Holding

Section 47(2) bars denial of promotion only when the disability does not affect the employee's capacity to discharge the higher functions, which was not the case here.

Summary

Devendra Kumar Pant, a senior research assistant, was promoted to Chief Research Assistant on the condition that he obtain a B‑1 medical fitness certificate, which required colour perception. Pant, already cleared in the lower 82 category (which does not require colour perception), was denied promotion because he could not meet the higher standard. He challenged the denial invoking Section 47(2) of the Persons with Disabilities Act, 1995, arguing that lack of colour perception is a disability and the provision bars denial of promotion on that ground. The High Court accepted this argument, but the Supreme Court held that the medical standard was prescribed for public safety, employee and co‑employee interests, and therefore Section 47(2) does not apply when the disability affects the performance of higher duties. Consequently, the promotion could be lawfully withheld, the High Court order was set aside and the Tribunal's dismissal was restored.

Issues considered

Whether denial of promotion for not meeting the B‑1 medical standard violates Section 47(2) of the Persons with Disabilities Act, 1995.
Whether lack of colour perception qualifies as a disability under the Act.
Whether employer‑prescribed medical standards for safety and efficiency can be enforced despite a claim of disability.

Legislation cited

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995s. 2, s. 47(2)

Subjects

Persons with Disabilities ActSection 47PromotionMedical standardsColour perceptionDisability discriminationPublic safety

Judgment

[2009] 11 S.C.R. 1

UNION OF INDIA A
v.
DEVENDRA KUMAR PANT & ORS.
(Civil Appeal No. 4668 of 2007)

JULY 9, 2009
B
[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]

f
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 - s. 47 (2) -
Applicability of - Denial of promotion on account of non- C
fulfillment of minimum medical standard prescribed for
promotion - Denial challenged taking the plea that non-
fulfillment of medical standard being on account of a disability,
protection under the Act was available - Held: The medical
standard having been fixed in the interest of public s.afety, D
interest of employee concerned, co-employees and
administration, protection uls 47 (2) not available - Service
Law - Promotion. ·

As per Office Order No. 4/1990 dated 19.7.1990, the E
medical standards were rationalized, whereby for the
posts of junior Research Assistant and Senior Research
Assistant, medical standard was upgraded from 82 to 81
category. However, medical category for the post-of Chief
Research Assistant wa!; retained as B-1 category. F

Respondent-employee was promoted to the post of
Chief Research Assistant with the condition that the
promotion would be effective with effect from the date of
submission of fitness certificate in B-1 medical category. G
By subsequent Memos/Orders, he was asked to present
" himself before concerned medical officers for
examination.

- 1 H
2 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Respondent-employee filed a petition before
Administrative Tribunal which was dismissed. He fil~d writ
petition taking a new plea that 81 category required
colour perception, and that lack of colour perception
being a disability, he was protected by s. 47(2) of Persons
B With Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995. High Court
allowed the writ, accepting the plea of disability. Hence
the present appeal.

c Allowing the appeal, the Court

HELD: Where the disability is likely to affect the
maintenance of safety and security norms, or efficiency,
then the stipulation of standards for maintaining such
0 safety, security and efficiency will not be considered as
denying a person with disability merely on the ground of
his disability, but is denial of promotion by reason of the
disability plus something more, that is adverse effect of
the disability upon the employee's performance of the
E higher duties or functions attached to the promotional
post. Section 47(2) does not provide that even if the
disability comes in the way of performance of higher
duties and functions associated with the promotional
post, promotion shall not be denied. Section 47(2) bars
F promotion being denied to a person on the ground of
disability, only if the disability does not affect his capacity
to discharge the higher functions of a promotional post.
Where the employer stipulates minimum standards for
promotion keeping in view safety, security and efficiency,
G and if the employee is unable to meet the higher minimum I-

standards on account of any disability or failure to
posses the minimum standards, then Section 47(2) will
not be attracted, nor can it be pressed into service for
seeking promotion. [Para 15] [16-8-F]
H
UNION OF INDIA v. DEVENDRA KUMAR PANT & 3
ORS.
~ 2. While invoking or applying the provisions of the A
Act, it is necessary to keep in view that the intention of
the Act is to give a helping hand to persons with disability
so that they can lead a self-reliant life with dignity and
freedom. But the intention of the Act is not to jeopardize
the safety and security of the public, co-employees, or the 8
employee himself or the safety and security of the
f equipments or assets of the employer nor to accept
reduced standards of safety and efficiency merely
because the employee suffers from a disability. [Para 16]
(16-G-H; 17-A-B] C

3. In the instant case, Office Order No. 4/1990 makes
it clear that the minimum medical standards have been
fixed, taking into account the requirements in the medical
manual with reference to interest cf public safety, interest o
x of the employee himself and fellow employees and in the
interest of the administration. If any employee or group
of employees are of the view that a particular minimum
medical standard prescribed does not serve the interest
of public safety, interest of the employee and fellow E
employees or.the interest of administration, but has been
introduced only with the intention of keeping a person
with disability from securing the promotional post, it is
' always open to him or them to give a representation to
the employer to review/revise the minimum medical F
standards. On such representation the employer will refer
the issue to a committee of experts to take appropriate
decision, if that was not already done. But once a
decision regarding medical standards has been taken by
the management bonafide and in the usual course of G
business on the report/recommendation of an expert
1 - committee, the same cannot be found fault with on the

ground that it.affects the right of a person with disability
for promotion. [Para 16] [17-B-F]
H
4 SUPREME COURT REPORTS [2Q09) 11 S.C.R.
..
,

A 4.. !n the instant-case the higher medical standard of
81 was prescribed not only for the post of Chief
Research Assistant but for Senior Research Assistants
and Junior Research Assis~ants. As the respondent with
a 82 medical category clearance, had already been
B appointed as Senior Research Assistant, he cannot be
reduced from that rank merely on the ground that under
the revised guidelines, the post requires a 81 medical
standard clearance. But when the issue of promotion
comes up, the requirement of 181 medical standard cannot
C be dispensed with. For Chief Research Assistant, the
minimum medical standard was 81 even before the
revision of standards whereby the medical standard for
Senior Research Assistant was revised from 82 to 81..
The said standard having been fixed in the interest of the
D public safety, as also interest of the employee concerned,
co-employees and administration, the respondent
cannot, by relying upon section 47(2) of the Act, avoid
subjecting himself to medical examination for
ascertainment of 81 medical category fitness. The denial
E is on the ground of non-fulfillment of a minimum required
standard/qualification. [Para 17 and 18) [17-F-H; 18-F]

Union of India v. Sanjay Kumar Jain 2004 (6) SCC 708,
distinguished.
F
Kuna/ Singh v. Union of India 2003 (4) SCC 524, referred
to.

Case Law Reference:

G 2004 (6) sec 108 Distinguished. Para 6
)
2003 (4) sec 524 Referred to. Para 10

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
"-.'

H

(
. t:
UNION OF INDIA v. DEVENDRA KUMAR PANT & 5
ORS.

4668 of 2007. A
From the Judgment & Order dated 08.11.2006 of the High
Court of Allahabad, Lucknow Bench in Writ Petition No. 1800
of 2005.

P.P. Malhotra, ASG, Rashmi Malhotra and D.S. Mahra for B
the Appellants .
.~
Geeta Luthra and D.N. Goburdhan for the Respondents .
..... The Judgment of the Court was delivered by
c
R. V. RAVEENDRAN, J. 1. The first respqndent was
appointed as a Lab Assistant in the Research Oesigns and
Standards Organisation (ROSO), Ministry of Railways, in the
year 1972 and was subsequently promoted as Junior Research
Assistant in 1977 and Senior Research Assistant in 1983. D

2. The first Respondent (referred to as the 'respondent' as
he is the only contesting respondent) was selected for the next
higher post of Chief Research Assistant, and by order dated
30.6.1997, he was promoted to the said post with the condition E
that his promotion will be effective from the date of submission
of fit certificate in B-1 medical category.

3. The medical classifications for various categories of
non-gazetted staff of ROSO, revised with a view to rationalize F
the medical standards, were notified by the ROSO, Ministry of
Railways, by Office Order No.4/1990 dated 19. 7 .1990. The
annexures to the said office order stated that the Committee
constituted to decide upon the standards of medical
examination had followed the following guidelines in rationalising G
the medical standards : (i) to the extent possible, the same
medical standards were fixed for all RSDO staff of same
capacity, doing similar type of work; (ii) the requirements
stipulated in the Medical Manual with respect to the interest of
H
6 . SUPREME COURT REPORTS [2009] 11 S.C.R.

A public safety and administration, as also the interests of the
employee himself and his fellow workers were taken into
account while fixing the medical standards; and (iii) any
possibility of medical decategorisation during promotion were
obviated/minimized, while deciding upon the medical
8 standards. The Committee had also recommended that in
cases where a medical category, higher than that was then
being followed, vJ~s recommended, the ROSO employees in
those medical categories who were in service on 1.6~990
should be granted telaxation at the discretion of the ADG The
c medical standards :that was _being followed till introducti n of
revised medical standards· and the revised medical stand rds
that was introduced by office order dated 19.7.1990,1 for
Research Assistants, were as follows : ·

Designation Class of Medical Examination
D
Medie;al category Revised medical
before revision category introduced
by office order NoA
of 1990
E
Chief Research 81 81
Assistant'
Senior R~search 82 81
F Assistant
Junior Research 82 81
Assistant

The main distinction between 81 and 82 medical categories
G referred to above was that colour perception was a requirement
prescribed for B-1 category but not for 82 category.
.)
4. When the promotion order dated 30.6.1999 required
the respondent to submit 8-1 Medical Category 'fit' certificate,
H the respondent filed objections contending that in the existing
.. .,.
UNION OF INDIA v. DEVENDRA KUMAR PANT &
ORS. [R.V. RAVEENDRAN, J.)
ROSO environment, the nature of work prescribed for the posts
7

A
of JRA, SRA and CRA was the same, and as he was already
• cleared for 82 medical category, it was not necessary for him
to secure fitness in the higher medical category of 81. By
replies dated 24. 7 .1987 and 24.11.1997, the Directorate
informed him that the different medical categories were 8
prescribed in pursuance of rationalisation of medical standards,
taking into account the requirements of the job, as also the
,_
safety and welfare of the public, fellow workers and the
concerned employee himself. He was therefore once again
called upon to present himself before the authorized Medical c
Officer for medical test and certification.

5. Being aggrieved, the re~pondent filed OA No.395/1998
before the Central Administrative Tribunal, Lucknow Bench,
praying that the promotion order dated 30.6.1997 to the extent
it required him to produce Fit Certificate in 8-1 medical D
category and.the consequenti~I memos/orders dated 7.7.1997,
24.11.1997 and 17. 7 .1998 requiring him to present himself
before the concerned medical officers for examinationr be
quashed. He als~ sought quashing of the office order No.4/
1990 dated 19.7.1990 insofar as it related to classification of E
medical category in respect"of Research Assistants. The
Tribunal by order dated 20.5.2005 dismissed the said
application as bei~g devoid of any merit. The Tribunal held that
the rationalization of medical standards prescribed in Office
Order dated 19.7.~990 was on the basis of recommendations F
of a Committee constituted for that purpose, keeping in view
the job requirements and the interests of the employee
concerned as also other employees, and therefore it did not
suffer from any infirmity. It also held that unless the respondent
obtained the required 8-1 category fit certificate, he will not be G
fulfilling the required medical standard for the post of Chief
Research Assistant.
.
6. The respondent filed W .P. No.1800/2005 before the
Allahabad High Court, challenging the order of the Tribunal.
H
'
8 SUPREME COURT REPORTS [2009) 11 S.C.R.
,,.

A Before the High Court, the respondent raised a new contention +-
based on section 47(2) of the Persons With Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, •
· 1995 (for short 'the Act') which provided that "no promotion shall
be denied to a person merely on the ground of his disability".
B His contention was that the B 1 medical category was of a higher
standard than 82, as it required colour perception in addition
to the requirements prescribed for 82 category; that lack of
colour perception or reduced colour perception was a ~

'disability'; and th.at as he was otherwise qualified, having
c regard to section 47(2), promotion could not be denied to him
on the ground of any disability which existed with reference to.
81 medical standard. The said contention found favour with the
High Court and by order dated 8.11.2006, it allowed the writ
petition. The High Court held that having regard to section 47(2)
of the Act, as explained by this Court in Union of India v.
D
Sanjay Kumar Jain [2004 (6) SCC 708), no person could be
denied promotion merely on the ground of disability unless there
was a notification exempting the establishment from the
provisions of section 47 of the Act; and that as there was no
such notification exempting ROSO from the provisions of
E section 47 of the Act, the respondent could not be denied
promotion. It therefore issued a direction that if the respondent
submitted himself for medical examination and was found fit for
82 Medical category, he should not be denied promotion on
the ground that he did not fulfil the requirements of B 1 medical
F category. The said order is challenged by the employer in this '
appeal-by s12.ecial leave.

7. In the original application filed before the Tribunal, the
petitioner had not raised any contention based on section 47
G of the Act. He had merely contended that as the nature of work
of Senior Research Assistant and Chief Research Assistant
was one and the same and as he was already cleared for 82 .)

• medical category standard, there was no need for getting the
further clearance for B 1 medical category standard for the
purpose of promotion. The respondent did not also seek any
H
UNION OF INDIA v. DEVENDRA KUMAR PANT & 9
ORS. [R.V. RAVEENDRAN, J.)

relaxation of the requirement relating to higher medical A
standard, as his contention was that such a higher medical
standard was inapplicable and unnecessary. In fact, even in the
writ petition, the petitioner did not raise the ground based on
section 47(2) of the Act, but merely reiterated his earlier
contention. Only during arguments, he contended that his B
inability to fulfill the higher standard of B1 category could not
be a ground for denying him promotion, having regard to
section 47(2) of the Act. The said contention was entertained
by the High Court without giving proper opportunity to the
appellant to meet it. The High Court without any discussion C
assumed that having regard to the said sub-section and the
interpretation thereof by this Court in Sanjay Kumar Jain, the
respondent could not be denied promotion on the ground that
he did not qualify in 81 medical category.

8. The question that arises for our consideration is whether D
refusal by the appellant to give effect to the promotion of
respondent unless he obtains fit certificate in B-1 medical
category, violates section 47(2) of the Act. In short, what falls
for our consideration in this case is the scope and purport of
sub-section (2) of section 47 of the Act, which provides that no E
promotion shall be denied to a person merely on the ground of
his disability.

9. An examination of the relevant provisions of the Act is
necessary before considering the said question. The Act was
F
enacted to give effect to the proclamation on the full
participation and equality of the people with disabilities.
Chapter IV relates to education to children with disabilities. It
contains provisions requiring appropriate governments and
local authorities to make provisions for free education and for G
making schemes and programmes for non-formal education to
children with disabilities. Chapter VI relates to employment for
persons with disabilities. It contains provisions for identification
of posts which could be reserved for persons with disabilities
and formulating schemes for ensuring employment of persons
H
10 SUPREME COURT REPORTS [2009] 11 S.C.R.

A with disabilities. Chapter VII contains provisions for affirmative
action by making special schemes to provide aids and
appliances to persons with disabilities and making preferential
allotment of land for certain purposes. Chapter VIII relates to
non-discrimination. Section 44 deals with non-discrimination in
B transport. Section 45 deals with non-discrimination on the road.
Section 46 deals with non-discrimination in the built
environment Section 47 with which we are concerned, deals
with non-discrimination in government employment, and it is
extracted below:
c "47. Non-discrimination in Government employments.-
(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
D 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 it is not possible to adjust the
employee against any post, he may be kept on a
E
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;
F
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."
G
(emphasis supplied)

10. The scope of section 47 in general was considered by
this Court in Kuna/ Singh v. Union of India [2003 (4) SCC 524].
H This Court held :
UNION OF INDIA v. DEVENDRA KUMAR PANT & 11
ORS. [R.V. RAVEENDRAN, J.]
"Chapter VI of the Act deals with employment relating to A
persons with disabilities, who are yet to secure
employment. Section 47, which falls in Chapter VIII, deals
with an employee, who is already in service and acquires
a disability during his service. It must be borne in mind that
Section 2 of the Act has given distinct and different B
definitions of "disability" and "person with disability''. It is
well settled that in the same enactment if two distinct
definitions are given defining a word/expression, they must
be understood accordingly in terms of the definition. It must
be remembered that a person does not acquire or suffer c
disability by choice. An employee, who acquires disability
during his service, is sought to be protected under Section
47 of the Act specifically. Such employee, acquiring
disability, if not protected, would not only suffer himself, but
possilily all those who depend on him would also suffer.
The very frame and contents of Section 47 clearly indicate D
its mandatory nature. The very opening part of the section
reads "no establishment shall dispense with, or reduce in
rank, an employee who acquires a disability during his
service". The section further provides that if an employee
after acquiring disability is not suitable for the post he was E
holding, could be shifted to some other post with the same
pay scale and service benefits; if it is not possible to adjust
the employee against any post he will be kept on a
supernumerary post until a suitable post is available or he
attains the age of superannuation, whichever is earlier. F
Added to this no promotion shall be denied to a person
merely on the ground of his disability as is evident from
sub-section (2) of Section 47. Section 47 contains a clear
directive that the employer shall not dispense with or
reduce in rank an employee who acquires a disability G
during the service. In construing a provision of a social
beneficial enactment that too dealing with disabled
persons. intended to give them equal opportunities,
protection of rights and full participation, the view that
advances the object of the Act and serves its purpose must H
12 SUPREME COURT REPORTS [2009] 11 S.C.R.

A be preferred to the one which obstructs the object and -1.-
paralyses the purpose of the Act. Language of Section 47
is plain and certain casting statutory obligation on the
employer to protect an employee acquiring disability
during service."
B
11. We may next refer to the decision in Sanjay Kumar
Jain (supra), on which considerable reliance was placed by the
High Court and the respondent. One S.K. Jain was working in ~-
a Group 'C' post in the Railways. He applied for promotion to
a Group 'B' post. He qualified in the written test and was
c directed to undergo medical examination as per Para 531 (b)
of IREM (the Indian Railway Establishment Manual). Passing
of the medical test was a requirement before a candidate was
called for viva voce test. S.K.Jain was found to be medically
unfit as he was visually handicapped. He was therefore not
D called for viva voce test nor selected for promotion. The order
dated 20.9.2000 by which he was informed that he was not
being called for viva voce as he had been declared medically
unfit, was challenged before the Central Administrative Tribunal.
The Tribunal held that the provisions cf the Act and newly
E introduced para 189A of IREM which laid down that there shall
be no discrimination in the matter of promotion merely on the
ground of physical disability, were not kept in view and therefore
quashed the said order dated 20.9.2000. The said decision
was upheld by the High Court having regard to section 47(2)
F of the Act. Before this Court, the Railways submitted that the
proviso to sub-section (2) of section 47 permitted the
appropriate government to exclude by notification, any
establishment from the provisions of section 47 and the said
provision indicated that in appropriate cases the protection/
G benefit provided by sub-section (2) of section 47 could be
denied, and therefore this court may deny the protection under
section 47(2) to S. K. Jain. This Court held that unless a
~
notification was issued by the appropriate Government,
exempting the establishment from the provisions of section 47,
H having regard to the type of work carried in any establishment,
UNION OF INDIA v. DEVENDRA KUMAR PANT & 13
ORS. [R.V. RAVEENDRAN, J.]
\
.... an establishment cannot be exempted from the operation of A
section 4 7(2) of the Act. This Court therefore upheld the
decision of the Tribunal and the High Court. Thus the issue that
was considered by this Court was whether exemption from the
operation of section 47(2) could be claimed, when there was
no exemption notification under the proviso to section 4 7 of the B'
Act, by the appropriate Government. The scope and purport of
f-
section 4 7(2) did not really arise for considerati9n, nor
considered in that decision. The observation of this court that
J
sub-section (2) of Section 47 in crystal clear terms, provided
that no promotion shall be denied to a person merely on the c
gmund of his disability, strongly relied on by the respondent, is
not enunciation of any principle, but a reiteration of what is
stated in the section. Therefore the assumption of the High
Court that according to the interpretation of section 47(2) by
this court in Sanjay Kumar Jain, even if the respondent was
1- not able to qualify in medical category B1 because of lack of
D
or reduced colour perception, he could not be denied
promotion and that he should be subjected only to a 82 category
medical examination, is baseless. It is unfortunate that the High
Court has totally misunderstood the scope and purport C'f ·
section 47(2) of the Act and the decision in Sanjay Kumar Jain. E

12. Sub-section (2) of section 47 provides that no
promotion shall be denied to a person merely on the ground of
his disability. 'Disability' as per the definition in section 2(i) of
the Act, means blindness; low vision; leprosy-cured, hearing F
impairment, locomotor disability, mental retardation; and mental
illness. "Person with disability" is defined in clause (t) of section
2, as a person suffering from not less than forty percent of any
disability as certif~:d by a medical.authority. What is significant
is all persons with disability are not treated equally or similarly, G
-f under the Act. The benefits extended under the Act depends
~
upon the nature of disability and extent of disability. Different
principles relating to non-discrimination apply depending upon
the context in which the benefit is extended. Let us illustrate.
Section 33 refers to reservation of posts for persons or class
H

-'
14 SUPREME COURT REPORTS [2009] 11 S.C.R.

A of persons with disability. But it however makes it clear that the
reservations will be made only to those suffering from (i)
blindness or low vision, (ti) hearing impairment, (iii) locomotor
disability or cerebral palsy. There is no provision for reservation
of posts for persons suffering from mental retardation, mental
13 illness or leprosy-cured, though they are also 'persons with
disability'. On the other hand section 39 requires all educational
institutions to reserve seats for persons with disability, without
restricting the reservation only to certain categories of persons
with disability. Similarly some of the provisions in sections
C 44,45 and 46 with reference to non-discrimination in transport,
non-discrimination on the road and non-discrimination in the
built environment may be user-specific depending upon the
nature of disability, that is ~ome are meant only for persons with
locomotor disability and some for persons suffering from
blindness or low vision and not for others. Therefore the
D provisions of the Act cannot be applied mechanically to all
persons with any and every kind of disability. It will be
necessary to keep in view, the object of the Act, identification
of the category of persons for whom a particular beneficial
provision has been made, and the extent of the benefit
· E provided.

13. 'Blindness' is a disability defined in clause (b) of
section 2 and refers to (i) total absence of sight or (ii)· visual
acuity not exceeding 6/60 or 20/200 (snellen) in the better eye
F with correcting lenses; or (iii) limitation of the field of vision sub
tending an angle of 20 degree or worse. 40% disability referred
to in Section 2 (t) to identify persons with disabilities, will apply
to categories (ii) and (iii) of section 2(b) but will be irrelevant
in regard to persons with total absence of sight falling under
G category (i) of section 2(b). Section 2(u) defines a "person with
low vision" as "a person with impairment of visual functioning
even after treatment or standard refractive correction but who
uses or is potentially capable of using vision for the planning )
or execution of a task with appropriate assitive device". Lack
H of colour perception is neither blindness nor low yision and is
UNION OF INDIA v. DEVENDRA KUMAR PANT & 15
ORS. [RV. RAVEENDRAN, J.]
therefore apparently not a disability under the Act. It is therefore, A
doubtful whether a person lacking colour perception can claim
to be .f:l person entitled to any benefit under the Act. Be that as
it may. V';/e will examine the issue assuming that respondent is
a person with disability.
8
14. Section 32 refers to identifications of posts which can
be, reserved for persons with disability. Section 33 deals with
reservation of posts for persons with disability. Sections 32 and
33 therefore apply to pre-employment situation, that is where
persons with disability are yet to secure employment. Section
47 applies to a post-employment situation, that is to those who C
are already_ in government employment. Section 47 contains
two distinct provisions. The first ~s a provision for non-
discrimination when an employee who is already in government
employment acquires a disability during his service. Sub-
section (1) extends the following protection to the employees D
in government service who acquire a disability during service :
(a) their service shall not be dispensed with or reduced in rank
on the ground that they acquired a disability during service; and
(b) if an employee who acquires a disability during service is
not suitable for the post he was h~lding, he could be shifted to E
some other post with same pay sc~le and service benefits, and
if it is not possible to adjust the employee against any post, he
should be kept on a supernumerary post until a suitable post
is available or until he attains the age of superannuation
whichever is earlier. F

15. Sub-section (2) of section 47 deals with non-
discrimination in promotion and provides that no promotion
shall be denied to a person merely on the ground of his
disability. This would mean that a person who is otherwise
eligible for promotion shaH not be denied promotion merely or G
k only on the ground that he suffers from a disability. Thus section
47(2) bars disability per se being made a disqualification for
promotion. To give an example, a person working as a Lower
Division Clerk (LDC) suffering from the disability of low vision,
H
16 SUPREME COURT REPORTS [2009] 11 S.C.R.

A cannot be denied promotion to the post of Upper Division Clerk
(UDC) merely because of his disability. This is because the
efficiency with which he functioned as a LDC will be the same
while functioning as a UDC also and the disability as such will
not affect his functioning in a higher post. But tlie position is
B different if the disability would affect the discharge of functions
or performance in a higher post or if the disability would pose
a threat to the safety of the co-employees, members of the
public or the employee himself, or to the assets and equipments
of the employer. If promotion is denied on the ground that it will
C affect the safety, security and performance, then it is not denial
of promotion merely on the ground of his disability, but is
denial of promotion by reason of the disability plus something
more, that is adverse effect of the disability upon the employee's
performance of the higher duties or functions attached to the
promotional post. It is significant that section 47(2) does not
0 provide that even if the disability comes in the way of
performance of higher duties and functions associated with the
promotional post, promotion shall not be denied. Section 47(2)
bars ptomotion being denied to a person on the ground of
disabili~y. only if the disability does not affect his capacity to
E discharge the higher functions df a promotional post. Where the
employer stipulates minimum standards for promotion keeping
in view safety, security and efficiency, and if the employee is
unable to meet the higher minimum standards on account of
any disability or failure to posses the minimum standards, then
F section 47(2) ~ill not be attracted, nor can it be pressed into
service for se,eking promotion. In other words where the
disability is likely to affect the maintenance of safety and security
norms, or efficiency, then the stipulation of standards for
maintaining such safety, security and efficiency will not be
G considered as denying a person with disability, ~romotion,
merely on the ground of his disability.

16. When invoking or applying the provisions of the Act, it
is necessary to keep in view that the intention of the Act is to
H give a helping hand to persons with disability so that they can
UNiQN OF INDIA v. DEVENDRA KUMAR PANT & 17
"1""' ORS. [RV. RAVEENDRAN, J.]
+ lead a self-reliant life with dignity and freedom. But the intention A
of the Act is not to jeopardize the safety and security of the
public, co-employees, or the employee himself or the safety and
security of the equipments or assets of the employer nor to
accept reduced standards of safety and efficiency merely
because the employee suffers from a disability. In this case, B
office order No.4/1990 makes it clear that the minimum
medical standards have been fixed taking into account the
f requirements in the medical manual with reference to interest
of public safety, interest of the employee himself and fellow
employees and in the interest of the administration. If any c
employee or group of employees are of the view that a
particular minimum medical standard prescribed does not
serve the interest of public safety, interest of the employee and
fellow employees or the interest of administration, but has been
introduced only with the intention of keeping a person with D
'\I.
disability from securing the promotional post, it is always open
to him or them to give a representation to the employer to
review/revise the minimum medical standards. On such
representation the employer will refer the issue to a committee
of experts to take appropriate decision, if that was not already
E
done. But once a decision regarding medical standards has
been taken by the management bonafide and in the usual
course of business on the report/recommendation of an expert
committee, the same cannot be found fault with on the ground
that it affects the right of a person with disability for promotion.
F
17. As noticed above, in this case the ·higher medical
standard of 81 was prescribed not only .for the pCDs~ of Chief
Research Assistant but for Senior Research Ass~stants and
Junior Research Assistants. As the respondent with a 82
medical category clearance, had already been a~pointed as G
Senior Research Assistant, he cannot be reduced from that
-)-
rank merely on the ground that under the revised guidelines,
the post requires c;i B 1 medical standard clearance. But when
the issue of promotion comes up, the requirement of 81
medical standard cannot be dispensed with. It should be H
18 SUPREME COURT REPORTS [2009] 11 S.C.R.

A remembered that for Chief Research Assistant, the minimum --t-
--
'

medical standard was B 1 even before the revision of standards
whereby the medical standard for even Senior Research
Assistant was revised from 82 to B1. The said standard having
been fixed in the interest of the public safety, as also interest
B of the employee concerned, co-employees and administration,
the respondent cannot, by relying upon section 47(2) of the Act,
avoid subjecting himself to medical examination for
ascertainment of B 1 medical category fitness.

18. Prescription of a minimum medical standard for
c promotion should be considered as such, and should not be
viewed as denial of a promotional opportunity to a person with
disability. We may illustrate. When an advertisement for the post
of a police inspector prescribes a minimum height or a
minimum chest measurements '
ora minimum physical
.
stamina,
D a person who lacks the -
same and therefore denied )y

appointment, cannot contend that re is discriminated on the
ground of physical disability. Firstly being short or very thin or
lacking stamina is not a physical disability but a physical
characteristic. Therefore in such a situation the question of
E applicability of the Act does not arise at all. If a person not
having a colour perception is denied appointment to the post
of a driver, he cannot complain that he is discriminated on the
ground of his disability. Same would be the position where the
colour perception is a required minimum standard for a >
F particular post. A person not possessing it is not being denied
appointment or promotion on the ground of disability. The denial.
is on the ground of non-fulfillment of a minimum required
standard/qualification. Viewed accordingly, it will be seen that
1
section 47(2) is not attracted at all. ~

G
19. Therefore we are of the view that the section 47(2) only
provides that a person who is otherwise eligible for promotion {
shall not be denied promotion merely on the ground that he
suffers from disability. The use of the words 'merely on the
ground' shows that the section does not provide that if the
H
UNION OF INDIA v. DEVENDRA KUMAR PANT & 19
ORS. [R.V. RAVEENDRAN, J.]
~ disability comes in the way of performing the higher duties and A
functions associated with the promotional post, promotion shall
not be denied. In other words promotion shall not be denied to
a person on the ground of his disability only if the disability does
not affect his capacity to discharge the higher functions of a
promotional post. B

20. The appeal is therefore allowed, and the order of the
High Court is set aside and the order of the Tribunal is restored,
resulting in the respondent's original petition before the Tribunal
being dismissed.
c
K.K.T. Appeal allowed.