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:

Delhi HC holds KVS recruitment advertisement as unsustainable for denying reservation to blind persons

Court: Delhi High Court

Bench:  Hon'ble Satish Chandra Sharma, Chief Justice, and Hon'ble Justice Sanjeev Narula

Caste No: W.P.(C) 9520/2018 

Title: National Federation of Blind Vs. Kendriya Vidyalaya Sangathan & Others

Date of Judgement: 16 October 2023

Neutral Citation: 2023: DHC: 7551-DB

Brief:

The Delhi high court termed a recruitment advertisement issued by Kendriya Vidyalaya Sangathan (KVS) as unsustainable as it excluded reservation for blind persons from the post of principal in a judgement dated 16 Oct 2023.

The court said that every act of exclusion that has the effect of compelling a person with disabilities out of a race for gaining employment without their fault is an assault on their dignity . 

A bench opined that the advertisement issued by the KVS in August 2018 for the posts of principal, vice-principal, PGTs, TGTs, librarian distinguished PwDs and had the effect of excluding them from the race of recruitment as the distinction was purely on the basis of disability.

“The impugned advertisement distinguishes the persons with disabilities from others and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction is purely on the basis of disability. The advertisement has the effect of excluding the persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision. It may be noted that an act of discrimination is not only a denial of the promise of equal protection before the law. Rather, every act of exclusion is an assault on the dignity of a person. More so, when the exclusion has the effect of compelling the persons with disabilities out of a race for gaining employment, without any fault of theirs. Instead of providing an equal space to grow, we have been compelling the persons with disabilities to prove, time and again, that they are capable of a lot more than we think,” said the bench in its verdict.

The court also said, “We may usefully note that the power of identification of posts is bound by a procedure, which, amongst other things, involves consultation with experts including persons with disabilities. The persons with disabilities are the direct stakeholders in this exercise and the legislature has aptly carved out a provision for a consultative exercise with such persons. It is a manifestation of the principles of natural justice and there can be no deviation from the statutory procedure. Exclusion of a post, without engaging in a consultative exercise, shall also be violative of the principles of natural justice.”

The bench also opined that the Sangathan at the stage of recruitment and advertisement of vacancies was duty bound to reserve 4 % of the total number of vacancies, inclusive of vacancies against identified as well as unidentified posts.

The court cautioned that it was impermissible to exclude subjects which cannot be taught by PwDs at the time of reservation of vacancies.

“Once recruited, appointments can be made against the posts identified as suitable for respective categories of persons with disabilities. There is no power with the respondent or its committee to revisit and cut short the list notified by the government. The process of identification or its review is to be carried out by the appropriate government only. Further, the said exercise is to be carried out after constitution of an expert committee with due representation of persons with benchmark disabilities,” said the court directing the KVS to reserve the post of principal for blind persons, conduct an audit of the total number of vacancies in the establishment and prepare a vacancy based roster for recruitment of PwDs within three months.

“The rights belonging to the persons with disabilities are meant to secure inclusivity and human dignity. Such rights, although statutorily enacted, find their roots in the fundamental rights of life, equality and non-discrimination, as enshrined in the Constitution. The guarantee of equal opportunity to all equally extends to the persons with disabilities and while interpreting the benevolent provisions of the statutes in this regard, the court must be mindful of the same,” the court also said.

Read the Judgement in W.P.(C) 9520/2018 below:

Bombay HC directs Police Cop to compensate an NDA Professor for a false probe against him for alleged fake disabilty certificate

Court: Bombay High Court

Bench: Hon'ble Justice Nitin W. Sambre & Hon'ble Justice R.N. Laddha

Case No. – Writ Petition No. 1124 of 2018 

Case Title – Dr. Kamal Chandra Tiwari v. State of Maharashtra & Anr.

Date of Judgement: 04 Aug 2023

Cited as: 2023:BHC-AS:29209-DB

Case brief:

Slamming a police officer for falsely implicating a disabled professsor of the National Defence Academy (NDA) by carrying out a false investigation for a genuine disability certificate, a division bench of the Bombay High Court has quashed and set aside the FIR and consequential proceedings against the staffer and ordered compensation of Rs. 25,000 to be paid to one Dr. Kamal Chandra Tiwari, an Assistant Professor at the National Defence Academy, Pune falsely prosecuted for producing fake disability certificates.

The court ordered a compensation of Rs 25,000 to be paid to the employee, to be recovered from the salary of the investigation officer. The officer had ignored communication from the hospital verifying the employee's disability certificate. The employee's advocate stated that the officer's actions were vindictive.

“Such an act of the investigating officer (IO)... can be termed as causing mental agony, lowering down dignity and ill-treating the petitioner, an academician (sic),” said Justices Nitin Sambre and R N Laddha in the August 4 order released on Thursday.

They awarded compensation of Rs 25,000 to Kamal Tiwari and directed it to be paid to the Maharashtra State Legal Services Authority within six months. The state will recover the amount from the salary of the IO, Anand Pagare, who is currently posted as inspector at Police Training Centre, Daund.

The NDA had sent Tiwari’s 41% disability certificate issued by Sassoon Hospital, Pune, on December 1, 2012, to the facility for verification. The hospital said it couldn’t trace the original record, prompting the NDA to lodge a police complaint in May 2016 that Tiwari, who had joined as assistant professor (sociology), had produced a forged certificate. Tiwari was booked under Sections 420 (cheating), 467 (forgery), 468 (forgery for purpose of cheating), and 471 (using as genuine a forged document) of the IPC.

In September 2016, the hospital wrote to the IO Pagare that the original record had been traced.  The investigating officer Pagare intentionally and deliberately overlooked the same and purely with an intention to initiate malafide prosecution has charge-sheeted the petitioner in July 2017. 

In June, the judges issued a contempt notice to IO Pagare after he “intentionally” ignored their query on whether he had looked into the record. In his reply, Pagare said he had recorded the statements of two doctors who denied signing the certificate. He said it was his first posting. The judges said he was expected to verify the certificate’s genuineness.

Tiwari’s advocate Jagdish Reddy said he suffered because of Pagare’s vindictive attitude. Pagare’s advocate Satyavrat Joshi said he regrets the bonafide mistake and tenders his unconditional apology to the court and to Tiwari.

"Such act of the Investigating Officer, in our opinion, can be termed as causing mental agony, lowering down dignity and ill-treating the petitioner, an academician. The prosecution initiated by the said officer can be termed as malicious which has not only caused harassment to the petitioner but also immeasurable anguish. The fact that the petitioner, a handicap person is an academician having good repute an employee of National Defence Academy, Pune and the acts done with clandestine manner by the Investigating Officer, in our opinion, warrant award of compensation as has been prayed by him. Counsel for the petitioner magnanimously stated that he is not interested in the amount of compensation which can be made over to the Legal Services Authority, however, the Investigating Officer should realize his mistake which should be pinching for bias and malafide criminal prosecution against the petitioner. In the backdrop of aforesaid observations, we deem it appropriate to award compensation of Rs.25,000/- by Mr.Anand Pagare, Investigating Officer to be paid to the Maharashtra State Legal Services Authority within period of six months from today." observed the bench.

The bench discharged the contempt notice with the following obervations:

"As far as contempt notice is concerned, we hereby warn the investigating officer Mr Anand Pagare, Police Inspector presently attached to Police Training Centre, Nanvij Daud, Pune to be more diligent in carrying out his duty as a police officer. With above warning, we discharge the contempt notice."

Read the Order:

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

Accessibility in residential societies remains a matter of concern; petitioner, a blind person litigates to seek justice.

Court: Delhi High Court 

Bench: Hon'ble Justice V. KAMESWAR RAO,  Hon'ble Justice ANOOP KUMAR MENDIRATTA

Case No.: WP (Civil) No. 7642/2022

Case Title: Jayant Singh Raghav v Vice Chairman, Delhi Development Authority, & Ors.

Next Date of Hearing: 06/10/2023

Case Brief:

The petitioner Jayant Singh Raghav, is a person with a disability has raised this litigation alleging rights infringement of individuals with disabilities in accessing suitable facilities within residential communities against the Chandanwari Society (a residential housing society) with Delhi Development Authority (DDA) as the resondents. 

The petitioner emphasizes what he perceives as a violation of the rights of persons with disabilities to access appropriate facilities within residential communities. He contends that the environment lacks provisions tailored to his specific needs, obstructs equal opportunities, and disrupts harmonious communal living.

In response, the Chandanwari Society, represented by the respondents, counters these claims by asserting their consistent efforts to ensure unimpeded accessibility for the petitioner. The Society argues that it has taken substantial measures to establish a barrier-free environment within the apartment complex.

Before approaching the high court, petitioner had lodged a complaint with the State Commissioner for Persons with Disabilities, Government of NCT of Delhi, citing the society's perceived inaction. The complaint pointed out a violation of Rule-15 of the Rights of Persons with Disabilities Rule, 2017. A subsequent directive highlighted shortcomings and mandated rectifications. However, the complaint was closed without comprehensive justification by passing an order.

Unsatisfied with the complaint's closure, the petitioner turned to the Hon’ble Delhi High Court, filing a writ petition under Article 226 of the Constitution of India. The grounds for the petition include alleged breaches of fundamental rights under Article 14, 19, and 21 of the Constitution. The petitioner also raised concerns about non-compliance with the "Harmonized Guidelines and Space Standards for Barrier-free Built Environment for Persons with Disabilities and Elderly Persons" 2016.

Differing viewpoints emerged regarding the application of the Unified Bye-Laws where the petitioner contends that the society's layout and infrastructure do not conform to the Unified Bye-Laws, 2016. However, the respondents assert that the apartment complex was constructed under the Unified Bye-Laws, 1983, making substantial reconstruction impractical after 33 years. Despite this, the respondents assert their ongoing commitment to enhance accessibility within existing structural constraints.

Mr. Raghav is critical of the changes implemented by the society, suggesting that they are cosmetic and, in some cases, potentially hazardous to disabled individuals. He expresses concerns over the safety and effectiveness of the alterations, arguing that hurried modifications might inadvertently lead to harm.

Throughout the legal process, the petitioner filed various ancillary applications alongside the primary writ petition, including inter-locutary application, early hearing application, and urgent application.

The petitioner further claims that the modifications initiated by the respondents are confined to Tower-3 of the society, where he resides. However, he contends that the issue extends beyond his personal access to encompass the entire society. He emphasizes that the concern is not solely about Common area accessibility of the block where the petitioner resides but pertains to the community's overall inclusion.

In conclusion, the case underscores the intricate interplay between an individual with disabilities striving for equitable access and a residential society working within practical limitations to achieve accessibility standards. The legal journey encompasses a range of stages, from pre-court complaints to constitutional writ petitions, highlighting the petitioner's pursuit of enforcing rights. Consequently, the petitioner has filed a Special Leave Petition (SLP) before The Hon’ble Supreme Court seeking an expedited grant of the interim relief as prayed for.