Persons With Disability Act 1995 Mandated Reservation In Promotions Too : Supreme Court Grants Relief To RBI Employee

Recently, the Supreme Court invoked Article 142 of the Constitution of India to direct RBI to extend the benefit of reservation in promotion to an employee with disability, who was denied the same for a long time(Reserve Bank of India v. A.K. Nair And Ors).

The challenge in the petition pertained to securing promotion to the post of Assistant Manager in the RBI under Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995. In 2003, the employee had appeared in the All India Merit Test to secure promotion to a Class-I post. But he fell short of the qualifying marks by 3 marks. He made representations seeking condonation of the shortfall marks, which were not considered.

A Bench comprising Justice S. Ravindra Bhat and Justice Dipankar Datta granted notional promotion to him to the post of Assistant Manager Grade A from the date of presentation of his writ petition before the Bombay High Court (27th Sept, 2006) and actual promotion from the last date for compliance of the order of the High Court (15th Sept, 2014). The Bench granted two months’ time to complete the process and four months’ time to compute and release the monetary benefits accruing to him. It also clarified that in two years when he retires, in computing his retiral benefits his promotion from 27th Sept, 2006 should be taken into consideration.

Justices Ravidnra Bhat and Dipankar Datta wrote separate but concurring judgments.

Referring to various precedents, the main judgment authored by Justice Datta stated : "There is, therefore, no dearth of authority for the proposition that the PwD Act, 1995 not only mandated reservation in appointment but also contemplated reservation in promotion".

While Justice Bhat did not disagree with the relief granted to the petitioner, he expressed certain reservations regarding the interpretation that PwD Act mandated reservation in promotions as well; he added a word of caution that reasonable accommodation should not open floodgates for those benefiting from other horizontal reservations to seek reservation in promotion in public services.

Factual Background

One AK Nair had joined the RBI as a Coin Examiner in 1990 on a vacancy reserved for persons with disability. In 2003 he took the All India Merit Test to secure promotion to a Class-I post. The standard for qualifying the test was the same for general candidates and those with disabilities. Eventually the results were declared and he fell short of the qualifying marks by 3 marks. Considering that the Union Government had issued circulars contemplating condonation of short fall of five marks for SC/ST candidates, Nair made representations to the authorities seeking grant of relaxation on par with SC/ST category of candidates. The RBI responded that there was no provision for extending the grace marks to persons with disabilities. Thereafter, Nair made further representations, but in vain. Nair approached the Bombay High Court, which held that RBI should 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’ or ‘Group B’ posts with effect from 29th December, 2005. Nair filed a review petition on the ground that the High Court did not adjudicate his claim of qualification from the date of eligibility. Since, before the review petition came up for hearing the Supreme Court had issued notice in the SLP filed by the RBI, the High Court dismissed the review petition granting liberty to revive it after disposal of the proceedings before the Apex Court.

Analysis by the Supreme Court

Justice Dipankar Datta :

The judgment authored by Justice Dipankar Datta noted that the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 did not contain any express provision for reservation to persons with disabilities serving in the feeder cadre, though there were provisions indicating that merely because an employee is one living with a disability they ought not to be denied promotion. However, he reiterated that mere absence of an express mandate for reservation in promotion for persons with disabilities did not absolve the Government from keeping reserved vacancies on promotional posts.

The Rights to Persons with Disabilities Act, 2016 expressly provides for reservation in promotion in accordance with instructions issued by the Government from time to time. In 2020, a three judge Bench of the Apex Court in Siddaraju v. State of Karnataka upheld a Division Bench judgment in Rajeev Kumar Gupta v. Union of India wherein it had ruled that the rule of not granting reservation in promotion laid down in Indra Sawhney v. Union of India is not applicable to persons with disabilities. It held that the Government should extend 3 % 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. As per Government OM dated 17.05.2022, the benefit of reservation in promotion has been extended to posts in ‘Group A’ in the lowest grade.

Reference was also made to the judgment in State of Kerala vs Leesamma Joseph which upheld the right of persons with disabilities to seek reservation in promotions.

The Judge culled out the primary issue to be adjudicated upon in the present case as ‘whether the RBI by failing to consider Mr. Nair for promotion, a right guaranteed by Article 16 of the Constitution, on application of relaxed standards committed an illegality’. He noted that though the decisions with respect to reservation in promotion for persons with disabilities were rendered by the Apex Court years after Nair had taken the Panel Year 2003 examination, there is no bar in application of the law laid down in Siddaraju retrospectively. It was further stated it is trite law that the interpretation of a provision of law relates back to the date of the law itself. However, the only exception is an expressed declaration by the Apex Court that the interpretation is to be applied prospectively. He opined that Nair had a statutory right to claim reservation in promotion appointment in Group A posts in terms of PwD Act, 1995.

With respect to the issue of the RBI not condoning the shortfall of marks, Justice Datta was of the view that it was rather harsh on the part of the RBI to apply the same standards for general candidates and those with disabilities. RBI, as a model employer, ought to have taken an informed decision in this regard commensurate with the aspirations of persons with disabilities.

Justice S. Ravindra Bhat:

The Judge agreed with the proposed relief and directions indicated by Justice Datta, but made certain observations on the larger issue of reservation in promotions for any class of citizens other than those covered by Article 16(4A) of the Constitution of India. Noting that the PwD Act, 1995 did not provide for reservations in promotion, he indicated that in absence of such statutory power the inclusion of the same by the Apex Court as a matter of right might be contrary to Indra Sawhney.

“While Indra Sawhney (supra) no doubt pertained to vertical reservations for backward classes of citizens, this understanding of horizontal reservations infact seeded from this very judgment. 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”, the Judge recorded in the order.

He further added that the intention of Article 16 was not to compromise on administrative efficiency. A certain portion (promotion) cannot be reserved for a certain class of citizen and not the others who were also initially appointed on the basis of horizontal reservation, the only exception being SC/ST appointees as envisaged in Article 16(4A). Lauding the intention behind the PwD Act, 2016, as a note of caution, he added that reasonable accommodation ought not to open flood gates for demands of reservation in promotional vacancies in public service by those benefiting from other kinds of horizontal reservation.

Case details

Reserve Bank of India v. A.K. Nair And Ors.| 2023 LiveLaw SC |Civil Appeal No. 529 of 2023| 4th July, 2023| Justice S. Ravindra Bhat and Justice Dipankar Datta|

Citation : 2023 LiveLaw (SC) 521; Supreme Court Citation : 2023 INSC 613

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