Supreme Court: Citing Reasonable Accommodation provisions, bench directs a person with defective colour vision to be appointed as Assistant Engineer Electrical

Court: Supreme Court of India

Bench: Hon'ble Mr. Justice S. Ravindra Bhat and Hon'ble Mr. Justice Aravind Kumar

Case No.: Civil Appeal No. 6785 of 2023 [@ Special Leave Petition (Civil) No. 12671 of 2022]

Case Title: Mohamed Ibrahim Vs. The Chairman & Managing Director & Ors.

Date of Judgement: 16 October 2023

Brief:

The Supreme Court granted relief to the appellant - a person with colour blindness - who was denied appointment to the post of Assistant Engineer applying the principle of "reasonable accommodation" as defined in the RPwD Act. Incidently, colour blindness is not an identified or defined disability in the schedule to the Act.

The Court highlighted that the provisions of the RPwD Act are specifically designed to foster the participation and empowerment of Persons with Disabilities (PwDs). However, it expressed its concern that the benefits arising from affirmative action are confined to a specific category of PwDs, including those with orthopedic, visual, hearing, and mental disabilities, among others covered in the schedule to the Act. These benefits are intricately linked to the concept of "benchmark" disabilities, which grants affirmative action and similar benefits to PwDs who meet a defined threshold of disability, typically 40 percent or more. This distinction based on specified categories and threshold conditions, as per the topc court, creates substantial barriers.

It bench observed, “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, which entitles those PwDs who qualify with a certain threshold of disability (40 percent or more) to the affirmative action and other similar benefits. The nature of inclusion of specified categories only to 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.”

"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," opined the court. The Court emphasized the necessity of a more rational and inclusive approach to accommodate individuals who may not it into the established categories of PwDs in the schedule to the Act.

“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 color blind. At the same time, he does not fit the category of PwD under the lexicon of the universe contained within the Act. These challenge traditional understandings of what constitutes “disabilities”. The court has to, therefore, travel beyond the provisions of the Act and discern a principle that can be rationally applied.”

The bench was hearing an appeal against the Madras HC judgment which had ruled in favour of the respondent(TANGEDCO) asserting its right to reject the appellant's candidature on the grounds of colour blindness. The case revolved around a job application for the position of Assistant Engineer (Electrical) by the appellant. The appellant, who was initially considered qualified for the role, was subsequently found to be color blind during a medical examination. This raised concerns about his ability to fulfill the responsibilities of an engineer, which frequently involve working with color-coded power cables and wires.

As a result of these concerns, TANGEDCO rejected the appellant's candidature. The appellant challenged this decision under Article 226 of the Constitution, and the Madras High Court initially ruled in his favor, directing TANGEDCO to offer him the position. However, in appeal before the division bench, the decision highlighted the evolving doctrine of proportionality, indicating that TANGEDCO's decision had a reasonable basis, even by this modern standard. Consequently, the division bench's judgment reversed the previous order, leading the appellant to seek redress from the Supreme Court. 

The SC bench noted that respondent TANGEDCO had not explicitly indicated that colour vision deficiency, in any form or degree, serves as a disqualifying factor for the role of an Assistant Engineer. It emphasized that the appellant, being a graduate in electrical engineering, possessed knowledge and experience related to the role's functions. Additionally, practical experience during the course exposed the candidate to equipment defects and solutions for breakdowns. Thus, the SC bench established the need for some form of accommodation.

The Court relied on Jeeja Ghosh v. Union of India (2016) 4 SCR 638 to highlight that when public facilities and services are designed with standards inaccessible to persons with disabilities, it results in their exclusion and a denial of rights. The concept of equality goes beyond merely preventing discrimination; it involves addressing systematic discrimination through positive rights, affirmative action, and reasonable accommodation.

The Court also cited the case of Ravinder Kumar Dhariwal v. Union of India  2021 (13) SCR 823, which distinguishes between formal equality and substantive equality. Substantive equality aims to achieve equal outcomes, and the principle of reasonable accommodation plays a critical role in this.

The Court observed that reasonable accommodation entails accommodating disabled individuals based on their capacities. It also relied on Vikash Kumar v. Union Public Service Commission  2021 (12) SCR 311, which held “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.”

The court also cited Ashutosh Kumar v. Film and Television Institute of India (2022),  where the Supreme Court directed the FTII to accommodate students with colour blindness saying, "The respondent institute is a premier institute and one would expect it to encourage liberate thought process and not put courses connected with films in any conformist box".

While  acknowledging the resondent's concerns about colour vision impairment, the Court reminded the TANGEDCO of its obligation to operate within the framework of "reasonable accommodation" as defined by Section 2(y) of the RPwD Act. Resultantly, the court set aside the impugned judgement of the Division bench of Madras High Court saying, “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,”.

During the hearing, the Court learnt that a member of the bar, Mr. Mehmoud Yumar Faruqi had life experiences of colour blindness -as someone living with a condition of colour blindness and had collected considerable case law and literature. The court had, therefore, requested his assistance for the proceedings. The court expressed its gratitude for his assistance.  

Access the judgement below:

Supreme Court- FTII should make reasonable accommodation in their curriculum for candidates with colour blindness in all courses.

Court: Supreme Court of India 

Bench: Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice MM Sunresh.

Case No: Civil Appeal No. 7719 of 2021

Case Title: Ashutosh Kumar Vs. The Film and Television  Institute of India & Anr. 

Date of Judgement: 12 April 2022

Brief:

Films and Television Institute of India - Majority view of the Committee appointed by SC accepted - Individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals - FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. (Para 26-35)

A Supreme Court bench directed the Film and Television Institute of India(FTII) to allow color blind candidates to take admission in all its courses. Court further mooted a proposal to make subjects that may not inclusive for such students to be made optional.

In December 2021, Ashutosh Kumar, a 35-year-old man approached the Supreme Court after being barred by the institute because he is color blind. The institute had put forth the logic that he may not be able to pass in certain subjects.

then directed the creation of a panel of experts comprising 

The top court had, instead of taking a call itself on whether colour blindness would be an aspect which would be an impediment in going through the course, it formed a committee of experts consisting of  an ophthalmologist, a film director, a film editor, a script supervisor, a head of the department from FTII, and a lawyer to analyze whether students with color blindness can be allowed to pursue a course in FTII,  to look into the issue and to facilitate a more comprehensive exercise by the Committee to opine on the aspect of colour blindness qua all the courses for which it is perceived as a disqualification. The court framed the two issues on which the opinion of the members was sought as under: 

“i. Whether the course curriculum provided for diploma in Editing can be successfully completed by the appellant who suffers from color blindness? 

Committee’s recommendations: The appellant Mr. Ashutosh Kumar who has Red and Green color vision deficiency and has color perception of CP4, as per the AIIMS Medical Board report, will have difficulty in completing the existing course curriculum of the diploma in Film and Editing course offered by the FTII. This is more particularly due to a twenty-minute ‘color grading module’ which is part of the Film Editing curriculum. However, the color grading module has no relevance to either the film editing course or to the film editor’s professional role (Mr. K. Rajasekaran, HoD Editing, FTII, does not agree that the color grading module is irrelevant to the film editing course). 

ii. To facilitate a more comprehensive exercise, the role of the committee would be to opine on the aspect of color blindness qua all the courses for which it is perceived as a disqualification.”

Committee’s recommendation: It is the opinion of the committee that :

i. It is recommended that individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals. Any limitation can be overcome by an assistant in educational and professional life.

ii. FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. For example, by providing elective/optional modules in the curriculum for those core credits which may require intensive color appreciation or in any other way. 

iii. The color grading module in the existing Diploma in Film Editing Course curriculum, should either be excluded or made elective, thereby lifting the bar of admissions for individuals with color blindness.” 

Court analyzed the report filed by the panel of experts, all of whom except one had recommended that FTII should admit students with color blindness as stressing that “filmmaking is a collaborative art and shortfalls can be addressed by having assistance while making the film.”

In particular, the committee expressed that individuals with colour blindness should be permitted to enroll for all courses offered by the FTII with the following reasoning:-

(a) Film and television creations are collaborative art forms. Restricting entry of colour blind candidates to film courses may sacrifice creative talent and stultify the development of the art. Inclusivity enriches this creative art form by introducing variety, any limitation can be overcome by assistance in the educational and professional life. 

(b) It is not the role of FTII to decide for candidates their future prospects as a film/television professional. If learning limitation of the candidate can be overcome by making reasonable accommodation or with the help of an assistant, the candidate should be eligible for admission to courses offered by FTII. 

(c) Film editing is the art, technique and practice of assembling shots into a coherent sequence and the job of an Editor is not simply to mechanically put piece of a film together, cut off film slates or edit dialogue scenes. The Film Editor must creatively work with the layers of images, story, dialogue, music, pacing as well as the actors performances to effectively “reimagine” and even re-write the film to craft a cohesive whole.

Court while agreeing with their view noted that “We find ourselves with majority view of committee. Same to be adopted by FTII in its curriculum. It does not impede on their freedom but gives them a broader canvas in pioneering effort.”

Court further noted that FTII as a premier institute can put reasonable accommodation like other global institutes from whom the panel of experts sought an opinion.

it was subitted that applicant was not permitted to take up the course despite having completed six months of the course. He submitted that though he is willing to waive the first six months and start afresh again he should not have to go through the admission process again after a medical officer had cleared his eye examination.

Furthermore, counsel for the FTII submitted that it would be a difficult task to modify the entire course as the field is of technical nature and in some courses visually impaired are specifically limited from being able to pursue it.

Court on hearing the submission granted two weeks time for the institute to file its reply on this aspect and adjourned the matter to May 10. Sussequently the FTTI agreed to keep an additiona seat and grant admission to the petitioner in the session starting in March 2023 as prayed.

Access the judgement below:

Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Court: Supreme Court of India

Bench: Hon'ble Chief Justice Dipak Misra, Justice Amitava Roy and Justice AM Khanwilkar 

Case No: Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015)

Case Title: Pranay Kumar Podder Vs. State of Tripura and Others

Date of Judgement: 23 March 2017 and Complianace Order dated  12 Sep 2017

Brief

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, andd fixed the next listing on 11 July 2017 for compliance.

See the judgement dated 23 March 2017 and  compliance Order dated 12 Sep 2017 below:

Judgement dated 23 March 2017:

 

 

Compliance Order dated 12 Sep 2017:

Bombay HC: Upholds rejection of a candidate with Colour Blindness for admission to FTII

Court: Bombay High Court (civil appellate jurisdiction)

Bench: Justice Shantanu Kemkar and Justice Prakash Naik 

Case No.: Writ Petition No. 12296 of 2016

Case Title:  Ashutosh Kumar Dariyapur Gola Vs. The Film and Television Institution of  India & Anr        

Date of Judgement: 07th March, 2017

Brief:

The Bombay high court on Tuesday upheld the decision of Film and Television Institute of India (FTII) not to grant a colour blind candidate admission to the film editing course.

A divison bench gave their verdict on a petition by Patna based Ashutosh Kumar who was short listed for the post graduate diploma course in film editing. During medical examination he was found to be colour blind and his admission was declined in view of FTII Rules which state that colour blind candidates are not entitled to get admission in various courses including film editing.

Kumar's advocate Kartikeya Bahadur argued that colour blindness is neither a blindness with the meaning of Persons with Disabilities Act and as such the denial on the  basis of colour blindness is illegal. The judges took note that FTII has set up an admission committee of experts from various fields to review the admission criteria.

The bench said when an expert body has fixed eligibility criteria and carved out six courses in which colour blind candidates are not found suitable, the action of  FTII denying admission cannot be said to be illegal or arbitrary. "Keeping in mind the aforesaid, we are of the view that the petitioner being a candidate suffering

from disability of colour blindness, he cannot claim admission in the course in question, in which according to FTII Rules framed by expert body, he cannot be allowed,'' it added. The judges also noted that in the absence of any mala fide or arbitrariness alleged by Kumar against FTII there is no need for the court to  interfere.

Bombay HC - Termination of Driver with Colour Blindness quashed, given protection of section 47; Disabilities Act 1995

Dear Colleagues,

In the instant matter, the division bench of Justice S A Bobde and Justice M N Gilani of Bombay High Court has agreed that the case of a civil mechanical transport driver employed by the Indian Air Force who was sacked from his job after he was found to be colour-blind is covered under Section 47 of the Persons with Disabilities Act 1995 and as a result quashed the termination order of Pramod Sadashiv Thakre.

Under the Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995 - a benevolent legislation- an employee who acquires a disability during his service cannot be thrown out of his job. In case, he is unable to do the present work for which he was employed, it is the employer's duty to transfer him to another post or give him a supernumerary post.

Thakre was appointed as a civil mechanical transport driver in 2003. According to Thakre, he was found fit for the appointment on the basis of a civil surgeon's medical certificate, which declared him normal. Two years later in August 2005, his services were terminated on the grounds that he had been found to "suffer from colour-blindness". The CAT set aside the termination order, but the Union Ministry of Defence and the Indian Air Force approached the Nagpur Bench of Bombay High Court against the order of the Central Administrative Tribunal, Bombay Bench, Camp at Nagpur.

The Union of India claimed that Thakre could not have acquired the colour-blindness during his employment as it was congenital. The High Court, however, did not buy the argument, "Firstly, no medical evidence was placed on record to establish that colour-blindness can only be congenital and cannot be acquired.  Moreover, there is no evidence on record that Thakre was colour-blind when he was employed. The petitioners accepted the respondent's fitness by relying on the certificate granted to him which sets him as normal," the judges said while upholding the CAT order. The court said that the IAF did not administer any test to check if he was colour blind.

Judgement Included

Click here for the Judgement dated 24 Feb 2011 by the Central Administrative Tribunal in OA No.   2117/2006 titled Pramod Sadashiv Thakre Vs. Union of India & Ors.

Click here for the Judgement dated 19 October 2011 of the Hon'ble Bombay High Court Writ Petition No. 3620/2011, titled Union Of India vs Pramod Sadashiv Thakre