Supreme Court Allows Candidate with Muscular Dystrophy to Participate in NEET-UG 2024 Counselling

Court: Supreme Court of India

Bench: Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra

Case Title: OM Rathod Versus The Director General of Health Services and Others 

Case No: SLP(C) No. 21942/2024

Date of Judgement: 25 Oct 2024

Summary

In a landmark judgment, the Supreme Court of India on October 25, 2024, allowed a candidate with muscular dystrophy to participate in the ongoing NEET-UG 2024 counselling. The candidate, who has an 88% disability due to muscular dystrophy, had previously been disqualified from pursuing an MBBS degree under the National Medical Council (NMC) guidelines. These guidelines stipulate that individuals with muscular dystrophy must have a disability level below 80% to qualify for the MBBS course.

The Supreme Court bench, led by Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra, took into consideration an expert report suggesting that the candidate could successfully undertake the MBBS program with the help of assistive devices. The Court’s judgment is a significant moment in recognizing the rights of persons with disabilities in medical education.

Background of the Case

Muscular dystrophy is a progressive disease causing weakening and breakdown of muscles, which restricts physical activity. The petitioner, a NEET-UG 2024 candidate, achieved an impressive score of 601/720 despite the challenges posed by his condition. However, his 88% disability exceeded the threshold set by NMC guidelines, leading to his initial disqualification. The Bombay High Court previously upheld this decision, denying relief to the candidate.

Role of Expert Testimony

In a previous hearing, the Supreme Court invited Dr. Satendra Singh, himself a person with disability, Founder of Infinite Ability and an advocate for medical professionals with disabilities, to provide expert insights. Dr. Singh’s report concluded that, with assistive devices, the candidate could meet the requirements of the MBBS program. While the National Medical Council expressed some concerns over Dr. Singh’s expertise in muscular dystrophy specifically, it did not object to the candidate’s admission.

Justice JB Pardiwala, addressing the NMC’s concerns, advocated for a compassionate view, stating, “There are two reports now, give him a chance!”

Supreme Court's Decision and Observations

The Court’s decision allows the candidate to proceed with NEET-UG 2024 counselling but notes that the order is case-specific and should not be treated as a legal precedent. Chief Justice Chandrachud clarified, "This order is passed in the facts and circumstances of the case of the petitioner and shall not be construed as a concluding express opinion by this Court on the issues of law that may arise in an appropriate case."

The Court further pointed out a gap in the assessment of disability with assistive devices, referencing the Government of India’s Gazette notification (March 2024), which lacks guidelines for disability evaluation in such contexts. This observation may potentially lead to regulatory improvements in assessing persons with disabilities seeking admission to educational and professional courses.

Advocacy for Inclusive Medical Education

The ruling underscores the Supreme Court’s evolving stance on inclusivity in medical education. Recently, the Court had ruled that a benchmark disability should not be a sole disqualification for MBBS admission. This order reinforces the principle that capable students with disabilities deserve equitable opportunities, provided that their needs for assistive support can be reasonably accommodated.

Moving Forward

The Supreme Court’s directive in  highlights the pressing need for inclusive education policies, especially in fields like medicine, where physical challenges often lead to discrimination. This case marks another step towards a more inclusive educational system that acknowledges the potential of individuals with disabilities to contribute meaningfully to society.

This decision resonates with advocates for disability rights, as it reflects the Court’s willingness to adapt legal interpretations in response to technological and social advancements, especially in assistive devices. The judgment has set a powerful example, encouraging policymakers to create more inclusive opportunities for individuals with disabilities in medical and other professional fields. 

This case serves as a reminder that the pursuit of equality is ongoing, with each judgment adding strength to the movement for inclusivity in Indian education and beyond.

Judgement: OM Rathod Versus The Director General of Health Services and Others [SLP(C) No. 21942/2024]

Supreme Court seeks Centre's resonse to a plea which sougth quanum of assistance to PwDs 25% higher than those given to others as per section 24(1)

A bench headed by CJI Chandrachud issued notice to the Centre seeking its response on the petition filed by Delhi-based organisation 'Bhumika Trust' and posted the matter for hearing after four weeks

The Supreme Court today asked the Centre to respond to a plea which sought that quantum of assistance to persons with disabilities should be 25 per cent higher than those given to others under similar social welfare schemes.

A bench headed by Chief Justice D Y Chandrachud issued notice to the Centre seeking its response on the petition filed by Delhi-based organisation 'Bhumika Trust' and posted the matter for hearing after four weeks.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, requested Additional Solicitor General Aishwarya Bhati to assist the apex court in the matter.

The top court noted the petitioner has relied on the proviso to section 24 (1) of the Rights of Persons with Disabilities Act, 2016.

Section 24 of the 2016 Act deals with social security and section 24 (1) says, "The appropriate government shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the community: provided that the quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least 25 per cent higher than the similar schemes applicable to others." Jayant Singh Raghav, president of the organisation, told the bench that proviso to section 24 (1) of the Act provides that quantum to be provided to the persons with disabilities needs to be 25 per cent additional to the others under similar social welfare schemes.

"Which are the schemes in respect of which you are claiming a 25 per cent enhancement," the bench asked.

Raghav referred to the disability pension given by different states.

"Presently, instead of issuing notice to all the states, we will issue notice only to the Union of India and we will then see what the Union Government has to say," the bench said.

Source: Unedited stroy from syndicate feeds

SC unhappy with Govt. steps for persons with mental disabilities

This update on a new PIL concerning the plight of persons with mental disabilities filed before Supreme Court from Telegraph

SC scans steps on mentally disabled

Our Legal Correspondent
New Delhi, March 26: The Supreme Court today directed the central government and all states and Union territories to explain the measures they have taken for the welfare of mentally challenged people across the country.

The court said it appeared that not much had been done so far, although the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, mandates governments to take adequate steps for their welfare.

"We are disposed to think that all the state governments have a definite role to see that the act is properly implemented and the persons under disability, which includes... mentally challenged persons, are taken care of as commanded by the act," a bench of Justices Dipak Misra and P.C. Pant said.

The court passed the order while dealing with a public interest petition that had complained about the pathetic living conditions in Asha Kiran, a government-run care home in Delhi for mentally challenged people.

The bench said it was "absolutely conscious" that this case had "arisen from an order" passed by Delhi High Court relating to the home. Yet, the "pathetic situation of this category of persons which have been highlighted before us in other states cannot be ignored", it said.

"On the contrary," the bench added, "we are obliged to think, occasion has arisen so that there can be a comprehensive study of the situation where this class of people are treated with dignity, respect and, as far as practicable, feel a part of the main stream of life."

The bench said it was "not oblivious of the fact" that in every case, it may not be possible "but there has to be an attempt to identify the possibility".

"We have been apprised at the Bar that the said effort has not been made and, if made, that is not adequate enough to meet the real challenge."

The bench noted that under Section 25 of the act, the government concerned and local authorities are duty-bound to take certain steps to prevent occurrence of disabilities and prepare a comprehensive education scheme providing for transport facilities and supply of books, besides financial incentives for parents or guardians.

"In view of the aforesaid, we direct the impleadment of the Union of India (and) all the states and Union territories. This court hopes and trusts that the Union of India and all the states and Union territories shall respond without taking recourse to any kind of subterfuge and none should take (an) adversarial position for the present cause has its own sacrosanctity," Justice Misra said in his order while fixing July 8 for the next hearing.

Source: The Telegraph

Rights of Students to see their answer sheets confirmed by SC

Dear Friends,

The Supreme Court has finally confirmed that all students have a rights to inspect and get a photocopy of their answer sheets after their evaluation under the RTI. I see this particularly coming handy to lakhs of students and candidates with disabilities, whose results are often withheld by the examining bodies in an attempt to thwart their induction/recruitment.

I have several of such experiences, where my clients with disabilities were subjected to this silent discrimination. And it was only after our seeking the details of marks obtained under RTI Act, that the malady came to fore. But, the boards did not allow us to see our copy whether what they said was correct. This is going to be a great deterrent for the authorities/examining bodies especially in the recruitment examinations, to discriminate against persons with disabilities or practice a biased approach.

regards

SC Vashishth   

To read from source click the link below:

Student has right to see evaluated answer sheet:SC

They have the right to inspect and photocopy their answer sheets after their evaluation under the Right to Information (RTI) Act

Submitted on 08/10/2011 - 12:16:47 PM

New Delhi: The Supreme Court has said that students have the right to inspect and photocopy their answer sheets after their evaluation under the Right to Information (RTI) Act.

The apex court bench of Justices RV Raveendran and AK Patnaik allowed the disclosure of the answer sheets of the examination conducted by boards, universities, institutions and public service commissions, when it upheld the Calcutta High Court judgment that permitted the students to inspect their answer sheets.

The apex court pronounced its verdict saying that evaluated answer sheets come under the definition of "information" and reiterated the duty of the public authority under the transparency law to allow maximum disclosure as envisaged by the RTI Act.

The case reached the apex court from high court which by its March 28, 2008, judgment permitted a student, Pritam Rooj, to inspect his answer sheets. Rooj was a student of mathematics in Presidency College.

In 2006, when he sat for the first part of degree examination he secured 52 per cent marks. In the second year he got 208 out of 400 marks and got just 28 marks out of 100 in fifth papers. Upon seeking revaluation, his marks increased by four in the fifth paper.

He contended that his poor marks stood in the way of his getting admission in post-graduation course and applied to inspect his mark sheet under the RTI law which was rejected.

The university said that the answer sheets of an examinee cannot be shared. The High Court overruled it. The order was challenged in apex court by the Central Board of Secondary Education (CBSE) and the West Bengal Board of Secondary Education, among others.

OBC seats can’t be converted into general ones

A Supreme Court bench said conversion of seats reserved for OBC to general category seats in central educational institutions was not permissible

New Delhi: Conversion of seats reserved for students belonging to the Other Backward Classes (OBC) to general category seats in central educational institutions was not permissible, the Supreme Court has ruled.

The apex court bench of Justice RV Raveendran and Justice AK Patnaik said this while reserving its verdict on a petition by PV Indiresan, former Director of Indian Institute of Technology, Chennai.

The petitioner challenged the September 7, 2010, verdict of the Delhi High Court which said that the minimum eligibility marks for admission under the OBC category would be 10 per cent below the minimum eligibility marks fixed for general category students.

The process to take away the OBC seats for conversion into general category seats was not permissible, Justice Raveendran said, reports IANS.

The court said this when senior Counsel KK Venugopal, appearing for the petitioner, said that in case the court decided the issue against him then it must ensure that 50 per cent seats earmarked for general category students were not encroached upon by OBC candidates even if some of them entered a university by taking the merit route.

When a lawyer referred to Justice Raveendran's observation that rules of the game couldn't be changed after its start, the judges said that what they meant was that it had to be decided in advance at what point the process of the admission of the OBC students under the reserved category would start and what would be the cut-off marks.

Venugopal sought to make a distinction between the reservation for the Scheduled Castes/Scheduled Tribes and the OBC and said they could not be placed at par because social ostracism suffered by the former did not visit the latter.

Justice Patnaik asked Venugopal that when the law used the same language for extending reservation to the OBC as it did in the case of SC/ST, then how he could interpret it differently.

While reserving its verdict, the court gave all the contending parties time till Monday to submit their written submissions.

Private Organisations not bound by Disability Act: Says Supreme Court

Dear Friends,

This post is with respect to a recent judgement by Hon'ble Supreme Court in  Civil Appeal No. 1886/2007 titled Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Ors with another Civil Appeal No. 1858/2007 titled Fancy Rehabilitation Trust and Anr. Vs. Union of India and Ors.

The employee Mr. Padhye acquired hearing impairment during the period of service and was terminated by the employer. Employee got a favourable suggestion from Disability Commissioner Pune for his re-instatement under Section 47 of Disabilty Act which says:

“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:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

The word "Establishment" has been defined by Section 2( k)( i) of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 defines the word "Establishment as :-

"Establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments of a Government;

On a simple reading of the definition of the word "establishment", it is clear that any organisation established under a central, provincial or state act will be an establishment. Thus any organisation registered and established under the provisions of the Societies Registration Act or the Indian Trust Act or The Companies Act should ordinarily get covered under this.

However over insistence here on the Government share/ownership or control indicates that the intention of creators of this statute was to only include organisations which are largely government or local authorities created under central or state statutes or has a government stake of 51% (read section 617 of Companies Act which has been specifically referred to indicate that this has to be read in exclusion of the Companies Act). Also the heading of Section 47 of Disability Act is "Non-discrimination in Government Employment" which clarifies the intention of the legislature that it did not wanted to include private companies under the word "establishment".

The Hon'ble Supreme Court has indicated that similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant "government companies".  The reason put forward by the Court is "A ‘company’ is not ‘established’ under the Companies Act. An incorporated company does not ‘owe’ its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a ‘company’ is incorporated and registered under the Companies Act and not established under the Companies Act.

It further clarifies that inclusion of only a specific category of companies incorporated under the Companies Act, 1956 (Govt. Companies registered under Section  617) within the definition of ‘establishment’ necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of ‘establishment’.

A counter argument to this would be that while IPC and Prevention of Corruption Act are punitive in nature and should be interpreted in restrictive and strict sense, the Disability Act is a benevolent, socio-economic and empowering legislation and must be interpreted in a way which favours the marginalized section of the society.

However, now a decision of the learned judges of the Supreme Court is out here clarifying the meaning of word establishment, removing the clouds of doubt on the existing legislation and leaving no room for its benevolent interpretation in future. Therefore, it would be worthwhile now that the disability activists address this issue in the New Law that is being suggested and be categorical that the provisions of the disability act would apply to all establishment including those private initiatives which are registered under any of the Central or State statutes like companies, trusts, societies and cooperatives etc.

This has larger force of argument because when a labour legislation related to PF, Minimum Wage etc. is applicable to private employers with a certain number of employees then why can't disability legislation be applicable - for the objective of both legislations is to empower the weak, vulnerable and marginalized members of our society?

On second thought, it comes to my mind as to why the exploitation of an employee with disability by an employer could not be taken up through labour legislations read in conjunction with disability Act and why alone under Section 47 of the Disability Act? The last line of the judgement - "This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law." -  gives a hint that it could have perhaps been better fought under labour legislations. 

Here is the news report on the issue from the Mail Today.

regards

SC Vashishth

Advocate-Disability Rights

09811125521

subhashvashishth@gmail.com

SC says disability Act not binding on private firms

(To read from source in (PDF 2 MB) 

Mail Today, 01st April 2010

THE SUPREME Court on Wednesday held that a law enacted in 1995, to prevent exploitation of the disabled by their employers, could not be enforced on the private sector.

A three- judge bench, comprising justices R. V. Raveendran, R. M. Lodha and C. K. Prasad, said the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, did not cast any obligation on private companies and schools.

The bench rejected a contention that the Act covered all companies incorporated under the Companies Act.

A private company had approached the apex court, against a high court order holding that the disabilities commissioner had jurisdiction over any company incorporated under the Companies Act. The high court had said it could direct the company to reinstate an employee who was dismissed on account of disability.

The second appeal was filed by a trust — on behalf of the employee — which had approached the apex court after the high court refused to pass any such direction to the company and admitted that the first judgment was incorrect.

Opposing the company’s appeal, the dismissed employee pointed out that section 2( k)( i) of the disability Act brought “ a corporation established by or under a central, provincial, or state Act” within its ambit.


But the apex court said a similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant government companies.

Contested Motherhood - Ms. Jo Chopra, LRF

Dear Friends,


Ms. Jo Chopra, Latika Roy Foundation, Dehradun is a fond mother and activist for the inherent human rights of those experiencing disabilitiies and particulary intellectual disabilities. This is subsequent to my earlier post reflecting my senior colleague Collin Gonsalves, Advocate, Supreme Court of India presenting the legal views and social implications of the judgement.


Click here to read from source: The Hindu - Contested motherhood
JO CHOPRA

Can the State order an intellectually-disabled person to have an abortion even though she wants to have the baby? A look at some of the issues regarding sexuality and disability…

What kind of sexuality education do children with disability need? Do people with disability even have sex lives? Do they have the right to reproduce and raise their own babies?

Of the issues confronting people with disability, sexuality is the most charged. A recent case brought many of the most compelling strands of this complex tapestry together and it took the Supreme Court to settle it.

A young woman with a mental handicap, living in a government institution as a State ward, had been raped repeatedly by two guards there. At 19, she became pregnant. When her condition was detected, the State determined she should have an abortion. The woman insisted she wanted to keep the child.
The matter went to court and it was decided she should be compelled to have the abortion. An advocate for the woman filed an appeal in the Supreme Court where, given the urgency, a speedy verdict was rendered: no woman, even one with a mental handicap, can be compelled to have an abortion.

Many people weighed in on this case but many important issues were ignored or not analysed:
A disabled woman was raped. People with mental handicaps are statistically more likely to be sexually abused. They are accustomed to being dependent on adults for many of their basic personal needs and submissive in their response to them. Vulnerable People with developmental disabilities may lack the social skills to assess a dangerous situation and the judgment to get out of it or raise an alarm. They are exposed to more “caregivers” than typically developing people. The more people one is intimately involved with, the higher the chance that one will be an exploiter.

The woman became pregnant. People with developmental disability are often assumed to be both asexual and infertile. While some disabilities do have an associated infertility component (only around 50 per cent of women with Down Syndrome, for example, are fertile), most otherwise healthy adults have the same chance of being able to reproduce as anyone and many have the same sex drive as normal people.

Her pregnancy was ordered to be terminated by the High Court, in spite of her insistence that she wanted the baby. Here is the heart of the issue. Can a person with an intellectual disability make a decision? Is intellectual capacity required for parenthood? What about the baby’s right to life? Is the State justified in forcing someone to undergo an invasive procedure?

Many who agreed with the court’s decision nonetheless believed the baby would have to be taken from the mother and reared by the State. It’s important to look carefully at biases and assumptions here.

Are we sure that a woman with a cognitive disability is incapable of taking care of her child? In theory, there is no reason to assume she couldn’t manage, albeit with support. Most able women need support to bring up their babies too. Motherhood is demanding and a high IQ may be one of the least important pre-requisites. As long as the mother is loving and attentive, as many mentally handicapped women are, and, crucially, has support from the community, a baby could prosper in her care.

Granted, that baby might not get the perfect intellectual environment, but is academic success the only goal in life? Does it guarantee happiness? A child brought up by a mother with intellectual impairment might still be deeply loved and cared for and might be satisfied and content — not things to be lightly discarded.

In spite of such logic, arguments were made about the State’s compelling interest in seeing that this child not be born. Because the baby would have to be brought up by the State, better not to allow it to be born in the first place. This reasoning is both specious and dangerous.

Many people who are not wards of the State might still be judged incompetent to bring up children. The socialite more interested in parties than in a baby’s needs, the workaholic whose ambition supersedes her parenting responsibilities, the habitual drinker, the poor woman living hand to mouth, the child bride, the list goes on.


Are we prepared to terminate the pregnancies of such women? The Supreme Court said no. Human rights cannot be granted to some people and denied to others without ensuring that eventually they will be denied to all.

What if the baby were born with a disability, as many opponents of the Supreme Court decision hinted darkly was likely?The real issue

What if it were? And here is the true heart of the matter. Disability is, I believe, “The Last Frontier” in the battle against discrimination and injustice. While people are indeed denied basic human rights for all sorts of reasons all over the world, no civilised person ever tries to justify it. When women are raped, when prisoners are tortured, when children are abused, when war crimes are committed, the civilised world recoils in horror. We speak out against human rights violations wherever we see them and so we should and so we must. Except when it comes to people with disability.

Abortion of girls because they are girls is called what it is: murder, brutality. Abortion of babies with disability is routine, sanctioned and worse, expected. In the U.S., it is estimated that 95 per cent of babies detected with Down Syndrome are aborted. Women who elect to have their babies anyway are made to feel irresponsible, reckless and unfairly burdening society. Chilling decisions
Eminent philosophers (Dr. Peter Singer of Princeton is one example) speak openly of the moral right of parents to abort handicapped babies before they are born and afterwards too. At the moment, it is acceptable only in early infancy, before parents have gotten “attached”. But as ethicists admit, if it’s acceptable to abort a disabled baby before birth, what’s wrong with doing it later? This opens the door to chilling possibilities.

Sexuality offers a prism through which we can better understand ourselves, the people around us and the values we hold most dearly. When we use it to look at disability, we may find, to our dismay, we are not the people we thought we were. Although we speak of tolerance and diversity, many of us are uncomfortable with people with disabilities making choices in their lives, distressed by the idea of them having sexual relationships and appalled by the vision of them bringing more people like themselves into the world.

The Last Frontier. It’s later than we think.

The writer is the Director of the Latika Roy Foundation ( http://www.latikaroy.org/) in Dehradun, a Resource Centre for People with Special Needs.

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

• The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.

• In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.

• Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.

• The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.

• Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.

• Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
  Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.

• If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.

• However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).

• Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.

• However, in the instant case, the issue was of denial of promotion and not saving the job.
  As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.

• However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.

• However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.

• The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types, the way PWD Act does, Hence, it perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.

• Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to declare him to be 'medically unfit' for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.

The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate