 2080 of 2011, is not
correct in law.

31. In view of the aforesaid findings
and answers given to the questions
referred to us, we do not propose to send
the matter back to the Division Bench, as
we do not find that any relief can be
granted to the petitioner for issuing caste
certificate to his son, to belong to
Scheduled Caste on the basis of judgment
in State of U.P. Vs. Vijay Shankar and
another (Supra).

32. The writ petition stands
dismissed with no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 42101 of 2011
alongwith 30278 of 2004

Dileep Kumar Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhoopendra Nath Singh
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
S.S.C., Sri Ajay Singh, Sri K.C. Sinha
Sri Rakesh Sinha.

Persons with Disabilities(Equal opportunity
protection of Right of full participation)-Act
1995-Section-47(1) and (2)-Boarding out
from
service-in
garb
of
notificationproviding exemption from applicabilityheld-illegal- denial of rights-not only unjust
and unfair but graver problems to societynotification is to be read in lights of
statutory provisions of Section 47(1) and
(2) of Act-consequential direction given.

Held: Para-33
In view of the aforesaid, we held that
the boarding out of the petitioner under
the order impugned with invalidation
pension cannot
be
sustained,
it is
therefore
quashed.
The
respondent
establishment is directed to treat the
petitioner in the service and to adjust
him against any suitable post or against
a supernumerary post, until a suitable
post is available or till he attains the age
of superannuation, whichever is earlier.

Case Law discussed:
2004(6) SCC Page 4; AIR 2010 (SC) Page
1253; 2008(1) SC Page 75; AIR (SC) 1975
page 1758; 2004(6) SCC page 708; 2013 (6)
ADJ page 276; 2010(8) ADJ page 280;
2011(1) UPLBEC page 774.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
parties.

2. Petitioner Sri Dilleep Kumar
Singh
was
employed
as
Assistant
Commandant in Central Reserve Police
Force. The petitioner sustained injuries in
his spinal cord and major fracture in both
foot due to fall from roof top of Quarter
Guarding during checking night guard.

3. He has been confined to wheelchair
for last several years. Under an interim order
passed in the connected Writ Petition No.
30278 of 2004 filed against the proposal to
board out from service, he was allowed to
serve upto 24.05.2011, i.e, when the interim
order was vacated permitting the respondent
Central Reserve Police Force to take
appropriate final decision in the matter. The
Deputy
Inspector
General
of
Police
(Personnel) by an order in the name of
President of India has taken a decision qua
the
petitioner
with
reference
to
the
Notification dated 10.9.2002 issued under
Section
33/47
of
the
Persons
with
Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995
(hereinafter referred to as the 'Act-1995') to
board out the petitioner on invalidation
pension.

4. This order of Deputy Inspector
General of Police (Personnel) is under
challenged in the connected second writ
petition No. 42011 of 2011.

5. The short controversy involved in
the
petitions
is
confined
to
the
interpretation of the Proviso to Section 47
of the Act, 1995 and the scope of
Notification dated 10.9.2002.

6. We may record that the injury had
been suffered by the petitioner rendering him
invalid on 11.10.2001. On the relevant date
no Notification under Section 33/47 had been
issued qua Central Reserve Police Force.
However, the invalidation medical certificate
was issued in favour of the petitioner only on
13.09.2002 The petitioner had suffered 100%
disability. On the date the invalidation
certificate was issued the Notification dated
10.9.2002 under Section 33/47 had seen light
of the day.

7. For the controversy involved it
would be appropriate to refer to Section
2 All] Dileep Kumar Singh Vs. Union of India & Ors.
761
33 as well as Section 47 of the Act, 1995
which read as follows :

"33. Reservation of posts.- Every
appropriate Government shall appoint in
every establishment such percentage of
vacancies not less than three per cent. for
persons or class of persons with disability
of which one per cent each shall be
reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral
palsy,

in the posts identified for each
disability:

Provided
that
the
appropriate
Government may, having regard to the
type of work carried on in any department
or establishment, by notification subject
to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this
section.

"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 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 he
specified in such notification, exempt any
establishment from the provisions of this
section."

8. The Apex Court in the case of
Union of India Versus Devendra Kumar
Pant & Others, reported in AIR 2010(SC)
page 1253 para 14 has explained, that
Section 33 of Act 1995 deals with
reservation of posts for persons with
disability. Sections 32 and 33 of Act,
1995 therefore apply to pre- employment
situation, that is where persons with
disability are yet to secure employment.
While Section 47 applies to an employee
who is already in employment and who
acquires a disability during his service.
Sub-section (1) of Section 47 provides for
protection
to
the
employees
in
government
service
who
acquire
a
disability during service in following
manner (a) their service shall not be
dispensed with nor he shall be reduced in
rank on the ground that he acquired a
disability during service; and (b) if an
employee who acquires a disability during
service is not suitable for the post he was
holding, he has to be shifted to some other
post with same pay scale and service
benefits, and (c) if it is not possible to
adjust the employee against any such
post, the employee has to be kept on a
762 INDIAN LAW REPORTS ALLAHABAD SERIES
supernumerary post until a suitable post is
available or until he attains the age of
superannuation whichever is earlier.

9. Section 47(2) of Act, 1995 take care
of promotion of such invalidated employee
and provides that he shall not be denied
promotion merely on the ground that he
suffers from the disability. Proviso to Section
47(2) of the Act, 1995 confers a power upon
the Central Government having regard to the
type of work carried to exempt an
establishment from the applicability of the
said Section. With reference to this Proviso
to Section 47(2) of the Act, 1995 that the
Central Govt. vide Notification dated
10.9.2002 excepted all categories of posts of
"combatant personnel" only, of the Central
Para Military Forces ( CPMFs), namely,
Central Reserve Police Force ( CRPF),
Border Security Force (BSF). Into Tibetan
Border Police (ITBP) Central Industrial
Security Force (CISF) and Assam Rifles
from the provisions of the said section.

10. The Apex Court in the case of
Union Of India vs Sanjay Kumar Jain , 2004
(6) SCC Page 4 has held that the power
under Proviso to sub-section 2 of Section 47
of the Act, 1995 does not give unbriddled
power to exclude any establishment from the
purview of Section 47 of the Act, 1995, the
exclusion can be only done under certain
specified circumstances. A Notification can
be issued only 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 provisions of section 47 of Act,
1995

11. It is with reference to this
Notification dated 10.9.2002 that the
order impugned has been issued boarding
out the petitioner on invalidation pension.

12. Sri B.N. Singh, counsel for the
petitioners submitted before us that the
Proviso to Sub-clause 2 Section 47
authorize the Central government to
exclude a particular establishment only in
the matter of promotion because of the
invalidation, the scope of this proviso
cannot be extended so as to suggest that
the establishment stands excluded from
the applicability of entire Section 47
including the restriction which is provided
for under Section 47(1) in the matter of
disengagement of an employee who
surfers disability during employment.

13. In support of his submission Sri
B.N. Singh has drawn the attention of the
Court to Section 73 (3) and 73(4) of the
Act, 1995. He submits that Act 1995 is a
social beneficial enactment dealing with
disabled persons and intended to give
them equal opportunities, protection of
rights and full participation. 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 purpose of the Act.

14. Sri B.N. Singh relies upon the
judgment of the Supreme Court in the
case of Union of India Vs. Devendra
Kumar Pant & Others reported in AIR
2010 (SC) Page 1253, Kunal Singh Vs.
Union of India & another, Bhagwan Dass
& Another Vs. Punjab State Electricity
Board, reported in 2008(1)SC page 75.

15. Sri Ashok Singh, counsel for the
respondents in reply submits that on
simple reading of the Proviso to Section
47 Act 1995 makes it clear that the
Central Government has been granted a
power to exclude an establish from the
scope of Section 47 of Act 1995 as a
whole. The word "from the provisions of
2 All] Dileep Kumar Singh Vs. Union of India & Ors.
763
this Section of the proviso on simple
reading would mean from the provisions
of entire Section 47 which would include
sub-section (1) as well as sub-Section (2)
of Section 47".

16. He explains that the Central
Government having regard to the nature
of work claimed on by Central Reserve
Police Force in exercise of powers under
Section 47, Proviso has decided to
exclude the establishment from the
provision of Section 47 in its entirety.
Therefore, the order of the competent
authority boarding out the petitioner on
invalidation pension does not violate any
of the provisions of Persons with
Disabilities
(Equal
Opportunities,
Protection of Rights and Full Participation
) Act, 1995.

17. Sri Ashok Singh, advocate has
placed reliance upon the judgments
reported in AIR (SC) 1975 page 1758 (
Dwarka Prasad Vs. Dwarka Das Saraf),
2004(6) SCC page 708 (Union of India
Vs. Sanjay Kumar Jain), 2013 (6) ADJ
page 276 ( Union of India and others Vs.
Mohd. Yasin Ansari), 2010 (8) ADJ page
280 ( Union of India and others Vs. State
of U.P. & another), 2011(1) UPLBEC
page 774 ( Dhruv Singh Yadav Vs.
Director
General
Central
Industrial
Secruity Force and others ) and Sandeep
Singh Vs. Union of India decided on
22.2.2011.

18. We have heard learned counsel
for the parties and have examined the
records of the present writ petitions.

19. Sub-Section (1) of Section 47 in
clear terms provides that there cannot be
any
discrimination
in
government
employments qua persons who suffer
disability denying service. It mandates
that no establishment shall dispense with
or reduce in rank an employee because of
the disability suffered by him during
service. To the said sub-section (1) there
are two Proviso added, the Ist Proviso
provides that, if an employee, after
acquiring disability 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. While IInd Proviso
to the same sub-section (1) provides that
if it is not possible to adjust the employee
against any suitable post, he may be kept
on a supernumerary post until a suitable
post is available or till he attains the age
of superannuation, whichever is earlier.

20. Sub-section (2) to Section 47
prohibits
denial
of
promotion only
because of disability suffered by an
employee during service. The issue up for
consideration is as to whether the proviso
added after sub-section(2) of Section 47 is
in the nature of exception from the subsection (2) only or it is in the nature of an
exception to the Section 47 itself.

21. In a meeting of launch of 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, a proclamation was
adopted on the full participation and equality
of people with disabilities in the Asia and the
Pacific region. Our country is a signatory to
the said proclamation. To give full effect to
the proclamation it was felt necessary to
enact a legislation Act, 1995 is the
manifestation of the said proclamation. The
Act 1995 has to be read in that background.

22. The disabled too are equal
citizens of the country and have as much
764 INDIAN LAW REPORTS ALLAHABAD SERIES
share in its resources as any other citizen.
The denial of their rights would not only
be unjust and unfair to them and their
families but would create larger and
graver problems for the society at large.
What the law permits to them is no
charity or largess but their right as equal
citizens of the country.

23. We are of the opinion that if the
purpose of the Act 1995 is to be given
effect to in the widest possible amplitude
being a social beneficial legislation then
every attempt must be made to read its
provision in a manner which may protect
the employment of the disabled. Effort
has to be made to see that an employee
who suffers disability during employment
is not denied his his bread and butter. Not
only the employee so disabled would
suffer by his disengagement his entire
family which is dependent upon him
would have to bear the brunt.

24. The proviso after Section 47(2)
if read as an exception to Section 47(2)
only and not as an exception to Section 47
as a whole would definitely be in tune
with fundamental purpose for which the
Act 1995 has been enacted.

25. The purpose of placing the
proviso after Section 47(2) by the
legislature
when
ascertained
with
reference
to
proclamation
of
full
participation and quality of people with
disability wold be more than obvious to
exclude the rights of consideration for
promotion of a disabled employee qua
certain establishments rather than out
boarding
the
employee
from
the
employment itself.

26. It may be noticed that under
Section 47(1) of Act, 1995 even where a
disabled employee cannot be adjusted
against any post in the establishment
because of disability, a supernumerary
post is required to be created for the
period till he can be adjusted or he attains
the age of superannuation which ever is
earlier.

27. The judgments relied upon by
the counsel for the employees deal with
applicability of proviso added after
Section 47(2) in the matter of promotion
of a disabled employee and are therefore
distinguishable.

28. We are supported in our
reasoning by the language of Section 73
sub-clause (3) and sub-clause (4) which
read as follows : -

" (3) Every notification made by the
Central Government under the proviso to
section 33, proviso to sub-section (2) of
section 47, every scheme framed by it
under section 27, section 30, sub-section
(1) of section 38, section 42, section 43,
section 67, section 68 and every rule
made by it under sub-section (1), shall be
laid, as soon as may be after it is made,
before each House of Parliament, while it
is in session for a total period of thirty
days which may be comprised in one
session or in two or more successive
sessions, and if, before the expiry of the
session immediately following the session
or the successive sessions aforesaid, both
Houses agree in making any modification
in the rule, notification or scheme, both
Houses agree that the rule, notification or
scheme should not be made, the rule,
notification or scheme shall thereafter
have effect only in such modified form or
be of no effect, as the case may be; so,
however, that any such modification or
annulment shall be without prejudice to
2 All] Udai Pratap Singh @ Sukhdeo Vs. State of U.P. & Ors.
765
the validity of anything previously done
under that rule, notification or scheme, as
the case may be.

4. Every notification made by the
State Government under the proviso to
section 33, proviso to sub-section (2) of
section 47, every scheme made by it under
section 27, section 30, sub-section (1) of
section 38, section 42, section 43, section
67, section 68 and every rule made by it
under sub-section (1), shall be laid, as
soon as may be after it is made, before
each House of State Legislature, where it
consists of two Houses or where such
legislature consists of one House before
that House."

29. From the simple reading of the
aforesaid, it is clear that legislature itself
has contemplated that Notification of
excaption has to be issued with reference
to the Proviso to sub-section(2) of Section
47 only. Therefore Notification for
excaption of the establishment has to be
with regard to what is covered by subsection (2) of Section 47 and not the
entire Section 47.

30. It may also be seen that while
Section 73(3) and Section 73(4) of the
Act, 1995 talk of Notification to be issued
under Proviso to Section 33 they refers to
a Notification to be issued under Proviso
to sub-section (2) of Section 47 only.

31. For the reasons recorded by us
herein above, we record that the Notification
dated 10.9.2002 issued under Section 73(2)
by the Central Government is necessarily to
be read with reference to the field occupied
by sub-section(2) of Section 47 only.
Therefore the Notification dated 10.9.2002 as
exempts the CRPF from the restriction
imposed in the matter of denial of
promotion to disabled employees only.

32. With the help of such
Notification the respondent establishment
could not have boarded out the petitioner
with disability pension.

33. In view of the aforesaid, we held
that the boarding out of the petitioner under
the order impugned with invalidation
pension cannot be sustained, it is therefore
quashed. The respondent establishment is
directed to treat the petitioner in the service
and to adjust him against any suitable post or
against a supernumerary post, until a suitable
post is available or till he attains the age of
superannuation, whichever is earlier.

34. It is needless to the record that the
petitioner shall be entitled for full salary and
consequential benefit of service.

35. The writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 43886 of 2004

Udai Pratap Singh @ Sukhdeo Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri N.K. Saxena, Sri Deepak Saxena
Sri Ram Kishor Gupta

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-311(2)-
Dismissal from Service-on ground of