MOHAMED IBRAHIMversusTHE CHAIRMAN & MANAGING DIRECTOR & ORS.

                 [2023] 13 S.C.R. 924 : 2023 INSC 914



                           CASE DETAILS

                        MOHAMED IBRAHIM
                                    v.
      THE CHAIRMAN & MANAGING DIRECTOR & ORS.

                     (Civil Appeal No.6785 of 2023)

                          OCTOBER 16, 2023.
      [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]

                             HEADNOTES

      Issue for consideration: The appellant is aggrieved by a judgment
of the High Court, which dismissed his petition, claiming arbitrariness in
the declining of his candidature as Assistant Engineer (Electrical) by the
Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO
Corporation or employer), on the ground that he was colour blind.
     Service Law – Disability – Colour blindness – After the medical
examination, the appellant was informed that he had colour defective
vision (colour blindness) – Corporation cancelled appellant’s selection
– Appellant’s services were terminated – Propriety:
     Held: TANGEDCO, has nowhere indicated in express terms, that
colour vision deficiency, in any form or degree, is a bar to employment
for AE – The facts of the 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 the Rights of Persons with Disabilities Act, 2016 – 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) of the 2016 Act – Reasonable accommodation thus,
is “appropriate modifi cation and adjustments” that should be taken

                                   924
 MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING 925
              DIRECTOR & ORS.

by the employer, in the present case, without that duty being imposed
with “disproportionate or undue burden” – TANGEDCO- the employer
expresses its willingness to accommodate the appellant – However,
the post offered, i.e., Junior Assistant by the employer, is inconsistent
with the appellant’s qualification which cannot be offered to him – The
hierarchy of posts in the corporation 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 defi ciencies or impairments – Therefore,
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 service,
or his appointment was cancelled, and accommodate him in a suitable
department, where he can be given appropriate responsibilities. [Paras
20, 25, 26, 27, 28]

       LIST OF CITATIONS AND OTHER REFERENCES

     Jeeja Ghosh v. Union of India [2016] 4 SCR 638; Ravinder Kumar
Dhariwal v. Union of India [2021] 13 SCR 823; Vikash Kumar v. Union
Public Service Commission [2021]12 SCR 311 – relied on.
     Tusharkumar Karsanbhai Vinzuda v. State of Gujarat SCA
No.8611/2020, decided on 08.02.2022; Bhavesh Khimabhai Pandit v. State
of Gujarat 12 SCA 2916/2022, decided on 11.02.2022; Tushar Karsanbhai
Vinzubhai v. Paschim Gujarat Vij Co. Ltd. C/LPA 331/2022, decided on
23.09.2022; Nandkumar Narayanrao Ghodmare v. State of Maharashtra
[1995] (Supp 4) SCR 565; Pranay Kumar Poder v. State of Tripura [2017]
2 SCR 797; Ashutosh Kumar v. Film and Television Institute of India [2022]
16 SCR 1094 – referred to.
     Sutton Et Al. v. United Air Lines, Inc 527 US 471 (1999) – referred to.
926              SUPREME COURT REPORTS                                 [2023] 13 S.C.R.



         OTHER CASE DETAILS INCLUDING IMPUGNED
                ORDER AND APPEARANCES
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.6785 of 2023.
     From the Judgment and Order dated 30.07.2021 of the High Court of
Judicature at Madras at Madurai in WAMD No.1506 of 2021.
       Appearances:
   A Velan, Ms. Navpreet Kaur, Mritunjay Pathak, Aditya Raj Singh,
Mehmood Umar Faruqui, TS Nanda Kumar, Advs. for the Appellant.
    T. Harish Kumar, Navneet Dugar, Subham Kothari, Ms. Preethi G,
Advs. For the Respondents.
         JUDGMENT / ORDER OF THE SUPREME COURT

                                     JUDGMENT

       S. RAVINDRA BHAT, J.
      1. Leave granted. With consent the appeal was heard finally. The
appellant is aggrieved by a judgment of the Madras High Court1, 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.
     2. The brief facts of this case are that the appellant was appointed as
Assistant Engineer (Electrical) by the Superintendent’s Office, Karur in
20152and he joined the services on 31.3.20173. The corporation informed4


1     WA (MD) No. 1506/2021 dt. 30.7.2021.
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.
    MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                           927
        DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

the appellant about his selection and asked him to report to office of the
Superintendent, Karur on 15.04.2017. Later, he was asked to produce a
Physical Fitness Certificate from the Senior Civil Surgeon Government
Hospital, Kumbakonam after medical examination. After the examination,
the appellant was informed that he had colour defective vision (colour
blindness). By outpatient receipt (dated 15.04.2017) he was referred to
Assistant Surgeon, Govt. Hospital, Musiri, Trichy District. The Asst.
Surgeon confirmed that he had colour blindness and referred him to
the Medical Board/ Ophthalmology department of MGM Trichy. The
Superintendent’s Office at Karur wrote letter dated 31.10.2017 to the
Medical Board, Thanjavur Medical College Hospital, requesting the
appellant’s medical examination and a report based on that examination.
The Regional Medical Board (hereafter “RMB”) asked the appellant to
appear for medical examination; he was told by the medical officer that the
report would be forwarded to the corporation. A report dated 23.02.20185,
from RMB, Thanjavur was sent to the respondent, stating that: “ .... Fitness
cannot be given for the patient since norms regarding colour vision not
provided by the employer (TNEB)”.
      3. Aggrieved, appellant approached the Madras High Court, which
by order dated 11.03.20196 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 appellant’s selection, pursuant to the medical report dated
5.12.2019. The appellant’s services were terminated with effect from
14.05.2020.
      4. Aggrieved, the appellant approached the Madras High Court7
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:



5   bearing No. 13278/MB/2017.
6   In WP(MD)No. 2255/2019.
7   W.P.(MD) No.15115 of 2020.
928           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


      “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’.”
   MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                             929
       DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

      5. Aggrieved by the above single judge order of the High Court, the
employer- TANGEDCO, preferred writ appeal8 before the Division Bench
of the High Court. The bench was of the opinion that employer had taken
all relevant facts into consideration and having regard to the nature of the
duties to be discharged in relation to the post i.e., AE by the appellant and
observed:

     “7. All that TANGEDCO communicated to the petitioner was that
     the special committee constituted to look into the petitioner’s case
     had opined that the petitioner would not be fit to discharge the duties
     involved in such post. There is always a presumption that a statutory
     body or an authority answering to that description under Article
     12 of the Constitution would have acted in a reasonable manner
     and would have taken relevant considerations into account before
     passing an order or arriving at a decision. While such presumption
     may be rebuttable, the writ petitioner does not indicate any manifest
     arbitrariness in the impugned decision of TANGEDCO for the Court
     to perceive the same to be grossly disproportionate to the condition
     that the writ petitioner suffers from or the handicap that accompanies
     such condition.”
      6. Aggrieved, the appellant approached this court under Article 136
and argued that the initial notification9 for the post did not specify any
qualifying criteria with regard to vision or colour blindness. Therefore,
it was submitted that the absence of any specific qualifying criteria in the
notification, TANGEDCO’s action preventing the appellant from joining his
duties is arbitrary and illegal. It was further argued that, following the High
Court order dated 11.03.201910, 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



8 W.A.(MD) No.506 of 2021.
9 No. 1/2015 dated 28.12.2015
10 In W.P.(MD)No. 2255/2019.
930          SUPREME COURT REPORTS                          [2023] 13 S.C.R.


could not perform his duties. The appellant relied upon the report of Aravind
Eye Hospital and Post-Graduate 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 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
     MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                            931
         DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

degree, and that “the promotional avenues for the post of Junior Assistant/
Administration are Assistant/Administration, Administrative Supervisor,
Assistant Administrative Officer, Administrative Officer and Senior
Administrative officer and all these posts does not have any Technical,
colour related, electrical live environment nature of work.”
      Contentions
       10. TANGEDCO relies upon two single judge decisions of the Gujarat
High Court (Tusharkumar Karsanbhai Vinzuda v. State of Gujarat11 and
Bhavesh Khimabhai Pandit v. State of Gujarat 12) and a Division Bench
judgment in Tushar Karsanbhai Vinzubhai v. Paschim Gujarat Vij Co. Ltd.13.
In these three judgments, Gujarat High Court dealt with colour blindness
of candidates, who had applied for the post of Technical Assistants, in
electrical utilities [much like TANGEDCO] and after considering the
report of the experts upheld the rejection of application for recruitment
on the ground that the post required its holder to “deal with live wires,
especially during installation where the colour of the wires is of prime
importance”. Reliance was also placed on Sutton Et Al. v. United Air Lines,
Inc.14 where the claimants had possessed poor visual acuity (20/200 on one
eye and 20/400 in another eye). The appellants had sought employment as
commercial airlines pilots which were declined based upon federal aviation
administration certification qualifications. The standard prescribed was a
vision of 20/100. The US Supreme Court, upon an interpretation of the term
“disability” under the relevant law15 held that it was a condition which was
a physical or mental impairment that substantially limits 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


11   SCA No.8611/2020, decided on 08.02.2022.
12   SCA 2916/2022, decided on 11.02.2022.
13   C/LPA 331/2022, decided on 23.09.2022.
14   527 US 471 (1999).
15   42 U. S. C. § 12102(2)(A).
932           SUPREME COURT REPORTS                           [2023] 13 S.C.R.


      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 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:
MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                             933
    DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

 “3. On the above tests, he was diagnosed to have mild colour vision
 deficiency.
 a) With Ishihara colour vision screening test except for the demo plate,
 he did not provide correct response to other plates.
 b) With AO - HRR test, he was able to identify the demo plates and with the
 diagnostic plates, he responded for two of the milder form protan
 plates.
 c) In FM 100 hue test, he was able to perform without any delay and
 he reconfirmed that he understood the test.
 d) He was able to perform the wire matching test with fluency (Figure
 1).
 e) On signal test, he was making errors and confused it with yellow.
 4. He was then taken to the “on the field test” for observing his
 capabilities at work station. The test was conducted at the work station
 of TANGEDCO situated at 141, Anna Salai, Chennai-600 002). He
 was asked to read out the colours of the display panels appeared on
 the monitor of the computer system. He was making errors when the
 colour comes closer to yellow. He was misreading that colour as lighter
 shade of green which is actually yellow.
 5. On the control panel large display unit, he was asked to read out
 signals and also the numbers written in various colours. He was able
 to read the numbers and text without any difficulty. He was also able
 to identify the coloured arrow marks. (We are unable to provide picture
 as we were not allowed to take photo quoting confidentiality).
 6. At the Chennai Distribution Control Unit, he was asked to identify
 the colours on the distribution line charts. He was able to identify
 majority of the colours but made errors with colours yellow and green
 closely placed.
 7. He was also made to identify wires in the control room station. He
 identified majority of the colours but made errors with brown and
 orange coloured wires and also with green and yellow coloured wires.
934          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


      8. After the field visit, dilated fundus examination was performed.
      Retina, macula and optic nerve head appeared to be normal for both
      eyes.”
      OBSERVATION:
      1. With the above findings observed during the examination conducted
      and considering his job profile, we conclude that he could encounter
      errors while reading the distribution line charts which is crucial for
      the job profile of AE’s to make judgment on the running of the lines.
      2. He also has confusion when it comes to lighter shades of colours
      of green and red.”
      14. The appellant also relies upon Nandkumar Narayanrao
Ghodmare v. State of Maharashtra16 where the court had to deal with
an aspirant to the position of Agriculture Officer. He was assessed to
colour blindness. The court directed that the disorder or so-called defect
should not constitute a bar to appointment and that he should be provided
employment, commensurate with the organisation’s other requirements.
The court was of the view that except some posts, there were other
positions in the cadre that needed no perfect colour vision and that persons
with colour blindness would also be accommodated. The court therefore
directed the State to grant employment. Reliance also was placed upon
the more recent judgment in Pranay Kumar Poder v. State of Tripura17
where the Court highlighted the features of the Ishihara colour vision test.
It was emphasized that colour vision deficiency is neither impairment of
vision and in that sense falling within the disability spectrum calling for
treatment under the Rights of Persons with Disabilities Act, 2016 nor is
it of such condition as to bar sufficiently qualified persons’ entitlement
to be employed in an organization that can accommodate her educational
attainments and talents. Learned counsel also relied upon Ashutosh Kumar
v. Film and Television Institute of India18 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.


16 1995 (Supp 4) SCR 565.
17 2017 (2) SCR 797.
18 [2022] 16 S.C.R 1094.
   MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                              935
       DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

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
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, inadvertently. Therefore, the employer in the present case,
was clearly under a duty to accommodate the appellant and continue with
his employment.
936            SUPREME COURT REPORTS                               [2023] 13 S.C.R.


      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 becoming a signatory to the Proclamation on the Full
Participation and Equality of the People with Disabilities in the Asian and
Pacific Region19. 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,


19 A Meeting held to to Launch the Asian and Pacific Decade of Disabled Persons
   1993-2002 convened by the Economic and Social Commission for Asia and Pacific
   held at Beijing on 1st to 5th December,1992, adopted the Proclamation on the Full
   Participation and Equality of People with Disabilities in the Asian and Pacific Region.
   MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                                            937
       DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

entry level reservations in established controlled by the state or its agencies,
and general provisions to enable physical access to institutions; it also
mandates provisioning of existing institutions, to accommodate PWDs, in
physical infrastructure, and at all points to enhance full participation and
functioning of such individuals. Its provisions defining “disability” and
persons with disabilities20, are fairly elaborate; interestingly these concepts
are defined in an inclusive manner, lead to potentialities for their use.
However, at the same time, the actual benefits in the form of affirmative
action are defined by a specific category of PWDs (orthopaedical, visual,
hearing, mental, etc.) and tied to the context of “benchmark” disabilities21,
which entitles those PWDs who qualify with a certain threshold of disability
(40 per cent or more) to the affirmative action and other similar benefits 22.



20 Section 2 (s) defines as follows: ‘“person with disability” means a person with long
   term physical, mental, intellectual or sensory impairment which, in interaction with
   barriers, hinders his full and effective participation in society equally with others;’
21 Which is defined by Section 2 (r): ““person with benchmark disability” means a person
   with not less than forty per cent. of a specified disability where specified disability has
   not been defined in measurable terms and includes a person with disability where
   specified disability has been defined in measurable terms, as certified by the certifying
   authority;”
22 Section 33 of the Act reads as follows: Identification of posts for reservation-
   The appropriate Government shall—
         (i) identify posts in the establishments which can be held by respective
      category of persons with benchmark disabilities in respect of the vacancies
      reserved in accordance with the provisions of section 34;
         (ii) constitute an expert committee with representation of persons with
      benchmark disabilities for identification of such posts; and
          (iii) undertake periodic review of the identified posts at an interval not exceeding
       three years.
    34. Reservation. — (1) Every appropriate Government shall appoint in every
    Government establishment, not less than four per cent. of the total number of vacancies
    in the cadre strength in each group of posts meant to be filled with persons with
    benchmark disabilities of which, one per cent. each shall be reserved for persons with
    benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons
    with benchmark disabilities under clauses (d) and (e), namely:—
          (a) blindness and low vision;
          (b) deaf and hard of hearing;
          (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;
938           SUPREME COURT REPORTS                                 [2023] 13 S.C.R.


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.
      19. The Act contains a general non-discriminatory provision:
      “3. Equality and non-discrimination.
      (1) The appropriate Government shall ensure that the persons with
      disabilities enjoy the right to equality, life with dignity and respect
      for his or her integrity equally with others. (2) The appropriate
      Government shall take steps to utilise the capacity of persons with
      disabilities by providing appropriate environment.
      (3) No person with disability shall be discriminated on the ground of
      disability, unless it is shown that the impugned act or omission is a
      proportionate means of achieving a legitimate aim.
      (4) No person shall be deprived of his or her personal liberty only on
      the ground of disability.
      (5) The appropriate Government shall take necessary steps to ensure
      reasonable accommodation for persons with disabilities.”
      20. The twin conditions of falling within defined categories, and also
a threshold condition of a minimum percentage, of such disabilities, in fact
are a barrier. The facts of this case demonstrate that the appellant is fit, in
all senses of the term, to discharge the duties attached to the post he applied
and was selected for. Yet, he is denied the position, for being “disabled” as
he is colour blind. At the same time, he does not fit the category of PWD
under the lexicon of the universe contained within the Act. These challenges


      (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.
   MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                             939
       DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

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.
     21. In Jeeja Ghosh v. Union of India23 this court observed:
     “40. In international human rights law, equality is founded upon
     two complementary principles: non-discrimination and reasonable
     differentiation. The principle of non-discrimination seeks to ensure that
     all persons can equally enjoy and exercise all their rights and freedoms.
     Discrimination occurs due to arbitrary denial of opportunities for
     equal participation. For example, when public facilities and services
     are set on standards out of the reach of persons with disabilities, it
     leads to exclusion and denial of rights. Equality not only implies
     preventing discrimination (example, the protection of individuals
     against unfavourable treatment by introducing anti-discrimination
     laws), but goes beyond in remedying discrimination against groups
     suffering systematic discrimination in society. In concrete terms, it
     means embracing the notion of positive rights, affirmative action and
     reasonable accommodation.”
      22. Ravinder Kumar Dhariwal v. Union of India 24 highlighted on
the right to equality and underlined the two aspects: formal equality and
substantive equality. It stated that substantive equality aims at producing
equality of outcomes, and in the context of the case, observed that the
“principle of reasonable accommodation is one of the means for achieving
substantive equality, pursuant to which disabled individuals must be
reasonably accommodated based on their individual capacities.” The
court recollected Vikash Kumar v. Union Public Service Commission25,
which held as follows “The principle of reasonable accommodation
acknowledges that if disability” should be remedied and opportunities are
“to be affirmatively created for facilitating the development of the disabled.
Reasonable accommodation is founded in the norm of inclusion. Exclusion
results in the negation of individual dignity and worth or they can choose


23 [2016] 4 SCR 638.
24 [2021] 13 SCR 823
25 [2021] 12 SCR 311
940           SUPREME COURT REPORTS                           [2023] 13 S.C.R.


the route of reasonable accommodation, where each individual’s dignity
and worth is respected.”
      23. It was also noted that provisions of Chapters VII and VIII of the
Act are in furtherance of the principle of reasonable accommodation which
is a component of the guarantee of equality. This has been recognised by a
line of precedent. This court, in multiple cases has held that the principle of
reasonable differentiation, recognising the different needs of persons with
disabilities is a facet of the principle of equality.
     24. The significant impact of Vikash Kumar (supra) is that the
case dealt with a person with a chronic neurological condition resulting
in Writer’s Cramp, experiencing extreme difficulty in writing. He was
denied a scribe for the civil services exam by the UPSC, because he did
not come within the definition of person with benchmark disability (40%
or more of a specified disability). This court, rejected this stand, and held
him to be a person with disability. It was also stated that the provision
of scribe to him fell within the scope of reasonable accommodation.
The Court said:
      “… the accommodation which the law mandates is ‘reasonable’
      because it has to be tailored to the requirements of each condition of
      disability. The expectations which every disabled person has are unique
      to the nature of the disability and the character of the impediments
      which are encountered as its consequence…”
      25. The appellant is, for all purposes, treated as a person with disability,
but does not fall within the categories defined in the Act, nor does he possess
the requisite benchmark eligibility condition. The objective material on the
record shows that the colour vision impairment is mild. Yet, TANGEDCO’s
concerns cannot be characterised as unreasonable. However, TANGEDCO
is under an obligation to work under the framework of “reasonable
accommodation”, which is defined by Section 2 (y) as follows:
      “(y) “reasonable accommodation” means necessary and appropriate
      modification and adjustments, without imposing a disproportionate or
      undue burden in a particular case, to ensure to persons with disabilities
      the enjoyment or exercise of rights equally with others;..”
   MOHAMED IBRAHIM v. THE CHAIRMAN & MANAGING                             941
       DIRECTOR & ORS. [S. RAVINDRA BHAT, J.]

       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”.
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 service, or his appointment was cancelled, and accommodate him in
a suitable department, where he can be given appropriate responsibilities.
942            SUPREME COURT REPORTS                     [2023] 13 S.C.R.


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.


Headnotes prepared by:                                        Appeal allowed.
Ankit Gyan