2. By virtue of the present OA, applicant is seeking promotion from Group 'C' to Group 'B' by claiming benefit of his disability under Section 47 of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Rules, 1995. Learned Counsel would contend that the respondents when held the selection where the applicant was declared qualified, the subsequent disability would not make him disqualified.
3. Shri Patel, learned Counsel for applicant by placing reliance on Section 2 (b) (ii) of the Act ibid, the visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye worse and further on Section 2(i)(i) contended that blindness is defined as low vision. In above view of the matter, learned Counsel has placed reliance upon the decision of the Apex Court in Kunal Singh v. Union of India and Anr.
to contend that provision of Section 47 of the Act ibid prohibit against dispensing with the services of an employee acquiring a disability during his service and provision for shifting him to some other post in case of consequent unsuitability for the post he was holding being an employee of an establishment which was not exempted from Section 47, acquiring disability during service and getting incapacitated, such an employee covered by Section 47 (i) (v).
In such view of the matter, it is stated that nobody can be discriminated in the matter of promotion on account of disability.
Learned Counsel has also placed reliance on the decision of the Tribunal in Jitendra Varshney and Ors. v. Union of India. In that case, the present applicant along with the other applicants therein, participated in the selection for the post of Group 'B', but were not found fit. The Tribunal allowed the said OA against which Writ Petition as well as Civil Appeal No. 1953/2004 preferred by the respondents were dismissed wherein the Apex Court ruled that the decision in the case of Union of India v. Sanjay Kumar Jain , keeping in light the colour blindness therein, but left the issue open to be decided in the appropriate case.
4. Learned Counsel also brought material from Wikipedia, the free encyclopedia, to demonstrate that visual acuity usually falls to 20/50 to 20/400 range.
5. In above view of the matter, it is contended that applicant has been discriminated in the matter of promotion from Group 'C' to Group 'B' invidiously without any reasonable basis by the respondents.
6. On the other hand, Shri Satpal Singh, learned Counsel for respondents vehemently opposed the contentions and stated that the decision in Jitendra Varshney's case (supra) will have no application in the present case, as the applicant has been found 'unfit' and his disability is not covered under the Act ibid. As such the benefit of the aforesaid decision would not be extended to him.
7. On careful consideration of the rival contentions of the parties, we are of the considered view that the Act ibid has been enacted with an object sought to be achieved, i.e., disability should not be an impediment for a person to compete in the selection whether in the private sector or in Govt. servant. It should not be an impediment either for continuation in the job or seeking promotion as career progression. In this view of the matter, the decision of the Apex Court in Kunal Singh's case (supra), Apex Court took into consideration the very object of Section 47 of the Act ibid and ruled that in case the disability is incurred outside or within the employment, one must not be shunted out of the service but he should be continued even after creating a supernumerary post for his continuation. Accordingly, decision in Sanjay Kumar Jain's case (supra), a Railway Board matter, where the petitioner had applied and qualified for promotion to Group 'B' but on account of colour blindness, his case was turned down. The Tribunal in the light of the Section 47 of the Act ibid allowed the claim of the applicant therein and when it was dealt with by the Apex Court, the Apex Court by placing reliance of the Section 47 of sub Section 2 of the Act ibid ruled that once an organization is not exempted, there cannot be a discrimination on account of disability in the matter of career progression.
8. In the light of the above, the only consideration left to be done in this case is whether the applicant is covered under the definition of disability as per the Act ibid. We find from the material on colour blindness as well as the decision of the Apex Court in Jitendra Varshney's case (supra) that the colour blindness is a disability of visual acuity, as admitted by the respondents, which was the ground for declaring him disqualified to be considered for promotion to Group 'B' post. That visual acuity, which covered his case, comes within the ambit of colour blindness and disability. But this has to be adjudged by the expert body. In judicial review, we cannot encroach upon the arena left for the experts.
9. In that view of the matter, we are of the view that the ends of justice would be fully met, if a direction be issued to the respondents to get the applicant examined suitability for determining his visual acuity and on the basis of the report, the competent authority shall process the case of the applicant and consequential benefits be allowed, in case he is found fit under the rules and instructions.
Order accordingly. This shall be done within two months from the date of receipt of a copy of this order.