MOHAMED IBRAHIM vs. THE CHAIRMAN AND MANAGING DIRECTOR

1 REPORTABLE 2023 INSC 914 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 1 is aggrieved by a judgment of the Madras High Court , 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. Signature Not Verified Digitally signed by VISHAL ANAND Date: 2023.10.20 15:26:30 IST Reason: 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 2 3 4 2015 and he joined the services on 31.3.2017 . The corporation informed 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 5 23.02.2018 , 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 6 dated 11.03.2019 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. 7 4. Aggrieved, the appellant approached the Madras High Court 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 8 employer- TANGEDCO, preferred writ appeal 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 9 argued that the initial notification 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 10 dated 11.03.2019 , 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 11 Court ( Tusharkumar Karsanbhai Vinzuda v. State of Gujarat and Bhavesh 12 Khimabhai Pandit v. State of Gujarat ) and a Division Bench judgment in 13 Tushar Karsanbhai Vinzubhai v. Paschim Gujarat Vij Co. Ltd. . 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. 14 v. United Air Lines, Inc. 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 15 interpretation of the term “disability” under the relevant law held that it was a condition which was a physical or mental impairment that substantially limits SCA No.8611/2020, decided on 08.02.2022. 11 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:

he understood the test.

OBSERVATION: 1. With the above findings observed during the examination conducted and 9

14. The appellant also relies upon Nandkumar Narayanrao Ghodmare v. 16 State of Maharashtra 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 17 upon the more recent judgment in Pranay Kumar Poder v. State of Tripura 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 18 also relied upon Ashutosh Kumar v. Film and Television Institute of India 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

19 of the People with Disabilities in the Asian and Pacific Region . 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 20 defining “disability” and persons with disabilities , 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 21 “benchmark” disabilities , which entitles those PWDs who qualify with a certain threshold of disability (40 per cent or more) to the affirmative action and

(a) blindness and low vision; (b) deaf and hard of hearing; 13

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

“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 23 21. In Jeeja Ghosh v. Union of India this court observed:

15

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” . 16 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 17 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]