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 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 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)
JUDGE
December 17, 2007
nsk
Reportable

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