2023 INSC 914 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 6785 OF 2023

[@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 12671 OF 2022]

MOHAMED IBRAHIM …APPELLANT(S)

VERSUS

THE CHAIRMAN & MANAGING

DIRECTOR & ORS. …RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1.Leave granted. With consent the appeal was heard finally. The appellant

is aggrieved by a judgment of the Madras High Court

1

, which dismissed his

petition, claiming arbitrariness in the declining of his candidature as Assistant

Engineer (hereafter “AE”) (Electrical) by the Tamil Nadu Generation and

Distribution Corporation Limited- (hereafter referred to as TANGEDCO or

“Corporation” or “employer” variously), on the ground that he was colour

blind. It is undeniable that he had completed the graduate degree course in

electrical engineering, had also qualified in the recruitment process, and was

selected for the post of AE.

1 WA (MD) No. 1506/2021 dt. 30.7.2021.

2

2.The brief facts of this case are that the appellant was appointed as

Assistant Engineer (Electrical) by the Superintendent’s Office, Karur in

2015

2

and he joined the services on 31.3.2017

3

. The corporation informed

4

the

appellant about his selection and asked him to report to office of the

Superintendent, Karur on 15.04.2017. Later, he was asked to produce a

Physical Fitness Certificate from the Senior Civil Surgeon Government

Hospital, Kumbakonam after medical examination. After the examination, the

appellant was informed that he had colour defective vision (colour blindness).

By outpatient receipt (dated 15.04.2017) he was referred to Assistant Surgeon,

Govt. Hospital, Musiri, Trichy District. The Asst. Surgeon confirmed that he

had colour blindness and referred him to the Medical Board/ Ophthalmology

department of MGM Trichy. The Superintendent’s Office at Karur wrote letter

dated 31.10.2017 to the Medical Board, Thanjavur Medical College Hospital,

requesting the appellant’s medical examination and a report based on that

examination. The Regional Medical Board (hereafter “RMB”) asked the

appellant to appear for medical examination; he was told by the medical officer

that the report would be forwarded to the corporation. A report dated

23.02.2018

5

, from RMB, Thanjavur was sent to the respondent, stating that: " ....

Fitness cannot be given for the patient since norms regarding colour vision not

provided by the employer (TNEB)".

3.Aggrieved, appellant approached the Madras High Court, which by order

dated 11.03.2019

6

directed the employer to decide the case in accordance with

the RMB Report. The Medical Board, Thanjavur issued Report dated

05.07.2019 for the persons with Disabilities in consideration of the appellant’s

case. Subsequently, the corporation’s office sent a letter, cancelling the

2 A notification No. 01/15 dated 28.12.2015 was published for direct recruitment to the posts of Assistant

Engineer (Electrical), Assistant Engineer (Mechanical) and Assistant Engineer (Civil) in the Respondent

Corporation.

3 vide Memo No. 02972I360IAdm.I./A1/ F. Appt. order/2017-7 dated 31.03.2017 by the Superintendent Office,

Karur.

4 vide letter of selection bearing No. 024396/ 108/G.55/G.551/2015 dated 30.03.2017.

5 bearing No. 13278/MB/2017.

6 In WP(MD)No. 2255/2019.

3

appellant’s selection, pursuant to the medical report dated 5.12.2019. The

appellant’s services were terminated with effect from 14.05.2020.

4.Aggrieved, the appellant approached the Madras High Court

7

through

appropriate proceedings under Article 226. The High court by order dated

17.03.2021 allowed the petition and directed appointment of the appellant to the

post of AE (Electrical), with effect from 31.03.2017 (the date of his original

appointment) and observed:

“7. The Superintending Engineer, in his letter dated 15.04.2017, has assumed

that the petitioner had '"colour blindness"' which, was not backed with any

medical report. Likewise, the Chief Engineer (Personal), in the impugned

order of rejection has also termed the petitioner's eye condition as "colour

blindness". On the contrary, the medical experts attached to the

Ophthalmological Department of the two Hospitals referred above, were

clearly of the view that there was only a 'defective colour vision' and not

"colour blindness". There is a huge difference between '"colour blindness"'

and 'defective colour vision'. In the case of defective colour vision, the person

with such defect could perform his normal routine life, if the defectiveness is

minimal and probably, if the defectiveness was to be maximum, may be such

candidate may have some inconvenience in his routine vision.

8. Admittedly, such norms have not been prescribed in the notification dated

28.12.2015 calling for applications to the post of Assistant Engineer

(Electrical), nor does the recruitment regulations of TANGEDCO prescribe

these norms. While the medical experts have not certified the fitness of the

petitioner's colour vision, the respondents seem to have unilaterally come to a

conclusion that the defectiveness in 'colour vision’ opined by the medical

expert, would be to such a percentage as to hamper the regular duties of an

Assistant Engineer (Electrical). Such a decision is not based on intelligible

differentia. No reliance has been placed on expert reports or any other

material for the respondents to arrive at such a conclusion. "

9. The impugned order seems to place much reliance on the duties,

responsibilities and functions for the post of an Assistant Engineer

(Electrical). In order to ascertain as to whether a candidate holding the post

would be disentitled or unfit to perform such duties, functions or

responsibilities, the determination requires to be made on the basis of some

materials supported by the reports of medical experts. In the absence of such

materials or medical report and merely relying upon the duties, functions and

responsibilities for the post of Assistant Engineer (Electrical), would be

illogical and baseless and hence, such reasoning rendering the petitioner

'unfit', could be termed as 'arbitrary'.”

7 W.P.(MD) No.15115 of 2020.

4

5.Aggrieved by the above single judge order of the High Court, the

employer- TANGEDCO, preferred writ appeal

8

before the Division Bench of

the High Court. The bench was of the opinion that employer had taken all

relevant facts into consideration and having regard to the nature of the duties to

be discharged in relation to the post i.e., AE by the appellant and observed:

“7. All that TANGEDCO communicated to the petitioner was that the special

committee constituted to look into the petitioner's case had opined that the

petitioner would not be fit to discharge the duties involved in such post. There

is always a presumption that a statutory body or an authority answering to

that description under Article 12 of the Constitution would have acted in a

reasonable manner and would have taken relevant considerations into

account before passing an order or arriving at a decision. While such

presumption may be rebuttable, the writ petitioner does not indicate any

manifest arbitrariness in the impugned decision of TANGEDCO for the Court

to perceive the same to be grossly disproportionate to the condition that the

writ petitioner suffers from or the handicap that accompanies such

condition.”

6.Aggrieved, the appellant approached this court under Article 136 and

argued that the initial notification

9

for the post did not specify any qualifying

criteria with regard to vision or colour blindness. Therefore, it was submitted

that the absence of any specific qualifying criteria in the notification,

TANGEDCO’s action preventing the appellant from joining his duties is

arbitrary and illegal. It was further argued that, following the High Court order

dated 11.03.2019

10

, the appellant was examined by the RMB, Thanjavur and in

its report, the expert opined that the appellant had defective colour vision; its

report was not specific about whether the condition could affect his duties as

there were no specified visual norms for colour vision. In fact, the RMB also

noted that the employer had not set out the required norms and it was hence not

possible to opine whether the appellant could or could not perform his duties.

The appellant relied upon the report of Aravind Eye Hospital and Post-Graduate

8 W.A.(MD) No.506 of 2021.

9 No. 1/2015 dated 28.12.2015

10 In W.P.(MD)No. 2255/2019.

5

Institute of Ophthalmology, Chennai which stated that he could identify red as

orange colour and green and blue as lighter shades of those colures.

7.This court, by its order dated 24.1.2023, requested TANGEDCO to

explore the feasibility of accommodating the appellant. TANGEDCO, in its

additional affidavit, submitted that such accommodation was not possible since

the appellant was selected for a particular post which requires him to be in the

field for at least 10 years of his career. This role involved visual inspection of

machinery with specific colour coding. TANGEDCO further submitted that the

AE’s post is a technical position which involve colour coded cables and gadgets

that require awareness of colours. The lack of their awareness could pose a risk

to the appellant’s safety and that of general public.

8.TANGEDCO, in its additional affidavit, urged that the appellant had not

joined its services, nor worked for a day. His colour blindness came to light

before he was permitted to join duty and hence, the provisions of Disabilities

Act would not be applicable. This court, by order dated 5.4.2023, directed an

independent ophthalmologist to facilitate the visual examination of the appellant

and give its report in sealed colour. The report was received, after which

TANGEDCO reiterated its original position, declining to accommodate the

appellant in any position- administrative, planning, or other general department.

The appeal was heard, in these circumstances.

9.TANGEDCO admits that there are no norms fixed by it as eligibility

conditions for selection to the post of AE, vis-à-vis colour vision norms.

However, it argued that as a public employer, the fitness of a selected candidate

to discharge the functions required of the post, advertised, and for which a

candidature is held out by an eligible applicant, having proper colour vision, is a

necessary criterion. It was highlighted that an AE holds a fairly responsible

position, inasmuch as initially the holder of the post, has to carry out routine

inspections, to verify the work done by Linemen, Technical assistants, who are

then supervised by Junior Engineers-II. Counsel for TANGEDCO, after

6

obtaining instructions, on the previous date of hearing, stated that the appellant

can be accommodated as Junior Assistant, in view of his being an engineering

graduate, as holder of a degree, and that “the promotional avenues for the post

of Junior Assistant/Administration are Assistant/Administration, Administrative

Supervisor, Assistant Administrative Officer, Administrative Officer and Senior

Administrative officer and all these posts does not have any Technical, colour

related, electrical live environment nature of work.”

Contentions

10.TANGEDCO relies upon two single judge decisions of the Gujarat High

Court (Tusharkumar Karsanbhai Vinzuda v. State of Gujarat

11

and Bhavesh

Khimabhai Pandit v. State of Gujarat

12

) and a Division Bench judgment in

Tushar Karsanbhai Vinzubhai v. Paschim Gujarat Vij Co. Ltd.

13

. In these three

judgments, Gujarat High Court dealt with colour blindness of candidates, who

had applied for the post of Technical Assistants, in electrical utilities [much like

TANGEDCO] and after considering the report of the experts upheld the

rejection of application for recruitment on the ground that the post required its

holder to “deal with live wires, especially during installation where the colour

of the wires is of prime importance”. Reliance was also placed on Sutton Et Al.

v. United Air Lines, Inc.

14

where the claimants had possessed poor visual acuity

(20/200 on one eye and 20/400 in another eye). The appellants had sought

employment as commercial airlines pilots which were declined based upon

federal aviation administration certification qualifications. The standard

prescribed was a vision of 20/100. The US Supreme Court, upon an

interpretation of the term “disability” under the relevant law

15

held that it was a

condition which was a physical or mental impairment that substantially limits

11 SCA No.8611/2020, decided on 08.02.2022.

12 SCA 2916/2022, decided on 11.02.2022.

13 C/LPA 331/2022, decided on 23.09.2022.

14 527 US 471 (1999).

15 42 U. S. C. § 12102(2)(A).

7

one or more of the life activities of such individual, was held that the claim was

not established. The Court held that:

“To be substantially limited in the major life activity of working, then, one

must be precluded from more than one type of job, a specialized job, or a

particular job of choice. If jobs utilizing an individual’s skills (but perhaps not

his or her unique talents) are available, one is not precluded from a

substantial class of jobs. Similarly, if a host of different types of jobs are

available, one is not precluded from a broad range of jobs.”

11.TANGEDCO, in its additional affidavit states that its Chief Engineer

(Personnel), by her additional affidavit disclosed its stated position that

appellant’s colour blindness came to light before he was permitted to join duties

and further that:

“6.I humbly state that the Petitioner applied for the post of Assistant

Engineer and the same is a technical position which will involve cables and

other gadgets having colour coding. I state that being so it is extremely

essential to be aware of the colours, lack of which, would result in risk to the

petitioner’s own safety and that of the general public and also the equipments

installed for Generation and Distribution of supply to the public.

7. I humbly submit that the Assistant Engineers/Electrical (Trainee) has

to work both in the field and in the offices to complete their training period.

An Assistant Engineer cannot be utilized completely for office works for

almost ten years or more and thereafter in the promoted post of Assistant

Executive Engineer also. The colour defectiveness will certainly impair the

petitioner’s ability to perform the duties and responsibilities of Assistant

Engineer/Electrical (Trainee). The petitioner herein with the qualification of a

Bachelor of Engineering in Electrical and Electronics Engineering and

having colour defectiveness cannot be considered to be accommodated in the

same post i.e. Assistant Engineer/Electrical (Trainee) in TANGEDCO.”

12.During the course of hearing, Mr. Mehmood Umar Faruqui, an AOR who

was present in the courtroom offered his assistance. He had collected

considerable case laws and literature on this subject. The court expresses its

gratitude for his valuable contribution and efforts.

13.On behalf of the appellant, Mr. A. Velan, learned Advocate had appeared.

It was argued that the report of the Sankara Nethralaya Hospital which was

8

sought, dated 26.05.2023 used the reputed “Ishihara Pseudo Isochromatic

Plates” based test. The material portion of the test revealed that he had mild

colour vision deficiency. The conclusions of the Sankara Nethralaya Eye

Hospital were as follows:

“3.On the above tests, he was diagnosed to have mild colour vision

deficiency.

a) With Ishihara colour vision screening test except for the demo plate,

he did not provide correct response to other plates.

b) With AO - HRR test, he was able to identify the demo plates and with

the

diagnostic plates, he responded for two of the milder form protan plates.

c) In FM 100 hue test, he was able to perform without any delay and he

reconfirmed that

he understood the test.

d) He was able to perform the wire matching test with fluency (Figure 1).

e) On signal test, he was making errors and confused it with yellow.

4. He was then taken to the "on the field test" for observing his

capabilities at work station. The test was conducted at the work station of

TANGEDCO situated at 141, Anna Salai, Chennai-600 002). He was asked to

read out the colours of the display panels appeared on the monitor of the

computer system. He was making errors when the colour comes closer to

yellow. He was misreading that colour as lighter shade of green which is

actually yellow.

5. On the control panel large display unit, he was asked to read out

signals and also the numbers written in various colours. He was able to read

the numbers and text without any difficulty. He was also able to identify the

coloured arrow marks. (We are unable to provide picture as we were not

allowed to take photo quoting confidentiality).

6. At the Chennai Distribution Control Unit, he was asked to identify the

colours on the distribution line charts. He was able to identify majority of the

colours but made errors with colours yellow and green closely placed.

7. He was also made to identify wires in the control room station. He

identified majority of the colours but made errors with brown and orange

coloured wires and also with green and yellow coloured wires.

8. After the field visit, dilated fundus examination was performed. Retina,

macula and optic nerve head appeared to be normal for both eyes.”

OBSERVATION:

1. With the above findings observed during the examination conducted and

9

considering his job profile, we conclude that he could encounter errors while

reading the distribution line charts which is crucial for the job profile of AE's

to make judgment on the running of the lines.

2. He also has confusion when it comes to lighter shades of colours of

green and red.”

14.The appellant also relies upon Nandkumar Narayanrao Ghodmare v.

State of Maharashtra

16

where the court had to deal with an aspirant to the

position of Agriculture Officer. He was assessed to colour blindness. The court

directed that the disorder or so-called defect should not constitute a bar to

appointment and that he should be provided employment, commensurate with

the organisation’s other requirements. The court was of the view that except

some posts, there were other positions in the cadre that needed no perfect colour

vision and that persons with colour blindness would also be accommodated. The

court therefore directed the State to grant employment. Reliance also was placed

upon the more recent judgment in Pranay Kumar Poder v. State of Tripura

17

where the Court highlighted the features of the Ishihara colour vision test. It was

emphasized that colour vision deficiency is neither impairment of vision and in

that sense falling within the disability spectrum calling for treatment under the

Rights of Persons with Disabilities Act, 2016 nor is it of such condition as to bar

sufficiently qualified persons’ entitlement to be employed in an organization

that can accommodate her educational attainments and talents. Learned counsel

also relied upon Ashutosh Kumar v. Film and Television Institute of India

18

where like in the present case, the expert body which is the All India Institute of

Medical Sciences (AIIMS) reported that the petitioner suffered from colour

vision deficiency. The FTII had refused him admission. The court referred to the

technical experts’ report, and stated that the overall emphasis of the course- the

admission of which was sought placed emphasis on appreciation of art and

16 1995 (Supp 4) SCR 565.

17 2017 (2) SCR 797.

18 [2022] 16 S.C.R 1094.

10

culture, of innovation, intuitiveness unrestricted by impediments which can be

overcome by assistance. The court was therefore of the opinion that that despite

the colour vision deficiency, the applicant should be granted admission.

15.It is further pointed out that in the hierarchy of posts, the junior most

would be a lineman; the next in line would be a Technical Assistant, who is a

diploma holder; above whom would be the Junior Engineer (Grade-II). It was

emphasized that the Junior Engineer (Grade-II) would thus supervise and

oversee the work of Technical Assistants and Lineman who would be the

individuals or employees responsible to actually visit the site. The AE would be

in a position therefore, fourth in the hierarchy above the Lineman, Technical

Assistant and Junior Engineer (Grade-II). It was highlighted -based upon the

organizational division of the corporation that there are several branches where

Assistant Engineers are accommodated. For instance, the AE who functions as a

Section Officer, can also be asked to participate as AE (Substation

Maintenance). In other words, these posts are inter-changeable. Likewise, the

AE (Shift Engineer) is inter-changeable with Substation Maintenance

Department AEs. The AEs are also expected to work in the office of the

Superintending Engineer (SE). They can be deployed to work as AE (Material

Management) or AE (CAUP) in the office of the Executive Engineer or even as

AE (General) in the office of the SE office only. The AE (General) in the office

of the SE can interchangeably use for AE (Lines) in the Substation.

16.It was argued that there are sufficient safeguards to ensure that a person

like the appellant can be posted in a position in not merely in one department

but several departments or units which may not require actual field

participation. It is also emphasized that the mandate of accommodation or

reasonable accommodation requires the employer to ensure that every person’s

talent is utilized to the utmost, within the limitations that she or he is placed in,

11

inadvertently. Therefore, the employer in the present case, was clearly under a

duty to accommodate the appellant and continue with his employment.

Analysis and Conclusions

17.As noticed earlier, TANGEDCO, has nowhere indicated in express terms,

that colour vision deficiency, in any form or degree, is a bar to employment for

AE. Its broad argument that a candidate’s level of medical fitness necessary for

the discharge of functions and responsibilities, required of the post, is

unexceptionable. Yet, that broad formulation is not sufficient ground for it to

deny the possibility of any form of accommodation. The need- nay, the

entitlement of the appellant to some form of accommodation, in this case, is

undeniable, because he is a graduate in electrical engineering. This implies that

he has more than basic or essential knowledge of the subject; he has awareness

and experience in respect of identification of functions of various kinds of

electrical equipment and appliances. A precondition for successfully

completing a course in electrical engineering, is practical experience during the

course, about the functions of such equipment and appliances, the possible

defects and solutions for their breakdown. The facts of this case instruct us that

there is nothing on record to suggest that whatever condition the appellant had,

was without his awareness; his academic performance, skill and proficiency,

during the course of his education nowhere appears to have highlighted the

colour vision deficiency, which appears to have been discovered after his

selection. As a condition for his selection, he cleared the public examination

successfully, and appears to have also participated in the viva voce or interview,

successfully.

18.The provisions of the Rights of Persons with Disabilities Act, 2016

(hereafter “the Act”) were preceded by the previous law, the Persons with

Disabilities (Equal Opportunities, Protection of Rights, and Full Participations)

Act, 1995. The previous law, was enacted by Parliament pursuant to our country

12

becoming a signatory to the Proclamation on the Full Participation and Equality

of the People with Disabilities in the Asian and Pacific Region

19

. The earlier

Act, as well as the Act have set out provisions to enable participation, and

empowerment of persons with disability (PWD), including affirmative action

for their admission to educational institutions, entry level reservations in

established controlled by the state or its agencies, and general provisions to

enable physical access to institutions; it also mandates provisioning of existing

institutions, to accommodate PWDs, in physical infrastructure, and at all points

to enhance full participation and functioning of such individuals. Its provisions

defining “disability” and persons with disabilities

20

, are fairly elaborate;

interestingly these concepts are defined in an inclusive manner, lead to

potentialities for their use. However, at the same time, the actual benefits in the

form of affirmative action are defined by a specific category of PWDs

(orthopaedical, visual, hearing, mental, etc.) and tied to the context of

“benchmark” disabilities

21

, which entitles those PWDs who qualify with a

certain threshold of disability (40 per cent or more) to the affirmative action and

other similar benefits

22

. The nature of inclusion of specified categories only to

19 A Meeting held to to Launch the Asian and Pacific 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 Pacific Region.

20 Section 2 (s) defines as follows: ‘“person with disability” means a person with long term physical, mental,

intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective

participation in society equally with others;’

21 Which is defined by Section 2 (r): ““person with benchmark disability” means a person with not less than

forty per cent. of a specified disability where specified disability has not been defined in measurable terms and

includes a person with disability where specified disability has been defined in measurable terms, as certified by

the certifying authority;”

22 Section 33 of the Act reads as follows: Identification of posts for reservation-

The appropriate Government shall—

(i) identify posts in the establishments which can be held by respective category of persons with

benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

(ii) constitute an expert committee with representation of persons with benchmark disabilities for

identification of such posts; and

(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

34. Reservation. — (1) Every appropriate Government shall appoint in every Government

establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group

of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be

reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons

with benchmark disabilities under clauses (d) and (e), namely:—

(a) blindness and low vision;

(b) deaf and hard of hearing;

13

the exclusion of other categories of disabilities, on the one hand, and the

eligibility of a threshold, in the opinion of this court, constitute barriers.

19. The Act contains a general non-discriminatory provision:

“3. Equality and non-discrimination.

(1) The appropriate Government shall ensure that the persons with

disabilities enjoy the right to equality, life with dignity and respect for his or

her integrity equally with others. (2) The appropriate Government shall take

steps to utilise the capacity of persons with disabilities by providing

appropriate environment.

(3) No person with disability shall be discriminated on the ground of

disability, unless it is shown that the impugned act or omission is a

proportionate means of achieving a legitimate aim.

(4) No person shall be deprived of his or her personal liberty only on the

ground of disability.

(5) The appropriate Government shall take necessary steps to ensure

reasonable accommodation for persons with disabilities.”

20.The twin conditions of falling within defined categories, and also a

threshold condition of a minimum percentage, of such disabilities, in fact are a

barrier. The facts of this case demonstrate that the appellant is fit, in all senses

of the term, to discharge the duties attached to the post he applied and was

selected for. Yet, he is denied the position, for being “disabled” as he is colour

blind. At the same time, he does not fit the category of PWD under the lexicon

of the universe contained within the Act. These challenges traditional

understandings of what constitute “disabilities”. The court has to, therefore,

travel beyond the provisions of the Act and discern a principle which can be

rationally applied.

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and

muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the

posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued

by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the

State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government

establishment, by notification and subject to such conditions, if any, as may be specified in such notifications

exempt any Government establishment from the provisions of this section.

14

21.In Jeeja Ghosh v. Union of India

23

this court observed:

“40. In international human rights law, equality is founded upon two

complementary principles: non-discrimination and reasonable differentiation.

The principle of non-discrimination seeks to ensure that all persons can

equally enjoy and exercise all their rights and freedoms. Discrimination

occurs due to arbitrary denial of opportunities for equal participation. For

example, when public facilities and services are set on standards out of the

reach of persons with disabilities, it leads to exclusion and denial of

rights. Equality not only implies preventing discrimination (example, the

protection of individuals against unfavourable treatment by introducing anti-

discrimination laws), but goes beyond in remedying discrimination against

groups suffering systematic discrimination in society. In concrete terms, it

means embracing the notion of positive rights, affirmative action and

reasonable accommodation.”

22.Ravinder Kumar Dhariwal v. Union of India

24

highlighted on the right to

equality and underlined the two aspects: formal equality and substantive

equality. It stated that substantive equality aims at producing equality of

outcomes, and in the context of the case, observed that the “principle of

reasonable accommodation is one of the means for achieving substantive

equality, pursuant to which disabled individuals must be reasonably

accommodated based on their individual capacities.” The court

recollected Vikash Kumar v. Union Public Service Commission

25

, which held as

follows “The principle of reasonable accommodation acknowledges that if

disability” should be remedied and opportunities are “to be affirmatively

created for facilitating the development of the disabled. Reasonable

accommodation is founded in the norm of inclusion. Exclusion results in the

negation of individual dignity and worth or they can choose the route of

reasonable accommodation, where each individual's dignity and worth is

respected.”

23.It was also noted that provisions of Chapters VII and VIII of the Act are

in furtherance of the principle of reasonable accommodation which is a

23 [2016] 4 SCR 638.

24 2021 (13) SCR 823

25 2021 (12) SCR 311

15

component of the guarantee of equality. This has been recognised by a line of

precedent. This court, in multiple cases has held that the principle of reasonable

differentiation, recognising the different needs of persons with disabilities is a

facet of the principle of equality.

24.The significant impact of Vikash Kumar (supra) is that the case dealt with

a person with a chronic neurological condition resulting in Writer’s Cramp,

experiencing extreme difficulty in writing. He was denied a scribe for the civil

services exam by the UPSC, because he did not come within the definition of

person with benchmark disability (40% or more of a specified disability). This

court, rejected this stand, and held him to be a person with disability. It was also

stated that the provision of scribe to him fell within the scope of reasonable

accommodation. The Court said:

“… the accommodation which the law mandates is ‘reasonable’ because it

has to be tailored to the requirements of each condition of disability. The

expectations which every disabled person has are unique to the nature of the

disability and the character of the impediments which are encountered as its

consequence…”

25.The appellant is, for all purposes, treated as a person with disability, but

does not fall within the categories defined in the Act, nor does he possess the

requisite benchmark eligibility condition. The objective material on the record

shows that the colour vision impairment is mild. Yet, TANGEDCO’s concerns

cannot be characterised as unreasonable. However, TANGEDCO is under an

obligation to work under the framework of “reasonable accommodation”, which

is defined by Section 2 (y) as follows:

“(y) “reasonable accommodation” means necessary and appropriate

modification and adjustments, without imposing a disproportionate or undue

burden in a particular case, to ensure to persons with disabilities the

enjoyment or exercise of rights equally with others;..”

26.Reasonable accommodation thus, is “appropriate modification and

adjustments” that should be taken by the employer, in the present case, without

that duty being imposed with “disproportionate or undue burden”.

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TANGEDCO- the employer expresses its willingness to accommodate the

appellant. Yet the position it offers, is highly inadequate: that it is belated, is

beside the point. In the considered view of this court, the post offered, i.e.,

Junior Assistant, is inconsistent with the appellant’s qualification which cannot

be offered to him; the offer is a mere palliative gesture, which he justifiably

rejected.

27.TANGEDCO, during the hearing was unable to show how it employing

the appellant in one of the many departments or units [as AE (Material

Management) or AE (CAUP) in the office of the Executive Engineer or even as

AE (General) in the office of the SE or as AE (General)] is not possible. The

hierarchy of posts further indicates that the primary inspection responsibilities

of technical nature are upon Junior Engineers, who oversee the work of

Technical Assistants, and that of Linemen. It is evident that the AE works at a

position of overseeing supervisory work of Junior Engineers. This could

involve, at the field stage, satisfaction after visual inspection. Sufficient

safeguards (whenever the appellant’s services in that regard are absolutely

essential, and he is deployed on some occasions) can be taken, to ensure that he

is accompanied by those without any colour vision deficiencies or impairments.

TANGEDCO’s units and organizational structure, in this court’s opinion, have

sufficient possibility for accommodating the appellant in a unit or department

which may not require utilization of skills that involve intense engagement with

colour. As stated earlier, these are AE (General) in SE office, AE (CAUP) in EE

office; AE (Material Management). The TANGEDCO, is under an obligation to

ensure that the appellant is therefore, suitably accommodated in any such

general department or establishment.

28.In view of the foregoing discussion, the impugned judgment cannot

stand; it is set aside. TANGEDCO, the respondent corporation, is directed to

appoint and continue the appellant in its service, as AE (Electrical) at the

appropriate stage of the grade of pay, from the date he was terminated from

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service, or his appointment was cancelled, and accommodate him in a suitable

department, where he can be given appropriate responsibilities. The appellant

shall also be entitled to 50% of full arrears of salary, and all allowances, and his

service shall be reckoned from the original date of appointment, (which was

later cancelled), with full continuity. The appeal is allowed in these terms,

without order on costs.

...............................................J.

[S. RAVINDRA BHAT]

..............................................J.

[ARAVIND KUMAR]

NEW DELHI,

OCTOBER 16, 2023.