# RESERVE BANK OF INDIA & ORS v. A.K. NAIR & ORS

- **Citation:** 2023 INSC 613
- **Court:** Supreme Court of India
- **Decided:** 2023-07-04
- **Case number:** Civil Appeal No. 529 of 2023
- **Bench:** S. Ravindra Bhat, Dipankar Datta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/reserve-bank-of-india-ors-v-a-k-nair-ors-36353
- **Pages:** 49

## Headnote

Persons with Disabilities (Equal Opportunity, Protection of
Rights and Full Participation) Act, 1995 - s. 33 - Rights of Persons
with Disabilities Act, 2016 - s. 34 - Reservation in promotion for
person with disabilities - Bank employee having post polio paralysis
of limbs with 50% disability - Appeared for All India Merit Test, to
secure promotion to Class I post, however, fell short of qualifying
marks by three marks - Representation for condonation of short
fall of marks, on par with SC/ST category but not considered - Writ
petition by the employee - High Court directed the bank to apply
reservation for persons with disabilities on the basis of total number
of vacancies appearing in direct recruitment quota as well as in
promotion quota in Group 'A' and Group 'B' posts respectively -
Review petition filed by the employee since the High Court did not
clarify the position on grace marks and his claim of qualification/
seniority from the date of eligibility - Disposed of, without examining
the merits - Held: PwD Act, 1995 not only mandated reservation in
appointment but also contemplated reservation in promotion - PwD
Act, 1995 did not contain any express provision mandating
reservation of posts for promotion to persons with disabilities serving
in the feeder cadre though it is ordained that no promotion shall be
denied to a person merely on the ground of his disability - Mere
absence of an express mandate in requiring reservation in promotion
for persons with disabilities could not have been construed as not
obliging the appropriate Government not to keep reserved vacancies
on promotional posts - On facts, it was harsh to apply standards
which are applicable to general candidates to the employee while
he competed with such general candidates for securing his
promotion - Bank ought to have taken an informed decision in this
regard commensurate with the aspirations of persons with disabilities
- Omission or failure of the Bank in condoning the shortfall in
marks coupled with the neglect to identify a Group 'A' post suitable
[2023] 10 S.C.R. 775 : 2023 INSC 613
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for reservation to accommodate the employee on promotion is
unjustifiable - In view thereof, issuance of direction to the Bank to
grant promotion to the employee on the post of Assistant Manager
Grade-'A' - Service law - Constitution of India - Art 142.
Disposing of the appeals, the Court
Per Dipankar Datta, J.
HELD: 1.1 Mere absence of an express mandate in Chapter
VI of the Persons with Disabilities (Equal Opportunity, Protection
of Rights and Full Participation) Act, 1995, requiring reservation
in promotion for persons with disabilities could not have been
construed as not obliging the appropriate Government not to
keep reserved vacancies on promotional posts for those answering
clauses (i) to (iii) of section 33. Though the language used in
section 33 could admit of a little bit of confusion, the crucial words
there are "shall appoint in every establishment". Paraphrased, it
implies that while the appropriate Government is making
appointment in every establishment, it ought to reserve a
minimum of 3 (three) per cent vacancies for persons or class of
persons with disability, of which 1 (one) per cent each shall be
reserved for those persons with disabilities of the nature
mentioned in the clauses therein, i.e., (i) blindness or low vision,
(ii) hearing impairment, and (iii) locomotor disability or cerebral
palsy, and that appointments shall be made on the posts identified
for each such disability as in the said clauses. It is, therefore, the
statutory duty enjoined by section 33 that there must be
appointment of persons with disabilities in every establishment
which ought not to be less than 3 (three) per cent but a minimum
of 1 (one) percent of vacancies, available on identified posts for
each disability, has to be reserved. The confusion, might have
stemmed from the narrow interpretation of the word "app

## Text

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RESERVE BANK OF INDIA & ORS.
v.
A.K. NAIR & ORS.
(Civil Appeal No. 529 of 2023)
JULY 04, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Persons with Disabilities (Equal Opportunity, Protection of
Rights and Full Participation) Act, 1995 - s. 33 - Rights of Persons
with Disabilities Act, 2016 - s. 34 - Reservation in promotion for
person with disabilities - Bank employee having post polio paralysis
of limbs with 50% disability - Appeared for All India Merit Test, to
secure promotion to Class I post, however, fell short of qualifying
marks by three marks - Representation for condonation of short
fall of marks, on par with SC/ST category but not considered - Writ
petition by the employee - High Court directed the bank to apply
reservation for persons with disabilities on the basis of total number
of vacancies appearing in direct recruitment quota as well as in
promotion quota in Group 'A' and Group 'B' posts respectively -
Review petition filed by the employee since the High Court did not
clarify the position on grace marks and his claim of qualification/
seniority from the date of eligibility - Disposed of, without examining
the merits - Held: PwD Act, 1995 not only mandated reservation in
appointment but also contemplated reservation in promotion - PwD
Act, 1995 did not contain any express provision mandating
reservation of posts for promotion to persons with disabilities serving
in the feeder cadre though it is ordained that no promotion shall be
denied to a person merely on the ground of his disability - Mere
absence of an express mandate in requiring reservation in promotion
for persons with disabilities could not have been construed as not
obliging the appropriate Government not to keep reserved vacancies
on promotional posts - On facts, it was harsh to apply standards
which are applicable to general candidates to the employee while
he competed with such general candidates for securing his
promotion - Bank ought to have taken an informed decision in this
regard commensurate with the aspirations of persons with disabilities
- Omission or failure of the Bank in condoning the shortfall in
marks coupled with the neglect to identify a Group 'A' post suitable
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for reservation to accommodate the employee on promotion is
unjustifiable - In view thereof, issuance of direction to the Bank to
grant promotion to the employee on the post of Assistant Manager
Grade-'A' - Service law - Constitution of India - Art 142.
Disposing of the appeals, the Court
Per Dipankar Datta, J.
HELD: 1.1 Mere absence of an express mandate in Chapter
VI of the Persons with Disabilities (Equal Opportunity, Protection
of Rights and Full Participation) Act, 1995, requiring reservation
in promotion for persons with disabilities could not have been
construed as not obliging the appropriate Government not to
keep reserved vacancies on promotional posts for those answering
clauses (i) to (iii) of section 33. Though the language used in
section 33 could admit of a little bit of confusion, the crucial words
there are "shall appoint in every establishment". Paraphrased, it
implies that while the appropriate Government is making
appointment in every establishment, it ought to reserve a
minimum of 3 (three) per cent vacancies for persons or class of
persons with disability, of which 1 (one) per cent each shall be
reserved for those persons with disabilities of the nature
mentioned in the clauses therein, i.e., (i) blindness or low vision,
(ii) hearing impairment, and (iii) locomotor disability or cerebral
palsy, and that appointments shall be made on the posts identified
for each such disability as in the said clauses. It is, therefore, the
statutory duty enjoined by section 33 that there must be
appointment of persons with disabilities in every establishment
which ought not to be less than 3 (three) per cent but a minimum
of 1 (one) percent of vacancies, available on identified posts for
each disability, has to be reserved. The confusion, might have
stemmed from the narrow interpretation of the word "appoint",
without realizing that "promotion" is also included within
"appointment". The term "appointment" is quite broad and
includes appointment by 'direct recruitment' as well as
appointment by way of 'promotion'. Prior to Rajiv Kumar Gupta's
(case), there was no authoritative pronouncement on the aspect
of reservation in promotion. The interpretation of section 33 of
the PwD Act, 1995 made by Rajiv Kumar Gupta's case finds its
resonance in Siddaraju's case. [Para 16][792-E-H; 793-A-C]
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1.2 The Rights of Persons with Disabilities Act, 2016
expressly makes available benefits of reservation to promotional
posts for persons with disabilities in that the first proviso to
section 34 ordains that reservation in promotion shall be in
accordance with such instructions as are issued by the appropriate
Government from time to time. Law within the meaning of Article
141 of the Constitution of India having been declared by
Siddaraju's and the GoI having implemented the order of this
Court dated 28th September, 2021 noted above and issued OM
dated 17th May, 2022, the same constitutes "instructions" as
contemplated by the first proviso to section 34 of the PwD Act,
2016. Such instructions contemplate reservation in promotion to
posts in Group - 'A' in the lowest grade. [Para 17][793-C-E]
1.3 When the provisions of the PwD Act, 1995 and the PwD
Act, 2016 in relation to reservation in promotion for persons with
disabilities are contrasted, it is clear as crystal that what was
implicit in the former has been made explicit by the latter. [Para
18][793-E-F]
1.4 There is no dearth of authority for the proposition that
the PwD Act, 1995 not only mandated reservation in appointment
but also contemplated reservation in promotion. Any perception
and understanding of section 33 of the PwD Act, 1995 not
contemplating reservation in promotion is erroneous and
fallacious. [Para 40 and 41][800-A-B]
1.5 OM dated 29th December, 2005 having been set aside
in Rajeev Kumar Gupta's case, the first question as to whether
modification of paragraph 14 of the OM dated 29th December
2004 brought about by OM dated 8th December, 2013, would
apply retrospectively, does not survive for consideration.
Furthermore, Rajeev Kumar Gupta's case having directed the
GoI to extend 3 (three) per cent reservation to the persons with
disabilities in all identified posts in Group 'A' and Group 'B',
irrespective of the mode of filling up of such posts, and the larger
Bench in Siddaraju's case having given its stamp of approval to
such decision, the second question also stands squarely answered
against the appellants. Finally, the question as to whether the
High Court was right in relying upon National Confederation of
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Development of Disabled's case is no longer res integra having
regard to the multiple decisions of this Court on the point affirming
the position that reservation in employment contemplated in
section 33 of the PwD Act, 1995 covers all posts identified for
each of the 3 (three) kinds of disability mentioned therein and is
not restricted to Group 'C' and Group 'D' posts. The view taken
therein is accepted. [Para 42][800-B-F]
1.6 The version of the RBI before the High Court was that
there is no provision for reservation in promotional posts in Grade
-'A' for persons with disabilities; hence, benefit of promotion on
a reserved vacancy could not be granted to the respondent. This
was indeed the ostensible reason for which the relaxed standards
of assessment available for SC/ST candidates was not extended
to persons with disabilities, a fortiori, to the respondent. In other
words, the respondent's claim for promotion on a reserved vacancy
for persons with disabilities, upon application of relaxed standards,
could not have been considered in the absence of any identified
Group 'A' post. That the appropriate Government must make
available reservation in the matter of appointment of persons
with disabilities in identified posts of Group 'A' and Group 'B'
had been conclusively and authoritatively decided by this Court
in Ravi Prakash Gupta's case and National Federation of the Blind's
case by the time the impugned judgment and order was rendered.
That being the position, no valid contention could have been
advanced that reservation for persons with disabilities is not
available for appointment on Group-'A' posts. What remained
was whether reservation for persons with disabilities is available
for promotional appointment on Group - 'A' posts. That issue
has also been given a quietus by Rajiv Kumar Gupta's case,
Siddaraju's case and Leesamma Joseph's case. The two big
impediments in the path of the respondent, thus, stand removed
by reason of a pragmatic and reasonable interpretation of the
PwD Act, 1995. [Para 45][801-G-H; 802-A-D]
1.7 It cannot, however, be gainsaid that when the respondent
had participated in the Panel Year 2003 examination, no decision
had been rendered by this Court that reservation in promotion is
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permissible in respect of Group 'A' posts. It is equally true that
this Court while interpreting sections 32 and 33 of the PwD Act,
1995 did not declare the law laid down by it to have prospective
application. It is a principle, well-settled in law, that the
interpretation of a provision of law relates back to the date of the
law itself. This is essentially for the reason that the duty of the
Court is not to legislate but to interpret the law. However, such
principle is subject to the exception that this Court may, in a
given case, declare that its interpretation would have effect
prospectively. That is not the express intention of this Court in
any of the decisions referred. This being the position in law, there
is no doubt that the respondent did have a statutorily conferred
right all through to claim that reservation in promotional
appointment in Group 'A' posts is ingrained in the PwD Act, 1995.
[Para 46][802-D-G]
1.8 As regards, whether the RBI was justified in not
condoning the shortfall of 3 (three) marks pertaining to the 2003
exa Indra Sawhney's mination taken by the respondent to enable
him secure promotion at par with the relaxed standards applicable
to SC/ST candidates, it is noted from the communication dated
18.10.2006 issued by the Banking Division, Department of
Economic Affairs, Ministry of Finance, GoI that the same surfaced
as a follow-up step to comply with this Court's order dated
19.03.2002 in A.I. Confederation's case. Even otherwise, to reach
out to persons with disabilities and grant them the facilities and
benefits that the 1995 Act envisaged, it was rather harsh to apply
standards which are applicable to general candidates to the
respondent while he competed with such general candidates for
securing his promotion. RBI, as a model employer, ought to have
taken an informed decision in this regard commensurate with
the aspirations of persons with disabilities. [Para 47 and 48][802H; 803-A-C]
1.9 Persons with disabilities are not entitled to be judged
by the same relaxed standards that are applied to assess
candidature of SC/ST candidates. The omission or failure of the
RBI in condoning the shortfall in marks coupled with the neglect
to identify a Group 'A' post suitable for reservation to
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accommodate the respondent on promotion appears to to be
indefensible. [Para 49 and 50][803-C-D]
1.10 There was no authoritative pronouncement of this
Court interpreting the PwD Act, 1995, making available
reservation in promotional appointments for persons with
disabilities in Group 'A' posts, when the respondent took the
examination for promotion to the post of Assistant Manager,
Grade-I in 2004. The first time it came to be so declared was
when the decision in Rajeev Kumar Gupta's case was pronounced.
As regards whether the RBI, in the circumstances, be directed
to relax the standard of assessment and grant promotion to the
respondent with retrospective effect, the High Court did not
mandatorily direct grant of promotion to the respondent. The
High Court's judgment, unintendedly, was confined to application
of reservation policy. The High Court did not declare that the
respondent should also be entitled to condonation of shortfall in
marks with reference to the Panel Examination 2003. Insofar as
other qualifying requirements under the relevant rules are
concerned, the High Court clarified that it may not be understood
to have expressed any opinion on the question of the respondent
satisfying such requirements. Given such contours of the order,
it was open to the RBI to consider the respondent for promotion
and pass appropriate order either granting or denying him
promotion in accordance with the prevailing exposition of law.
Instead of complying with the order, the RBI carried the judgment
and order to this Court on 12th September, 2014. GoI also
followed suit. It was the respondent who rushed to the High Court
with a review petition within the period of limitation, whereupon
his rights have been kept open noticing pendency of the petition
for special leave of the RBI. It seems that the RBI has on its own
invited the uncomfortable position in which it finds itself now.
The decisions of this Court rendered during the pendency of these
appeals have to be considered and applied, notwithstanding the
fact that the same were not available when the High Court decided
the respondent's writ petition finally. RBI might not have faced
this conundrum had the order of the High Court been complied
with on time. [Paras 52 and 53][803-E-H; 804-A-D]
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1.11 Dismissal without any observation has the potential of
generating further unnecessary litigation. At the same time,
though the respondent did not file any cross-appeal, he had applied
for review and has been conferred the liberty to revive the review
petition after disposal of proceedings by this Court. [Para 54][804E-F]
1.12 Having regard to the materials on record and for
answering question to what extent relief can legitimately be
extended to the respondent, it is considered appropriate to invoke
Article 142 of the Constitution "for doing complete justice" in
the cause. RBI is directed to grant notional promotion to the
respondent on the post of Assistant Manager Grade-'A', to be
effective from the date of presentation of the writ petition before
the High Court, i.e., 27th September, 2006 and actual promotion
from 15th September, 2014, i.e., the last date for compliance of
the order of the High Court. This exercise must be completed
within a period of 2 (two) months from date. The monetary benefits
accruing to the respondent with effect from 15th September, 2014
shall be computed and released by 4 (four) months from date.
[Para 55-56][804-F-H; 805-A]
National Confederation for Development of Disabled
& Anr. v. Union of India & Ors. PIL 106 of 2010; Govt.
of India & Anr. v. Ravi Prakash Gupta & Anr. (2010) 7
SCC 626 : [2010] 7 SCR 851; Union of India v.
National Federation of the Blind (2013) 10 SCC 772 :
[2013] 9 SCR 1023; Rajiv Kumar Gupta and Ors. v.
Union of India and Ors. (2016) 13 SCC 153 : [2016] 3
SCR 407; Siddaraju v. State of Karnataka and Ors.
(2020) 19 SCC 572; State of Kerala and Ors. v.
Leesamma Joseph (2021) 9 SCC 208; A.I.
Confederation of the Blind v. Union of India & Anr.
(2014) 15 SCC 481; Indra Sawhney v. Union of India
(1992) 3 Supp SCC 217 : [1992] 2 Suppl. SCR 454 -
referred to.
Per S. Ravindra Bhat J: (Supplementing)
HELD: 1.1 The Persons with Disabilities (Equal
Opportunity, Protection of Rights and Full Participation) Act, 1995
did not contain a provision for reservations in 'promotions' for
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persons with disabilities appointees, unlike its successor
enactment, the Rights of Persons with Disabilities Act, 2016,
which enabled the State to do the same. Section 33 of the 1995
Act only provided for 3% reservation for posts identified under
Section 32, with 1% each for persons suffering from (i) blindness
or low vision; (ii) hearing impairment; and (iii) locomotor disability
or cerebral palsy. There is no mention of this extending to
promotions. In the absence of such statutory power, its inclusion
in the extant provisions by this Court is not beyond doubt. It
cannot be said that the manner in which such reservations have
been granted in promotions-even if horizontally-as a matter of
right, is not contrary to the express prohibition of the same by
the nine judges in Indra Sawhney's case. Therefore, there is
serious reservation in its interpretation otherwise. [Para 10][820G; 821-A-B]
1.2 While Indra Sawhney's case no doubt pertained to
vertical reservations for backward classes of citizens. It cannot
be said that its operative portion on reservations in promotions
is inapplicable to other classes of citizens on that front alone.
Such an exercise of distinguishing its application misses the crux
of its reasoning - that while provision of reservations in initial
appointments furthers the mandate of substantive equality, its
application to promotions militates against the same mandate. It
was not the intention of Article 16 of the Constitution to
compromise on administrative inefficiency by culling the spirit of
competition-after all, positions gained by promotions taper higher
up. To ear-mark a certain portion to one class of citizens, and not
others, who may have also gained initial appointments on the
strength of such horizontality (such as women, retired / exservicemen, etc.) is not constitutionally protected-the only
exception to reservations in promotions is SC/ST appointees, as
provided under Article 16(4A). [Para 11][821-C-E]
1.3 Horizontal reservations, unlike their vertical
counterparts, are not rigid, but have fluidity to them. A candidate
eligible for horizontal reservation is not coffined to their vertical
category. Migrations are permissible to allow the best candidates
to emerge from this interlocking framework for reservations.
However, such a mechanism is unworkable in promotions, where
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vertical and horizontal qualifiers are absent (barring those for
SC/ST candidate. The (then) 3% reservations set aside for pesons
with disabilities candidates no longer remains horizontal, but is
implemented vertically. While the 2016 Act enables the State to
work out this mechanism, such is conspicuously absent in the
1995 Act. [Para 12][821-F-G]
1.4 This also leads to differential treatment of candidates
belonging to the same backward class as recognized by Article
16(4) of the Constitution. An OBC candidate who is also a person
with disabilities, will be given preference over a non-persons with
disabilities OBC candidate in promotions, which is impermissible.
Additionally, on a reading of T. Devadasan and N.M. Thomas's
case, it is relevant to note that while reservations for backward
classes are to be carried forward, the 2016 Act permits carrying
forward of horizontal reservations for persons with disabilities
candidates for a maximum period of two years. However, the
amendment to the Constitution recognizes that 'carry forward'
vacancies can exceed the 50% limit in promotional vacancies.
This amendment [inserting Article 16(4-B)] was upheld by this
Court in M.Nagraj case.[Para 13][822-A-C]
1.5 The laudable intent behind a provision such as Section
33 of the 1995 Act, and Section 34 of the 2016 Act, is undeniable.
It is given that persons with disabilities need to be
accommodated, in public service. At the same time, this
reasonable accommodation ought not to open gates for demands
by those benefitting other kinds of horizontal reservation, for
reservation in promotional vacancies in public services. [Para
14][822-D]
General Manager, S. Rly. v. Rangachari (1962) 2 SCR
586; T. Devadasan v. Union of India [1964] 4 SCR
680; State of Kerala v. N.M. Thomas (1976) 2 SCC 310
: [1976] 1 SCR 906; Indra Sawhney v. Union of India
(1992) 3 Supp SCC 217 : [1992] 2 Suppl. SCR 454;
Union of India v. National Federation of the Blind
(2013) 10 SCC 772 : [2013] 9 SCR 1023; Govt. of
India v. Ravi Prakash Gupta (2010) 7 SCC 626 : [2010]
7 SCR 851; Rajeev Kumar Gupta v. Union of India
(2016) 13 SCC 153 : [2016] 3 SCR 407; Siddaraju v.
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State of Karnataka (2020) 19 SCC 572; State of Kerala
v. Leesamma Joseph (2021) 9 SCC 208; Saurav Yadav
v State of Uttar Pradesh (2021) 4 SCC 542 : [2020] 11
SCR 281; M. Nagaraj v. Union of India (2006) 8 SCC
212 : [2006] 7 Suppl. SCR 336 - referred to.
Case Law Reference
In the judgment of Dipankar Dutta, J.
[2010] 7 SCR 851
referred to
Para 6
[2013] 9 SCR 1023
referred to
Para 6
[2016] 3 SCR 407
referred to
Para 12
(2020) 19 SCC 572
referred to
Para 12
(2021) 9 SCC 208
referred to
Para 12
(2014) 15 SCC 481
referred to
Para 28
[1992] 2 Suppl. SCR 454
referred to
Para 36
In the judgment of S. Ravindra Bhatt, J.
[1962] 2 SCR 586
referred to
Para 2
[1964] 4 SCR 680
referred to
Para 2
[1976] 1 SCR 906
referred to
Para 2
[1992] 2 Suppl. SCR 454
referred to
Para 2
[2013] 9 SCR 1023
referred to
Para 6
[2010] 7 SCR 851
referred to
Para 6
[2016] 3 SCR 407
referred to
Para 7
(2020) 19 SCC 572
referred to
Para 8
(2021) 9 SCC 208
referred to
Para 9
[2020] 11 SCR 281
referred to
Para 12
[2006] 7 Suppl. SCR 336
referred to
Para 13
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 529 of
2023.
From the Judgment and Order dated 16.06.2014 of the High Court
of Judicature at Bombay in WP No. 2753 of 2006.
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With
Civil Appeal No. 530 of 2023.
Mrs. Madhvi Divan, A.S.G., Jaideep Gupta, Sr. Adv., H. S. Parihar,
Kuldeep S. Parihar, Ms. Ikshita Parihar, B. Krishna Prasad, Krishna
Mohan K, Dania Nayyar, Pawanshree Agrawal, Mukesh Kumar Maroria,
Raj Bahadur Yadav, Anish Kumar Gupta, Mrs. Diksha Rai, Mrs. Apoorv
Kurup, Mrs. Aakansha Kaul, Mrs. Vaishali Verma, Shashank Bajpai,
Prateek Dhankar, Advs. for the appearing parties.
The Judgments/Order of the Court were delivered by
DIPANKAR DATTA, J.
THE CHALLENGE:
1. Reserve Bank of India (hereafter 'RBI', for short) and the
Union of India (hereafter 'GoI' for short) are in appeal, by special leave,
mounting challenge to the judgment and order dated 16th June, 2014
passed by the High Court of Judicature at Bombay on Writ Petition
No.2753 of 2006 presented before it by the common first respondent
(hereafter 'Mr. Nair', for short).
FACTS:
2. The facts leading to these appeals reflect the grim struggle of
Mr. Nair, a person having 'Post-Polio Paralysis of Limbs' with 50%
disability to secure promotion to the post of Assistant Manager in the
RBI by claiming benefit envisaged by the Persons with Disabilities (Equal
Opportunity, Protection of Rights and Full Participation) Act, 1995
(hereafter 'the PwD Act, 1995') as well as various office memoranda
issued from time to time by the Department of Personnel and Training
(hereafter 'DoPT', for short) of the Ministry of Personnel, Public
Grievances and Pensions, GoI, and circulars issued by the RBI.
3. Mr. Nair, joined the services of the RBI, on 27th September,
1990 as Coin/Note Examiner, Grade-II/Clerk on a vacancy reserved
for a person with disability. In due course of time, Mr. Nair participated
in the All India Merit Test for the Panel Year 2003, conducted sometime
between 26th April and 3rd July, 2004 by the RBI, for securing his
promotion to a Class-I post. The standards fixed for qualifying in the
examination were the same for general candidates as well as persons
with disabilities. Apart from fulfilling other conditions, Mr. Nair was
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required to obtain 95 (ninety-five) marks to qualify for promotion. Results
were declared on 19th October, 2004. Having obtained 92 (ninety-two)
marks, he fell short of the qualifying marks by only 3 (three) marks.
Notwithstanding fulfillment of other eligibility criteria for promotion, Mr.
Nair was not considered for promotion owing to such shortfall. Since
circulars issued by the GoI contemplated condonation of short fall to the
extent of 5 (five) marks for SC/ST candidates, Mr. Nair submitted a
representation dated 18th December, 2004 seeking grant of benefit of
relaxation as available to him "on par with SC/ST category candidates"
and also requested to include his name in the panel of selected candidates.
By a reply dated 25th May, 2005, the RBI informed Mr. Nair that there
is no provision for extending grace marks to persons with disabilities in
promotional examinations. Immediately on the next day, Mr. Nair
submitted a further representation and while inviting attention to circular
dated 5th July, 2000 (extending reservation to physically handicapped
persons in promotions up to S.O. Grade 'A' in the general side where
not much of moving from the seat is involved) and the Master Circular
dated 19th October, 2004 (hereafter 'Master Circular', for short) on the
subject of 'Reservation in Recruitment and Promotions in Bank' for
persons with disabilities, both issued by the RBI, sought remedial action.
This was followed by a spate of representations which, however, proved
abortive.
4. The pursuit to have the shortfall in marks condoned not having
been favourably considered by the RBI, thereby resulting in his nonpromotion to the post of Assistant Manager Grade - I, drove Mr. Nair to
knock the doors of the High Court by instituting a writ petition seeking,
inter alia, the following relief: -
"a) This Hon'ble Court be pleased to call for the records of
the case and after perusing the same be pleased to issue a
writ of mandamus or a writ in the nature of mandamus or any
other writ order or direction, directing Respondents to provide
relaxation of conditions and/or providing grace marks to the
candidate with disabilities for the purpose of placing the
disabled candidates in the zone of consideration in All India
Merit Test for the Panel Year 2003 in the Respondents'
establishment and further be pleased to direct the Respondents
to place the Petitioner in the panel of selected candidates for
promotion in All India Merit Test for the Panel Year 2003
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conducted by the Respondents in the year 2004 and be
pleased to direct the Respondents to consider the candidature
of the Petitioner for promotion to Grade A in the Physically
Handicapped Employees category.
b) The Respondents be ordered to implement the 3%
Reservation in promotion for the persons with disability in
toto to all the posts identified by the Respondents under
Circular Nos.49 and 18 dated 05.07.2000 and 19.10.2004
respectively."
5. The writ petition was contested by the RBI by filing a counter
affidavit dated 8th February, 2008. Referring to Office Memorandum
(hereafter 'OM', for short) dated 29th December, 2005 on the subject of
"Reservation for the Persons with Disabilities" which consolidated
all existing instructions in line with the PwD Act, 1995 and clarified
certain issues including procedural matters, it was contended that for
persons with disabilities 3 (three) per cent of vacancies in case of direct
recruitment to Groups 'A', 'B', 'C' and 'D' have to be reserved; and
(three) per cent of the vacancies in case of promotions, only to identified
Groups 'C' and 'D' posts in which the element of direct recruitment, if
any, does not exceed 75 (seventy-five) per cent, have to be reserved.
Further, it was contended by referring to a clarification provided by the
GoI, contained in OM dated 25th October, 2002, that "(T)here is no
reservation for the persons with disabilities when promotions are
made to Group 'A' and Group 'B' posts". Insofar as circular dated 5th
July, 2000 of the RBI is concerned, it was pleaded that instructions
contained therein were withheld and not given effect. Finally, reference
was made to paragraph 22 of the OM dated 29th December, 2005
providing as follows:
"If sufficient number of persons with disabilities are not
available on the basis of the general standard to fill all the
vacancies reserved for them, candidates belonging to this
category may be selected on relaxed standard to fill up the
remaining vacancies reserved for them provided they are not
found unfit for such post or posts. Thus, to the extent the
number of vacancies reserved for persons with disabilities
cannot be filled on the basis of general standards, candidates
belonging to this category may be taken by relaxing the
standards to make up the deficiency in the reserved quota
RESERVE BANK OF INDIA & ORS. v. A.K. NAIR & ORS.
[DIPANKAR DATTA, J.]
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subject to the fitness of these candidates for appointment to
the post/posts in question."
6. The Division Bench of the High Court was referred to its
coordinate Bench decision in National Confederation for Development
of Disabled & Anr. vs. Union of India & Ors.1, where the prayer was
for issuing a mandamus to the respondents to appoint disabled persons
in terms of section 33 of the PwD Act, 1995 in Indian Administrative
Service posts by promotion from the State Civil Services or by selection
from persons who hold gazetted posts in connection with the affairs of
the State but are not members of the State Civil services, as per their
entitlements, retrospectively from 1996 and to comply with the said
provisions hereafter. The decision in Govt. of India & Anr. vs. Ravi
Prakash Gupta & Anr.2 was also referred, where this Court dealt with
the question of reservation in the matter of appointment to All India
Service and while confirming the decision under challenge held that
reservation was applicable to posts in Groups 'A', 'B', 'C' and 'D'.
Attention of the Division Bench was also invited to the decision in Union
of India vs. National Federation of the Blind3, where this Court was
of the view that "the computation of reservation for persons with
disabilities has to be computed in case of Group A, B, C and D
posts in an identical manner, viz. computing 3% reservation on total
number of vacancies in the cadre strength, which is the intention of
the legislature". The Division Bench read the decision as laying down
the law that reservation has to be computed with reference to total number
of vacancies in the cadre strength and, therefore, no distinction can be
made between the posts to be filled in by direct recruitment and by
promotion. It was, accordingly, held that the "total number of vacancies
in the cadre strength would include the vacancies to be filled in by
nomination and vacancies to be filled in by promotion". Certain
directions were issued by this Court in paragraph 55, which led to issuance
of a further OM dated 3rd December, 2013 by the DoPT modifying
paragraph 6 of OM dated 29th December, 2005.
7. On consideration of the said decision and the modification so
made by the OM dated 3rd December, 2013, the High Court in National
Confederation for Development of Disabled (supra) was of the view
1 PIL 106 of 2010
2 (2010) 7 SCC 626
3 (2013) 10 SCC 772
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that the respondents would have to give benefits of reservation to persons
with disabilities in the matter of promotion to posts in the Indian
Administrative Service by applying OM dated 29th December, 2005 and
the subsequent office memorandum consistent with the aforesaid decision
of this Court, with effect from the date of issuance of OM dated 29th
December, 2005.
8. Significantly, the decision in National Confederation for
Development of Disabled (supra) was the subject matter of challenge
at the instance of the GoI in a special leave petition, which was dismissed
on 12th September, 2014. A review petition was thereafter filed by the
GoI, which was also dismissed by an order dated 5th December, 2014,
on merits. Another special leave petition that was carried by the GoI to
this Court from the order dismissing the review petition stood dismissed
on 27th February, 2015. Thus, insofar as the GoI is concerned, the
judgment and order dated 4th December, 2013 in National Confederation
for Development of Disabled (supra) attained finality.
9. Upon consideration of the pleadings of the parties, the PwD
Act, 1995, OM dated 29th December, 2005 and OM dated 3rd December,
2013 issued by the DoPT as well as the decisions that were referred to
it, the High Court in the impugned judgment and order held as follows: -
"9. In view of the above discussion, we have no hesitation in
holding that modification made by para 5 of the OM dated 3
December 2013 to para 14 of the OM dated 29 December
2005 will apply with effect from 29 December 2005 and
therefore the respondent-Reserve Bank of India shall apply
reservation for persons with disabilities on the basis of total
number of vacancies appearing in direct recruitment quota
as well as in promotion quota in Group 'A' and Group 'B'
posts respectively with effect from 29 December 2005.
10. If on the basis of above direction, any vacancy is required
to be filled in the cadre of Asst. Manager and/or other
equivalent posts in Group 'A' or Group 'B' on or after 29
December 2005, the Reserve Bank of India shall apply
reservation policy with effect from 29 December 2005 and if
as a consequence therefore the petitioner's case is required
to be considered for such promotion, respondents-Reserve
Bank of India shall consider the petitioner's case for
promotion.
RESERVE BANK OF INDIA & ORS. v. A.K. NAIR & ORS.
[DIPANKAR DATTA, J.]
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11. It is clarified that this direction is only in the context of
controversy about applicability of reservation policy to
promotion and if there are other requirements under the
relevant rules, this Court may not be treated to have expressed
any opinion on the question of the petitioner satisfying such
requirements.
12. The direction given herein above shall be carried out
within a period of three months from today."
10. It appears that while allowing the writ petition of Mr. Nair, the
Division Bench of the High Court followed the earlier view expressed
by its coordinate Bench.
11. Mr. Nair had applied for a review4 of the judgment and order
dated 16th June, 2014 on the ground that the High Court had erred in not
clarifying the position on grace marks and in not addressing his claim of
qualification/seniority from the date of eligibility. When the same was
taken up for consideration on 31st October, 2014, the High Court was
informed of issuance of notice by this Court on the petition for special
leave to appeal filed by the RBI. In view thereof, without examining the
merits of the review petition, the same was disposed of by the High
Court with liberty to Mr. Nair to seek revival after disposal of the
proceedings before this Court.
BROAD OVERVIEW OF THE LAW:
12. Much water has flown under the bridge since the impugned
judgment dated 16th June, 2014 was rendered by the High Court. On the
legislative front, the Parliament enacted the Rights of Persons with
Disabilities Act, 2016 (hereinafter referred to as 'the PwD Act, 2016')
repealing the PwD Act, 1995. On the judicial side, pronouncements in
Rajiv Kumar Gupta and Ors. vs. Union of India and Ors.5, Siddaraju
vs. State of Karnataka and ors.6, and State of Kerala and Ors. vs.
Leesamma Joseph7 have seen the light of the day. The executive, in its
turn, has complied with the directions contained in an order dated
28th September, 2021 of this Court8 arising out of Siddaraju (supra)
4 RP No. 55 of 2014
5 (2016) 13 SCC 153
6 (2020) 19 SCC 572
7 (2021) 9 SCC 208
8 M.A. 2171/2020 in Civil Appeal No.1567/2017
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resulting in issuance of OM dated 17th May, 2022 by the DoPT. These
are undoubtedly developments subsequent to the impugned judgment;
but since they could have a bearing on the merits of Mr. Nair's claim
that he has unjustly been deprived of promotion to the post of Assistant
Manager, the same cannot be kept out of our consideration. Indeed,
after OM dated 17th May, 2022 was issued, the RBI has also issued a
circular dated December 8, 2022 conveying its decision to reserve 16
(sixteen) vacancies for persons with disabilities out of 600 (six hundred)
vacancies on the post of Assistant Manager Grade - 'A', to be filled up
by a departmental examination scheduled on 10th December, 2022.
13. The law relating to grant of equal opportunities, protection of
rights, and full participation of persons with disabilities was codified by
the PwD Act, 1995. Chapter VI of the PwD Act, 1995, titled
'EMPLOYMENT', containing sections 32 to 41, inter alia, mandated
identification of posts which could be reserved for persons with disabilities
for appointment, the extent of reservation and the procedure to be
followed in the matter of recruitment. Significantly, Chapter VI did not
contain any express provision mandating an 'employer' or an
'establishment' as defined in clauses (j) and (k) of section 2, respectively,
to reserve any percentage of posts for promotion to persons with
disabilities serving in the feeder cadre. However, Chapter VIII titled
'NON-DISCRIMINATION' in sub-section (2) of section 47 ordained
that no promotion shall be denied to a person merely on the ground of his
disability. Sections 44 to 47, under Chapter VIII, envisaged that persons
with disabilities should not face any discrimination in any of the fields
specified therein, with section 47 particularly dealing with nondiscrimination in Government employment. It is true that sub-section (2)
of section 47 does not contain any mandate requiring the employer or
establishment to make reservation in promotional posts; on the contrary,
it is a command to the employer or establishment that merely because
an employee is suffering from a disability, as defined in section 2(i) of
the PwD Act, 1995, he is not to be denied promotion.
14. However, it is noticed that even before the PwD Act, 1995
was enacted, OM dated 20th November, 1989 had been issued by the
DoPT whereby, reservations promotions (i) within Group 'D', (ii) from
Group 'D' to Group 'C' and (iii) within Group 'C' to the three categories
of 'physically handicapped persons', viz. the visually handicapped, the
hearing handicapped and the orthopedically handicapped, were
RESERVE BANK OF INDIA & ORS. v. A.K. NAIR & ORS.
[DIPANKAR DATTA, J.]
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permissible. It was, however, clarified that each of the three categories
of physically handicapped persons would be allowed reservation at 1
(one) per cent each and that applicability of the reservation would be
limited to promotions being made to those posts that are identified as
being capable of being filled/held by the appropriate category of physically
handicapped.
15. During the period intervening the advent of the PwD Act,
1995 and issuance of OM dated 29th December, 2005, the DoPT went
on to issue Office Memoranda dated 18th February, 1997, 16th January,
1998 and 25th October, 2022. We need not consider the said office
memoranda in any great detail except referring to the common thread
running through them, i.e., the DoPT sought to carve out the benefit of
reservation in promotion for persons with disabilities even though whether
there was an explicit legislative mandate to that effect was indeed a
grey area for some.