UNION OF INDIA & ORS.versusDILEEP KUMAR SINGH

                        [2015] 2 S.C.R. 882


A                    UNION OF INDIA & ORS.

                                 v.
                      DILEEP KUMAR SINGH
B              (Civil Appeal Nos.2466-2467 of 2015)

                       FEBRUARY 26, 2015

             rr.s. THAKUR AND R. F. NARIMAN, JJ.]
c      Persons with Disabilities (Equal Opportunities,
  Protection of Rights and Full Participation) Act, 1995 -
  Proviso to s. 47 - Employee of Central Reserve Police Force
  (CRPF) permanently incapacitated - Relieved from serVice
  - Writ petition - High Court allowed the petition holding that
0
  the Notification dated 10.9.2002 issued under proviso to s.
  47 (exempting the CRPFfrom the rigours ofs.47) would be
  applicable only with reference to sub-section (2) of s. 47
  and not to the whole provision in view of the provisions uls.
E 73(3) and (4)- On appeal, held: The proviso to s.47 would
  apply to the whole provision and not to sub-section (2) thereof
  alone - The proviso cannot be interpreted with reference to
  s. 73 - A proviso does not travel beyond the provision to
  which it is a proviso - Moreover, s.47 being the leading and
F substantive provision and s. 73 being a subordinate and
  machinery provision,s. 47 will prevail - The exemption is
  based on intelligible differentia and has a rational relation
  with the object sought to be achieved i.e. "type of work"
  carried on in an establishment - Therefore, it is also not
G discriminatory - The employee was rightly relieved from
  service - Service law.

        Interpretation of Statutes - The provisions of a statute

H                               882
        UNION OF INDIA v. DILEEP KUMAR SINGH                       883


 must be read harmoniously - In case of conflict between A
 two Sections, when reconciliation thereof if not possible, it
 has to be determined as to which is leading and which is
 subordinate provision and as to which must given way to
 the other.
                                                                    B
      Allowing the appeals, the Court

      HELD: 1. One is to read Section 47 as a whole and
 being read as a whole it is clear from the proviso thereof
 that it would apply to "type of work" carried on in any            c
 establishment and would, therefore, apply to both
 dispensing with service including reduction in rank as
 well as promotion. Section 47 proviso speaks of "this
 Section". The literal rule applied to this proviso would
 make it clear that it would apply to the entire Section,           o
 for otherwise the words used would have been "this sub-
 section". [paras 12 and 21] [892-F; 893-C-D]

      2.1. It is not correct that in vie.w of s. 73(3) arid (4),
  the proviso to s. 47 is only a proviso to sus-section (2)         E
  of s. 47. T~ provisions of a statute must be read
  harmoniously' to~ther. However, if this is not possible,
  then where there ts. a conflict between two Sections,
  and the two cannot b~onciled, it ha~ to be determined
  which is the leading prov1slon a. nd which the subordinate        F
  provision, and which musfgive way to the other. In the
  present case, Section 47 is the "leading provision" and
  Section 73 is the "subordinate provision". Further,
  Section 47 is a positive and clear provision. This is
  because, Section 47 is the substantive provision                  G
· exempting the subject matter of Section 47 as a whole
  as opposed to Section 73 which is only a machinery
  provision by which notifications made under Section 47
  are to be laid before each House of Parliament. {paras
  15, 16 and 19] [893-H; 894-A-C: 896-H; 897-A-B] ··                H
884        SUPREME COURT REPORTS                [2015] 2 S.C.R.


A         Smt. Laxmi Devi v. Sethani Mukand Kanwar and Two
      Others, 1965 (1) SCR 726- relied on.

          Institute of Patent Agents & Ors. v. Joseph Lockwood,
      1894 A.C. 347; Project Blue Sky Inc. v. Australian
s     Broadcasting Authority, 153 ALR 490 - referred to.

          2.2. A proviso does not travel beyond the provision
      to which it is a proviso. Therefore, the golden rule is to
      read the whole Section, inclusive of the proviso, in such
c     manner that they mutually throw light on each other and
      result in a harmonious construction. [para 20] [897-8-C]

         Dwarka Prasad v. Dwarka Das Saraf. 1976 (1) SCR
          =
      277 (1976) 1 sec 128 - relied on.

D      3. In what facts and circumstances the Government
  exercises its discretion taking into account the type of
  work in an establishment is obviously to be guided by
  the object for which the beneficial legislation is enacted
  together with balancing the need for exempting some
E establishments from a part or the whole of the provisions
  of the Act. On a true construction, it is clear that the
  legislation has "given" the Government the power to
  exempt any establishment from the rigours of the Act
F not only qua promotion but also qua termination from
  service and reduction of rank. [para 23] [899-C-E]

      4. In view of the marginal note of Section 47 and
  Chapter VIII in which Section 47 falls, i.e. "non-
  discrimination", it is clear that the idea of Section 47 is
G not to discriminate against employees who acquire
  disability during service. It is settled law that
  discrimination cannot be viewed in the abstract - the
  doctrine of classification is an important adjunct to the
  doctrine of discrimination. It is clear, therefore, that if
H
      UNION OF INDIA v. DILEEP KUMAR SINGH                    885


there is an intelligible differentia having a rational A
relation to the object sought to be achieved, a provision
will not be held to be discriminatory. Thus, an exemption
provision is based on such a classification and
exempting any establishment from not dispensing with
service or reduction in rank or not granting promotions B
has a rational relation to the object sought to be
achieved, namely, that the "type of work" carried on in
an establishment may be such that a disabled
employee's services may have to be dispensed with and/
or promotion denied. [para 22] [898-E-H, 899-A]           C

     5. It is not correct to say that the exemption
notification dated 1Oth September, 2002 will not apply
for the reason that the accident took place prior to 2002.
The relevant date, is the date of dispensing with service D
and not the date on which the disability is incurred, for
Section 47 prohibits an establishment from dispensing
with the service of an employee who acquires disability
during his service. Since service was dispensed with
on 1•1 July, 2011 (that is long after the date of the E
exemption notification), the notification will apply. [para
25] [899-H; 900-A.S]

     6. The plea of discrimination has not been raised
before the High Court, and the plea raised before this F
Court is lacking in particulars and has to be dismissed
for this reason also. [para 28] [902-B]              ·

    Kuna/ Singh v. Union oflndia &Anr. 2003 (1) SCR 1059
= (2003) 4 SCC 524- distinguished.                       .G

   United India Insurance Co. Ltd. v. Lehru & Ors. 2003 (2)
         =
SCR 495 (2003) 3 SCC 338 - held inapplicable.

    Mohd. Shahabuddin v. State of Bihar & Ors., 2010 (3) H
886         SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A     SCR 911   = (2010) 4 SCC 653; S.R. Bommai v. Union of
                               =
      India 1994 (2) SCR 644 (1994) 3 sec 1 - cited.

                         Case Law Reference

         2010 (3) SCR 911        cited                 para 6
B
         1994 (2) SCR 644        cited                 para 6

         1894A.C. 347            referred to           para 16

c        153ALR 490              referred to           para 17

         1965 (1) SCR 726        relied on             para 18

         1976 (1) SCR 277        relied on             para 20

D        2003 (2) SCR 495        held inapplicable     para 23

         2003 (1) SCR 1059       distinguished         para 24

         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      2466-2467 of 2015
E
           From the Judgment and Order dated 08.01.2014 of the
      High Court of Judicature at Allahabad in Civil Misc. Writ
      Petition No. 42101 of 2011 with Civil Misc. Writ Petition No.
      30278 of 2004.
F
         P. S. Patwalia, B. B. Sawhney, Natasha Vinayak, Tushar
      Bakshi, Sushma Suri for the Appellants.

      Mahabir Singh, Ayush Chaudharu, Gautam Awasthi for
G the Respondent.

          The Judgment of the Court was. delivered by

          R.F.NARIMAN, J. 1.Leave granted.

H         2. These appeals raise an interesting question as to the
      UNION OF INDIA v. DILEEP KUMAR SINGH                       887
                 [R.F.NARIMAN, J.]

interpretation of a proviso contained in Section 47 of the A
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (in short the "1995
Act").

    3. The facts giving rise to these appeals are as follows:-    B

     On 1•1 January, 1998, the respondent was enlisted in
the CRPF as Assistant Commandant. While on duty, on 19th
October, 2001, he sustained grievous injuries in his spinal
cord and legs while he was out on a visit checking night c
guards. Thereafter, he was provided with specialized
treatment in various hospitals, but nothing worked and,
ultimately, a medical board in its report dated 22"d July, 2004
categorized the respondent as PEE-5, i.e., a person who is
permanently incapacitated and stated that he has 100% o
disability and recommended that he be relieved from service
on medical grounds. On 27th October, 2004, a show cause
notice was served on the respondent along with a copy of
the report of the medical board with a direction to submit his
representation, if any, against the proposed invalidation from E
service on medical grounds. Instead of representing against
the show cause notice, the respondent filed writ petition
No.30278/2004 challenging the said show cause notice. By.
an interim order passed on 19th January, 2005, the appellants
were directed not to pass any order pursuant to the report F
given by the medical board against the respondent.

    4. Pursuant to an order modifying the stay application,
by an order dated 1st July, 2011,the respondent was relieved
from service and given invalidation pension as admissible G
under Rule 38 of the CCS (Pension) Rules of 1972. The
respondent filed a second writ petition No.42101 of 2011
challenging the aforesaid order.

    5. By the impugned judgment dated 8th January, 2014,          H
888       SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A   the Allahabad High Court held on a construction of Section
  · 4 7 of the said Act that a Notification dated 10'" September,
    2002 issued under Section 47 insofar as the CRPF is
    concerned, (exempting the CRPF from the rigours of Section
    47) would have to be read with reference to the field occupied
B by Section 47(2) only. Thus, the High Court made it clear
    that the exemption provision would apply only to promotion
    and not to continuing the respondent in service. As a
    consequence, the order dated 1•1 July, 2011, was set aside
    and the Union was directed to treat the petitioner in service
C and to adjust him against any suitable post or against a
    supernumerary post until a suitable post is available or until
    he attains the age of superannuation, whichever is earlier.

       6. Mr. .P.S. Patwalia, learned Additional Solicitor General,
D appearing on behalf of the Union of India has placed the
   1995 Act before us. He referred to Section 33, Section 47
  and Section 73 and submitted that the penultimate proviso
  to Section 47 would apply to the entire Section and not merely
  to sub-section (2) thereof as is clear from the language of
E the proviso which uses the words "this Section" and not "this
  sub-section". He further submitted that since there is no ·
  ambiguity in the provision, no resort can be taken to Section
  73(3) and 73(4) which refers to the proviso in Section 47 as·
F "the proviso to sub-section (?) of Section 47". He further
  submitted that the scheme of the Act would be disturbed by
  the impugned judgment inasmuch as Section 33 and Section
  47 cover the same ground - Section 33 being applicable
  pre-appointment and Section 47 being applicable after
G appointment. He cited Mohd. Shahabuddin v. State of
  Bihar & Ors., (2010) 4 SCC 653 at paragraph 179, which
  judgment refers to the literal rule of construction and S.R.
  Bommai v. Union of India, (1994) 3 SCC 1 at paragraphs
  238 and 239, for the proposition that courts cannot supply a
H cassus omissus.
       UNION OF INDIA v. DILEEP KUMAR SINGH                      889
                 [R.F.NARIMAN, J.]

     7. Mr. Mahabir Singh, learned senior counsel for the A
respondent, has argued before us that the impugned
judgment is correct inasmuch as the 1995 Act is a beneficial
legislation meant to help disabled persons and an expansive
construction is, therefore, in order.
                                                                  B
     8. He argued that Sections 47 and 73 have to be
harmoniously construed and so cbnstrued, Section 73 throws
light on Section 4 7 and makes the proviso apply only to sub-
section (2) thereof. He argued that in no circumstance can a
disabled person, once he acquires a disability during his C
service, be terminated as it would go against the purpose of
the Act. Further, he argued that the exemption notification
dated 1Olh September, 2002 would not apply on facts as the
disability was incurred prior to the notification. He also argued
that there was discrimination against the respondent in that D
 others with disabilities did not get their service terminated.

    9. We have heard learned counsel for the parties. The
Preamble of the 1995 Act states as follows:-
                                                                  E
    "An Act to give effect to the Proclamation on the Full
    Participation and Equality of the People with Disabilities
    in the Asian and Pacific Region

    Whereas the Meeting to Launch the Asian and Pacific F
    Decade of Disabled Persons 1993-2002 convened by
    the Economic and Social Commission for Asia and
    Pacific held at Beijing on 1st to 5th December, 1992,
    adopted the Proclamation on the Full Participation and
    Equality of People with Disabilities in the Asian and G
    Pacific Region;

    And Whereas India is a signatory to the said
    Proclamation;

    And Whereas it is considered necessary to implement H
890       SUPREME COURT REPORTS                    [2015) 2 S.C.R.


A        the Proclamation aforesaid."

          10. Sections 33, 47 and 73(3) & (4) are set out
      hereinbelow:

         "33. Reservation of posts.-Every appropriate
B
         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
c        from-

         (1) blindness or low vision;
         (ii) hearing impairment;

o        (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
E        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. •

F        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:

G        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:

H        Provided further that if it is not possible to. adjust the
   UNION OF INDIA v. DILEEP KUMAR SINGH                  891
              [R.F.NARIMAN, J.)

employee against any post, he· may be kept on a 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    B
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 C
 conditions, if any, as may be specified in such
 notific~tion, exempt any establishment from the
 provisions of this section.

 73. Power of appropriate Government to make
                                                          D
 rules.-

  (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, E
  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 F
  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 G
  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 H
892       SUPREME COURT REPORTS                  (2015] 2 S.C.R.


A       prejudice to 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
B       (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
C       Legislature, where it consists of two Houses or where
        such legislature consists of one House before that
        House."

        11. There is no doubt whatsoever that Mr. Mahabir Singh
D is right in saying that this is a beneficial legislation passed
  pursuant to a proclamation on the full participation and
  equality of people with disabilities in the Asian and Pacific
  region to which India is a signatory. However, we find that
  for the reasons given hereinafter the impugned judgment
E cannot be sustained.

        12. It will be noticed that Section 47 proviso speaks of
  "thi.s Section". The literal rule applied to this proviso would
  make it clear that it would apply to the entire Section, for
F otherwise the words used would have been "this sub-section".
  Quite apart from this, the language of this proviso is similar
  to the language of the proviso contained in Section 33. Both
  provisions speak of an exemption being granted having
  regard to the "type of work" carried on in any establishment.
G It is clear that given the "type of work" carried on by the
  armed forces or the CRPF before us, persons who have
  disabilities may not have any reservation for them at all pre-
  appointment, if exempted, for the simple reason that persons
  suffering with disabilities (which as defined under Section
H 2(t) means a person suffering from not less than 40% of any
       UNION OF INDIA v. DILEEP KUMAR SINGH                       893
                  [R.F.NARIMAN, J.]

disability as certified by a medical authority) may be persons A
wholly unfit for service required in the defence of the country.
It is obvious that, if at the appointment stage, persons with
disabilities need not have vacancies in posts reserved for
them, equally after suffering a disability during service, a
person may for the self-same reason not be able to perform B
what is required of him in the defence of the nation, thereby
justifying his discharge from service.

    13. The context of the provision is "type of work".· It is
clear that given this context, there is no rationale for C
exemption so far as "promotion" is concerned but no
exemption so far as "dispensation" is concerned.

     14. One argument that weighed with the High Court was
that under the second proviso to sub-section (1), if it is not o
possible to adjust the employee against any post, he may
be kept on a supernumerary post. From this it was sought
to be inferred that under no circumstance can an employee
who acquires disability during his service have his service
dispensed with. This reasoning is fallacious for the reason E
that sub-section (1) deals with dispensing with service as
well as reduction in rank.· The argument that an employee's
services can never be dispensed with under Section 47(1)
having due regard to the second proviso thereof fails to take
into account that there is no such requirement as far as F
reduction in rank is concerned. If an exemption can be given
so far as reduction in rank is concerned, then there is no
reason why such exemption cannot be given so far as
dispensing with service is concerned, as both are contained
in Section 47(1) of the Act.                                   G

     15. We now come to what appealed to the High Court
and was argued most vehemently before us. It was stated
that Section 73(3) & (4) made it clear that the proviso is only
a proviso to sub-section (2) of Section 47 and that therefore      H
894        SUPREME COURT REPORTS                    [2015) 2 S.C.R.


A it must be read only as such. To this again there are two
  answers.

       16. It is well settled that the provisions of a statute must
  be read harmoniously together. However, if this is not
B possible then it is setiled law that where there is a conflict
  between two Sections, and you cannot reconcile the two,
  you have to determine which is the leading provision and
  which the subordinate provision, and which must give way
  to the other. This statement of the law is to be found in
C Institute of Patent Agents & Ors. v. Joseph Lockwood,
  1894 A.C. 347 at 360. Lord Herschell, LC., stated this, as
  follows:-

          "Well, there is a conflict sometimes between two sections
o         to be found in the same Act. You have to try and reconcile
          them as best you may. If you cannot, you have to
          determine which is the leading provision and which the
          subordinate provision, and which must give way to the
          other."
E
           17. This Judgment has been subsequently followed by
      the High Court of Australia in Project Blue Sky Inc. v.
      Australian Broadcasting Authority, 153 ALR 490, in the
      following terms:
F
             "A legislative instrument must be construed on the
          prima facie basis that its provisions are intended to give
          effect to harmonious goals. Where conflict appears to
          arise from the language of particular provisions, the
G         conflict must be alleviated, so far as possible, by
          adjusting the meaning of the competing provisions to
          achieve that result which will best give effect to the
          purpose and language of those provisions while
          maintaining the unity of all the statutory provisions.
H         Reconciling conflict provisions will often require the court
       UNION OF INDIA v. DILEEP KUMAR SINGH                    895
                  [R.F.NARIMAN, J.)

    "to determine which is the leading provision and which A
    the subordinate provision, and which must give way to
    the other". Only by determining the hierarchy of the
    provisions will it be possible in many cases to give each
    provision the meaning which best gives effect to its
    purpose and language while maintaining the unity of the B
    statutory scheme." (at pages 509-510)



    18. Under similar circumstances, in Smt. Laxmi Devi v. C
Sethani Mukand Kanwar and Two Others, 1965 (1) SCR
726, a question arose as to how one. would harmonise
Section 2(d} with Section 5 of the Transfer of Property Act.
The effect of Section 2(d), which is a saving clause, is that
the provisions of the Transfer of Property Act will apply to     o
transfers by operation of law. Whereas Section 5 of the
Transfer of Property Act defines transfer of property as
intended to take in transfers effected by acts of parties.
Auction sales, being transfers effected by operation of law
would, therefore, be within the purview of Section 100 (latter E
part) read with Section 2(d). (Section 100 provides that no
charge shall be enforced against any property in the hands
of a person to whom such property has been transferred for
consideration and without notice of the charge.) Section
2(d) was held to prevail over Section 5 because it is a "positive F
provision" which is "clear". This Court held:

    "This position, however, has become somewhat
    complicated by reason of the provisions contained .in
    s.5 of the Transfer of Property Act. Section 5 provides, G
    inter alia, that in the following sections "transfer of
    property" means an act by which a living person conveys
    property, in present or in future, to one or more other
    living persons. In other words, in terms, the definition of
    the expression "transfer of property" as used in all the H
896      SUPREME COURT REPORTS .                   [2015] 2 S.C.R.


A       sections of the Transfer of Property Act is intended to
        take in transfers effected by acts of parties inter vivos,
        and an auction-sale clearly is not such an act. Section 5
        would, therefore, appear to exclude auction sales from
        the purview of s.100 altogether. This result would appear
B       to be consistent with the provision in the preamble of
        the Act which says that the Transfer of Property Act was
        enacted because it was thought expedient to define and
        amend certain parts of the law relating to the transfer of
        property by act of parties. That is the position which
c       emerges from the reading of s.5 coupled with the
        preamble; and that naturally raises the question as to
        how to reconcile these two inconsistent positions.

        In our opinion, the positive provision contained ins. 2(d)
D       must prevail over the definition of "transfer of property"
        prescribed by s.5. No doubt, the purpose of the definition
        is to indicate the class of transfers to which the provisions
        of the Transfer of Property Act are intended to be applied;
        but a definition of this kind cannot over-ride the clear
E       and positive direction contained in the specific words
        used bys. 2(d). As we have already seen, the result of
        the saving clause enacted by s. 2(d) is to emphasise
        the fact that the provisions of 1).57 and those contained
        in Chapter JV must apply to transfer by operation of law.
F
        Such a positive provision cannot be made to yield to
        what may appear to be the effect of the definition
        prescribed by s.5, and so, we are inclined to hold that
        notwithstanding the definition prescribed by s.5, the latter
G       part of s.100 must be deemed to include auction sales."
        (at page 733)

       19. A reference to these two judgments makes it clear
  that Section 47 is the "leading provision" and Section 73 is
H the "subordinate provision". Further, Section 47 is a positive
      UNION OF INDIA v. DILEEP KUMAR SINGH                    897
                [R.F.NARIMAN, J.]

and clear provision. This is because, Section 47 is the A
substantive provision exempting the subject matter of Section
47 as a whole as opposed to Section 73 which is only a
machinery provision by which notifications made under
Section 47 are to be laid before each House of Parliament.
                                                                  B
     20. Equally, it is settled law that a proviso does not travel
beyond the provision to which it is a proviso. Therefore, the
golden rule is to read the whole Section, inclusive of the
proviso, in sucli manner that they mutually throw light on
each other and result in a harmonious construction. This is C
laid down in Dwarka Prasad v. Dwarka Das Saraf, (1976)
1 sec 128, as follows:-

    "18. We may mention in fairness to Counsel that the'
    following, among other decisions, were cited at the Bar       o
    bearing on the uses of provisos in statutes: C/Tv.lndo-
    Mercantile Bank Ltd, [Al R 1959 SC 713 : 1959 Supp (2)
    SCR 256, 266 : (1959) 36 ITR 1] ; Ram Narain Sons
    Ltd. v. Asstt. CST [AIR 1955 SC 765 : (1955) 2 SCR
    483, 493 : (1955) 6 STC 627] .; Thompson v. Dibdin            E
    [(1912)AC533,541 :81 LJKB918:28TLR490];Rex
    v. Dibdin [1910 Pro Div 57, 119, 125] and TahsildarSingh
    v.State ofU.P. [AIR 1959 SC 1012: 1959 Supp (2) SCR
    875, 893 : 1959 Cri LJ 1231] . The law is trite. A proviso
    must be limited to the subject-matter of the enacting         F
    clause. It is a settled rule of construction that a proviso
    must prima facie be rear! and considered in relation to
    the principal matter to which it is a proviso. It is not a
    separate or independent enactment. "Words are
    dependent on the principal enacting words to which they       G
    are tacked as a proviso. They cannot be read as divorced
    from their context" (Thompson v. Dibdin, 1912AC 533).
    If the rule of construction is that prima facie a proviso
    should be limited in its operation to the subject-matter      H
898         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A         of the enacting clause, the stand we have taken is sound.
          To expand the enacting clause, inflated by the proviso,
          sins against the fundamental rule of construction that a
          proviso must be considered in relation to the principal
          matter to which it stands as a proviso. A proviso ordinarily
B         is but a proviso, although the golden rule is to read the
          whole section, inclusive of the proviso, in such manner
          that they mutually throw light on each other and result
          in a harmonious construction."

c          21. Viewed at in this light also, one is to read Section 47
      as a whole and being read as a whole it is clear from the
      proviso that it would apply to "type of work" carried on in any
      establishment and would, therefore, apply to both dispensing
      with service including reduction in rank as well as promotion.
D
           22. Another interesting facet is brought out by the
      marginal note of Section 47 and Chapter VII I in which Section
      47 falls. Chapter VIII has as its heading "non-discrimination".
      Equally, the marginal note of Section 47 is "non-discrimination
E     in government employments". It is clear that the idea of
      Section 47 is not to discriminate against employees who
      acquire disability during service. It is settled law that
      discrimination cannot be viewed in the abstract- the doctrine
      of classification is an important adjunct to the doctrine of
F     discrimination. It is clear, therefore, that if there is an
      intelligible differentia having a rational relation to the object
      sought to be achieved, a provision will not be held to be
      discriminatory. It is clear that an exemption provision is based
      on such a classification and exempting any establishment
G     from not dispensing with service or reduction in rank or not
      granting promotions has a rational relation to the object
      sought to be achieved, namely, that the "type of work" carried
      on in an establishment may be such that a disabled
H     employee's services may have to be dispensed with and/or
       UNION OF INDIA v. DI LEEP KUMAR SINGH                  899
                 [R.F.NARIMAN, J.]

promotion denied.                                               A

    23. Shri Mahabir Singh cited United India Insurance
Co. Ltd. v. Lehru & Ors., (2003) 3 SCC 338 at page 345 for
the proposition that in a beneficial legislation what the
legislature gives for the benefit of those covered by it, the B
court cannot take away. We are of the view that this authority
will not apply for the basic reason that we are construing an
exemption provision in a beneficial legislation. We have
already held that the exemption provision will cover the
entirety of the field of Section 47. In what facts and C
circumstances the Government exercises its discretion taking
into account the type of work in an establishment is obviously
to be guided by the object for which the beneficial. legislation
is enacted together with balancing the need for exempting
some establishments from a part or the whole of the D
provisions of the Act. On a true construction, it is clear that
the legislation has "given" the Government the power to
exempt any establishment from the rigours of the Act not
only qua promotion but also qua termination from service
and reduction of rank as has been held above.                    E

    24. Learned counsel also cited before us Kunal Singh
v. Union of India & Anr., (2003) 4 SCC 524. This judgment
decided that the benefit of Section 47 would be available to
a person as an additional benefit even though he may get F
certain other benefits under the service Rules applicable to
him. No question as to the proviso to Section 47 arose before
the court in that case and for the purposes of the present
controversy, the ratio of that decision wil( have little or no
bearing.                                                       G

    25. We now come to two other contentions raised by
Mr. Mahabir Singh. According to him, the exemption
notification dated 1Qth September, 2002 will not apply for the
reason that the accident took place prior to 2002. It is clear H
900         SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A that the exemption notification will apply to all cases in which
  an employee's services are dispensed with. The relevant
  date, therefore, is the date of dispensing with service and
  not the date on which the disability is incurred, for Section
  47 prohibits an establishment from dispensing with the
B service of an employee who acquires disability during his
  service. Since service was dispensed with on 1•1 July, 2011
  (that is long after the date of the exemption notification), the
  notification will, obviously, apply.

c          26. The plea of discrimination sought to be made by Mr.
      Mahabir Singh is based on an averment made in the reply
      affidavit on behalf of the petitioner (respondent herein) in
      the Supreme Court. The averment is as follows:

D            "Further the contention of the petitioners that the
          disabled persons are not being retained in service is
          absolutely wrong because the persons disabled due to
          militant action etc. are retained and not being invalidated
          from service in accordance to Para 9(a)(i) of Standing
E         Order No.7/99 of CRPF. Many disabled persons has
          been retained or re-instated in CRPF and other armed
          forces after enactment of the Act of 1995 and
          amendment of rule 20(2) of the C.C.S. (Leave) Rules
          1972 as well as the judgment passed by this Honorable
F         Court reported in 2003(2) ESC (SC) Kunal Singh Vs.
          U.0.1.. Even the CRPF itself has retained such disabled
          officer Shri Pratap Singh, Deputy Commandant till
          superannuation and retained Shri Y.N. Ray and Sameer
          Sh~astava who became disabled in the rank of
G         Assistant Commandant and granted regular promotion
          and at present they are Commandant. Two other officers
          Sh. R.K. Singh and Sh. P.R. Mishra have also been
          retained in service despite their disability. Similarly the
          B.S.F. also has not only retained Shri Surinder Singh
H
       UNION OF INDIA v. DILEEP KUMAR SINGH                       901
                  [R.F.NARIMAN, J.]

    but had promoted him up to his present rank of Second A
    in Command. The Indian Army has retained similarly
    wheel chair bound physically disabled (paraplegic)
    Officer S.K. Rajdan and promoted him to the rank of
    Major General and Indian Air Force also retained its
    wheel chair bound disabled (paraplegic) trainee cadet B
    Harjot Singh."

    27. In the rejoinder affidavit filed by the appellants this
averment is denied in the following terms:-
                                                                   c
       "The contents of para 5 (G-H) of reply are wrong,
    misconceived and hence denied. It is submitted that
    Central Para Military forces perform a critical role in
    maintaining internal security and guarding of national
    borders. By very nature, the job requirements are D
    "technical' in nature requiring a high level of physical
    fitness and abilities. CRPF is exempted from the
    provisions of Section 4 7 of the Act. The Respondent
    does not come within the purview of Standing Order 71
    99 and has been declared 100% permanently E
    incapacitated for further service, he was dealt as per
    procedure laid down in Section VIII of CRPF medical
    manual. There is difference between NOT FIT FOR
    NORMAL ACTIVE DUTY AND 100% PERMANENT.
    INCAPACITATION FOR FURTHER SERVICE. Since F
    the Respondent comes under second category, he was
    dealt with as per procedure laid down in section VIII of
    CRPF Medical Manual. However, it is respectfully
    submitted that full Bench decision of Allahabad High
    Court in the case of Union of India Vs. Mohd. Yasin G
    Ansari ((2006) 3 UPBEBC 2508] has held that a person
    in the armed forces even with lower degree of disability
    cannot be retained in services."

    28. Apart from the plea of the disabled officers mentioned     H
902         SUPREME COURT REPORTS               [2015) 2 S.C.R.


A being vague, for no particulars are given as to the extent of
  their disability, the Union has made it clear that Standing
  Order No. 7 /99 will not apply and that since the job
  requirements demand a high level of fitness and ability CRPF
  is exempted from the provisions of Section 47 of the Act.
B Not only has this plea not been raised before the High Court,
  but the plea raised before us is lacking in particulars and
  has to be dismissed for this reason also.

       29. We make it clear that the respondent, who has been
C occupying official accommodation, will vacate such
  accommodation by 30 111 June, 2015. Mr. Patwalia has assured
  us that, given the facts of this case, no penal charges will be
  collected from him till the date on which he vacates the said
  accommodation.
D
       30. The appeals are, therefore, allowed. The judgment
  of the Allahabad High Court is set aside. There will be no
  order as to costs.

E     Kalpana K. Tripathy                         Appeal allowed.