RESERVE BANK OF INDIA & ORS. versus A.K. NAIR & ORS.

[2023] 10 S.C.R. 775 : 2023 INSC 613

RESERVE BANK OF INDIA & ORS.

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 ofRights and Full Participation) Act, 1995 – s. 33 – Rights of Personswith Disabilities Act, 2016 – s. 34 – Reservation in promotion forperson with disabilities – Bank employee having post polio paralysisof limbs with 50% disability – Appeared for All India Merit Test, tosecure promotion to Class I post, however, fell short of qualifyingmarks by three marks – Representation for condonation of shortfall of marks, on par with SC/ST category but not considered – Writpetition by the employee – High Court directed the bank to applyreservation for persons with disabilities on the basis of total numberof vacancies appearing in direct recruitment quota as well as inpromotion quota in Group ‘A’ and Group ‘B’ posts respectively –Review petition filed by the employee since the High Court did notclarify the position on grace marks and his claim of qualification/seniority from the date of eligibility – Disposed of, without examiningthe merits – Held: PwD Act, 1995 not only mandated reservation inappointment but also contemplated reservation in promotion – PwDAct, 1995 did not contain any express provision mandatingreservation of posts for promotion to persons with disabilities servingin the feeder cadre though it is ordained that no promotion shall bedenied to person merely on the ground of his disability – Mereabsence of an express mandate in requiring reservation in promotionfor persons with disabilities could not have been construed as notobliging the appropriate Government not to keep reserved vacancieson promotional posts – On facts, it was harsh to apply standardswhich are applicable to general candidates to the employee whilehe competed with such general candidates for securing hispromotion – Bank ought to have taken an informed decision in thisregard commensurate with the aspirations of persons with disabilities– Omission or failure of the Bank in condoning the shortfall inmarks coupled with the neglect to identify Group ‘A’ post suitable

CDEF

Afor reservation to accommodate the employee on promotion isunjustifiable – In view thereof, issuance of direction to the Bank togrant promotion to the employee on the post of Assistant ManagerGrade-‘A’ – Service law – Constitution of India – Art 142.

Disposing of the appeals, the CourtBPer Dipankar Datta, J.

HELD: 1.1 Mere absence of an express mandate in ChapterVI of the Persons with Disabilities (Equal Opportunity, Protectionof Rights and Full Participation) Act, 1995, requiring reservationin promotion for persons with disabilities could not have beenCconstrued as not obliging the appropriate Government not tokeep reserved vacancies on promotional posts for those answeringclauses (i) to (iii) of section 33. Though the language used insection 33 could admit of little bit of confusion, the crucial wordsthere are “shall appoint in every establishment”. Paraphrased, itDimplies that while the appropriate Government is makingappointment in every establishment, it ought to reserve aminimum of 3 (three) per cent vacancies for persons or class ofpersons with disability, of which 1 (one) per cent each shall bereserved for those persons with disabilities of the naturementioned in the clauses therein, i.e., (i) blindness or low vision,E(ii) hearing impairment, and (iii) locomotor disability or cerebralpalsy, and that appointments shall be made on the posts identifiedfor each such disability as in the said clauses. It is, therefore, thestatutory duty enjoined by section 33 that there must beappointment of persons with disabilities in every establishmentFwhich ought not to be less than 3 (three) per cent but minimumof 1 (one) percent of vacancies, available on identified posts foreach disability, has to be reserved. The confusion, might havestemmed from the narrow interpretation of the word “appoint”,without realizing that “promotion” is also included within“appointment”. The term “appointment” is quite broad andGincludes appointment by ‘direct recruitment’ as well asappointment by way of ‘promotion’. Prior to Rajiv Kumar Gupta’s(case), there was no authoritative pronouncement on the aspectof reservation in promotion. The interpretation of section 33 ofthe PwD Act, 1995 made by Rajiv Kumar Gupta’s case finds itsHresonance in Siddaraju’s case. [Para 16][792-E-H; 793-A-C]

1.2 The Rights of Persons with Disabilities Act, 2016expressly makes available benefits of reservation to promotionalposts for persons with disabilities in that the first proviso tosection 34 ordains that reservation in promotion shall be inaccordance with such instructions as are issued by the appropriateGovernment from time to time. Law within the meaning of Article141 of the Constitution of India having been declared bySiddaraju’s and the GoI having implemented the order of thisCourt dated 28th September, 2021 noted above and issued OMdated 17th May, 2022, the same constitutes “instructions” ascontemplated by the first proviso to section 34 of the PwD Act,2016. Such instructions contemplate reservation in promotion toposts in Group – ‘A’ in the lowest grade. [Para 17][793-C-E]

1.3 When the provisions of the PwD Act, 1995 and the PwDAct, 2016 in relation to reservation in promotion for persons withdisabilities are contrasted, it is clear as crystal that what wasimplicit in the former has been made explicit by the latter. [Para18][793-E-F]

1.4 There is no dearth of authority for the proposition thatthe PwD Act, 1995 not only mandated reservation in appointmentbut also contemplated reservation in promotion. Any perceptionand understanding of section 33 of the PwD Act, 1995 notcontemplating reservation in promotion is erroneous andfallacious. [Para 40 and 41][800-A-B]

1.5 OM dated 29th December, 2005 having been set asidein Rajeev Kumar Gupta’s case, the first question as to whethermodification of paragraph 14 of the OM dated 29[th] December2004 brought about by OM dated 8th December, 2013, wouldapply retrospectively, does not survive for consideration.Furthermore, Rajeev Kumar Gupta’s case having directed theGoI to extend 3 (three) per cent reservation to the persons withdisabilities in all identified posts in Group ‘A’ and Group ‘B’,irrespective of the mode of filling up of such posts, and the largerBench in Siddaraju’s case having given its stamp of approval tosuch decision, the second question also stands squarely answeredagainst the appellants. Finally, the question as to whether theHigh Court was right in relying upon National Confederation of

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ADevelopment of Disabled’s case is no longer res integra havingregard to the multiple decisions of this Court on the point affirmingthe position that reservation in employment contemplated insection 33 of the PwD Act, 1995 covers all posts identified foreach of the 3 (three) kinds of disability mentioned therein and isnot restricted to Group ‘C’ and Group ‘D’ posts. The view takenBtherein is accepted. [Para 42][800-B-F]

1.6 The version of the RBI before the High Court was thatthere is no provision for reservation in promotional posts in Grade–‘A’ for persons with disabilities; hence, benefit of promotion ona reserved vacancy could not be granted to the respondent. ThisCwas indeed the ostensible reason for which the relaxed standardsof assessment available for SC/ST candidates was not extendedto persons with disabilities, fortiori, to the respondent. In otherwords, the respondent’s claim for promotion on reserved vacancyfor persons with disabilities, upon application of relaxed standards,Dcould not have been considered in the absence of any identifiedGroup ‘A’ post. That the appropriate Government must makeavailable reservation in the matter of appointment of personswith disabilities in identified posts of Group ‘A’ and Group ‘B’had been conclusively and authoritatively decided by this Courtin Ravi Prakash Gupta’s case and National Federation of the Blind’sEcase by the time the impugned judgment and order was rendered.That being the position, no valid contention could have beenadvanced that reservation for persons with disabilities is notavailable for appointment on Group-‘A’ posts. What remainedwas whether reservation for persons with disabilities is available

Ffor promotional appointment on Group – ‘A’ posts. That issuehas also been given quietus by Rajiv Kumar Gupta’s case,Siddaraju’s case and Leesamma Joseph’s case. The two bigimpediments in the path of the respondent, thus, stand removedby reason of pragmatic and reasonable interpretation of thePwD Act, 1995. [Para 45][801-G-H; 802-A-D]G

1.7 It cannot, however, be gainsaid that when the respondenthad participated in the Panel Year 2003 examination, no decisionhad been rendered by this Court that reservation in promotion is

permissible in respect of Group ‘A’ posts. It is equally true thatthis Court while interpreting sections 32 and 33 of the PwD Act,1995 did not declare the law laid down by it to have prospectiveapplication. It is principle, well-settled in law, that theinterpretation of provision of law relates back to the date of thelaw itself. This is essentially for the reason that the duty of theCourt is not to legislate but to interpret the law. However, suchprinciple is subject to the exception that this Court may, in agiven case, declare that its interpretation would have effectprospectively. That is not the express intention of this Court inany of the decisions referred. This being the position in law, thereis no doubt that the respondent did have statutorily conferredright all through to claim that reservation in promotionalappointment 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 notcondoning the shortfall of 3 (three) marks pertaining to the 2003exa Indra Sawhney’s mination taken by the respondent to enablehim secure promotion at par with the relaxed standards applicableto SC/ST candidates, it is noted from the communication dated18.10.2006 issued by the Banking Division, Department ofEconomic Affairs, Ministry of Finance, GoI that the same surfacedas follow-up step to comply with this Court’s order dated19.03.2002 in A.I. Confederation’s case. Even otherwise, to reachout to persons with disabilities and grant them the facilities andbenefits that the 1995 Act envisaged, it was rather harsh to applystandards which are applicable to general candidates to therespondent while he competed with such general candidates forsecuring his promotion. RBI, as model employer, ought to havetaken an informed decision in this regard commensurate withthe aspirations of persons with disabilities. [Para 47 and 48][802-H; 803-A-C]

1.9 Persons with disabilities are not entitled to be judgedby the same relaxed standards that are applied to assesscandidature of SC/ST candidates. The omission or failure of theRBI in condoning the shortfall in marks coupled with the neglectto identify Group ‘A’ post suitable for reservation to

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Aaccommodate the respondent on promotion appears to to beindefensible. [Para 49 and 50][803-C-D]

1.10 There was no authoritative pronouncement of thisCourt interpreting the PwD Act, 1995, making availablereservation in promotional appointments for persons withBdisabilities in Group ‘A’ posts, when the respondent took theexamination for promotion to the post of Assistant Manager,Grade-I in 2004. The first time it came to be so declared waswhen the decision in Rajeev Kumar Gupta’s case was pronounced.As regards whether the RBI, in the circumstances, be directedto relax the standard of assessment and grant promotion to theCrespondent with retrospective effect, the High Court did notmandatorily direct grant of promotion to the respondent. TheHigh Court’s judgment, unintendedly, was confined to applicationof reservation policy. The High Court did not declare that therespondent should also be entitled to condonation of shortfall in

Dmarks with reference to the Panel Examination 2003. Insofar asother qualifying requirements under the relevant rules areconcerned, the High Court clarified that it may not be understoodto have expressed any opinion on the question of the respondentsatisfying such requirements. Given such contours of the order,it was open to the RBI to consider the respondent for promotion

Eand pass appropriate order either granting or denying himpromotion in accordance with the prevailing exposition of law.Instead of complying with the order, the RBI carried the judgmentand order to this Court on 12th September, 2014. GoI alsofollowed suit. It was the respondent who rushed to the High CourtFwith review petition within the period of limitation, whereuponhis rights have been kept open noticing pendency of the petitionfor special leave of the RBI. It seems that the RBI has on its owninvited 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 theGfact that the same were not available when the High Court decidedthe respondent’s writ petition finally. RBI might not have facedthis conundrum had the order of the High Court been compliedwith on time. [Paras 52 and 53][803-E-H; 804-A-D]

1.11 Dismissal without any observation has the potential ofgenerating further unnecessary litigation. At the same time,though the respondent did not file any cross-appeal, he had appliedfor review and has been conferred the liberty to revive the reviewpetition after disposal of proceedings by this Court. [Para 54][804-E-F]

1.12 Having regard to the materials on record and foranswering question to what extent relief can legitimately beextended to the respondent, it is considered appropriate to invokeArticle 142 of the Constitution “for doing complete justice” inthe cause. RBI is directed to grant notional promotion to therespondent on the post of Assistant Manager Grade-‘A’, to beeffective from the date of presentation of the writ petition beforethe High Court, i.e., 27th September, 2006 and actual promotionfrom 15th September, 2014, i.e., the last date for compliance ofthe order of the High Court. This exercise must be completedwithin period of 2 (two) months from date. The monetary benefitsaccruing to the respondent with effect from 15th September, 2014shall 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) 7SCC 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] 3SCR 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 (EqualOpportunity, Protection of Rights and Full Participation) Act, 1995did not contain provision for reservations in ‘promotions’ for

Apersons with disabilities appointees, unlike its successorenactment, the Rights of Persons with Disabilities Act, 2016,which enabled the State to do the same. Section 33 of the 1995Act only provided for 3% reservation for posts identified underSection 32, with 1% each for persons suffering from (i) blindnessor low vision; (ii) hearing impairment; and (iii) locomotor disabilityBor cerebral palsy. There is no mention of this extending topromotions. In the absence of such statutory power, its inclusionin the extant provisions by this Court is not beyond doubt. Itcannot be said that the manner in which such reservations havebeen granted in promotions-even if horizontally-as matter ofCright, is not contrary to the express prohibition of the same bythe nine judges in Indra Sawhney’s case. Therefore, there isserious reservation in its interpretation otherwise. [Para 10][820-G; 821-A-B]

1.2 While Indra Sawhney’s case no doubt pertained toDvertical reservations for backward classes of citizens. It cannotbe said that its operative portion on reservations in promotionsis inapplicable to other classes of citizens on that front alone.Such an exercise of distinguishing its application misses the cruxof its reasoning – that while provision of reservations in initialappointments furthers the mandate of substantive equality, itsEapplication to promotions militates against the same mandate. Itwas not the intention of Article 16 of the Constitution tocompromise on administrative inefficiency by culling the spirit ofcompetition-after all, positions gained by promotions taper higherup. To ear-mark certain portion to one class of citizens, and notFothers, who may have also gained initial appointments on thestrength of such horizontality (such as women, retired / ex-servicemen, etc.) is not constitutionally protected-the onlyexception to reservations in promotions is SC/ST appointees, asprovided under Article 16(4A). [Para 11][821-C-E]

G1.3 Horizontal reservations, unlike their verticalcounterparts, are not rigid, but have fluidity to them. candidateeligible for horizontal reservation is not coffined to their verticalcategory. Migrations are permissible to allow the best candidatesto emerge from this interlocking framework for reservations.However, such mechanism is unworkable in promotions, whereH

vertical and horizontal qualifiers are absent (barring those forSC/ST candidate. The (then) 3% reservations set aside for pesonswith disabilities candidates no longer remains horizontal, but isimplemented vertically. While the 2016 Act enables the State towork out this mechanism, such is conspicuously absent in the1995 Act. [Para 12][821-F-G]

1.4 This also leads to differential treatment of candidatesbelonging to the same backward class as recognized by Article16(4) of the Constitution. An OBC candidate who is also personwith disabilities, will be given preference over non-persons withdisabilities OBC candidate in promotions, which is impermissible.Additionally, on reading of T. Devadasan and N.M. Thomas’scase, it is relevant to note that while reservations for backwardclasses are to be carried forward, the 2016 Act permits carryingforward of horizontal reservations for persons with disabilitiescandidates for maximum period of two years. However, theamendment 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 thisCourt in M.Nagraj case.[Para 13][822-A-C]1.5 The laudable intent behind provision such as Section33 of the 1995 Act, and Section 34 of the 2016 Act, is undeniable.It is given that persons with disabilities need to beaccommodated, in public service. At the same time, thisreasonable accommodation ought not to open gates for demandsby those benefitting other kinds of horizontal reservation, forreservation in promotional vacancies in public services. [Para14][822-D]

General Manager, S. Rly. v. Rangachari (1962) 2 SCR586; T. Devadasan v. Union of India [1964] 4 SCR680; 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. ofIndia 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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AState of Karnataka (2020) 19 SCC 572; State of Keralav. Leesamma Joseph (2021) 9 SCC 208; Saurav Yadavv State of Uttar Pradesh (2021) 4 SCC 542 : [2020] 11SCR 281; M. Nagaraj v. Union of India (2006) 8 SCC212 : [2006] 7 Suppl. SCR 336 – referred to.

BCase Law Reference

In the judgment of Dipankar Dutta, J.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 529 of2023.

From the Judgment and Order dated 16.06.2014 of the High CourtHof Judicature at Bombay in WP No. 2753 of 2006.

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, KrishnaMohan K, Dania Nayyar, Pawanshree Agrawal, Mukesh Kumar Maroria,Raj Bahadur Yadav, Anish Kumar Gupta, Mrs. Diksha Rai, Mrs. ApoorvKurup, 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 theUnion of India (hereafter ‘GoI’ for short) are in appeal, by special leave,mounting challenge to the judgment and order dated 16[th] June, 2014passed by the High Court of Judicature at Bombay on Writ PetitionNo.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 ofMr. Nair, person having ‘Post-Polio Paralysis of Limbs’ with 50%disability to secure promotion to the post of Assistant Manager in theRBI by claiming benefit envisaged by the Persons with Disabilities (EqualOpportunity, Protection of Rights and Full Participation) Act, 1995(hereafter ‘the PwD Act, 1995’) as well as various office memorandaissued from time to time by the Department of Personnel and Training(hereafter ‘DoPT’, for short) of the Ministry of Personnel, PublicGrievances and Pensions, GoI, and circulars issued by the RBI.

3. Mr. Nair, joined the services of the RBI, on 27[th] September,1990 as Coin/Note Examiner, Grade–II/Clerk on vacancy reservedfor person with disability. In due course of time, Mr. Nair participatedin the All India Merit Test for the Panel Year 2003, conducted sometimebetween 26[th] April and 3[rd] July, 2004 by the RBI, for securing hispromotion to Class–I post. The standards fixed for qualifying in theexamination were the same for general candidates as well as personswith disabilities. Apart from fulfilling other conditions, Mr. Nair was

Arequired to obtain 95 (ninety-five) marks to qualify for promotion. Resultswere declared on 19[th] 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. Sincecirculars issued by the GoI contemplated condonation of short fall to theBextent of 5 (five) marks for SC/ST candidates, Mr. Nair submitted arepresentation dated 18[th] December, 2004 seeking grant of benefit ofrelaxation 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 reply dated 25[th] May, 2005, the RBI informed Mr. Nair that thereCis no provision for extending grace marks to persons with disabilities inpromotional examinations. Immediately on the next day, Mr. Nairsubmitted further representation and while inviting attention to circulardated 5[th] July, 2000 (extending reservation to physically handicappedpersons in promotions up to S.O. Grade ‘A’ in the general side wherenot much of moving from the seat is involved) and the Master CircularDdated 19[th] October, 2004 (hereafter ‘Master Circular’, for short) on thesubject of ‘Reservation in Recruitment and Promotions in Bank’ forpersons with disabilities, both issued by the RBI, sought remedial action.This was followed by spate of representations which, however, provedabortive.E

4. The pursuit to have the shortfall in marks condoned not havingbeen favourably considered by the RBI, thereby resulting in his non-promotion to the post of Assistant Manager Grade - I, drove Mr. Nair toknock the doors of the High Court by instituting writ petition seeking,inter alia, the following relief: -F

“a) This Hon’ble Court be pleased to call for the records ofthe case and after perusing the same be pleased to issue awrit of mandamus or writ in the nature of mandamus or anyother writ order or direction, directing Respondents to providerelaxation of conditions and/or providing grace marks to theGcandidate with disabilities for the purpose of placing thedisabled candidates in the zone of consideration in All IndiaMerit Test for the Panel Year 2003 in the Respondents’establishment and further be pleased to direct the Respondentsto place the Petitioner in the panel of selected candidates forpromotion in All India Merit Test for the Panel Year 2003

conducted by the Respondents in the year 2004 and bepleased to direct the Respondents to consider the candidatureof the Petitioner for promotion to Grade in the PhysicallyHandicapped Employees category.

b) The Respondents be ordered to implement the 3%Reservation in promotion for the persons with disability intoto to all the posts identified by the Respondents underCircular Nos.49 and 18 dated 05.07.2000 and 19.10.2004respectively.”

5. The writ petition was contested by the RBI by filing counteraffidavit dated 8[th] February, 2008. Referring to Office Memorandum(hereafter ‘OM’, for short) dated 29[th] December, 2005 on the subject of“Reservation for the Persons with Disabilities” which consolidatedall existing instructions in line with the PwD Act, 1995 and clarifiedcertain issues including procedural matters, it was contended that forpersons with disabilities 3 (three) per cent of vacancies in case of directrecruitment to Groups ‘A’, ‘B’, ‘C’ and ‘D’ have to be reserved; and(three) per cent of the vacancies in case of promotions, only to identifiedGroups ‘C’ and ‘D’ posts in which the element of direct recruitment, ifany, does not exceed 75 (seventy-five) per cent, have to be reserved.Further, it was contended by referring to clarification provided by theGoI, contained in OM dated 25[th] October, 2002, that “(T)here is noreservation for the persons with disabilities when promotions aremade to Group ‘A’ and Group ‘B’ posts”. Insofar as circular dated 5[th]July, 2000 of the RBI is concerned, it was pleaded that instructionscontained therein were withheld and not given effect. Finally, referencewas made to paragraph 22 of the OM dated 29[th] December, 2005providing as follows:

“If sufficient number of persons with disabilities are notavailable on the basis of the general standard to fill all thevacancies reserved for them, candidates belonging to thiscategory may be selected on relaxed standard to fill up theremaining vacancies reserved for them provided they are notfound unfit for such post or posts. Thus, to the extent thenumber of vacancies reserved for persons with disabilitiescannot be filled on the basis of general standards, candidatesbelonging to this category may be taken by relaxing thestandards to make up the deficiency in the reserved quota

Asubject to the fitness of these candidates for appointment tothe post/posts in question.”

6. The Division Bench of the High Court was referred to itscoordinate Bench decision in National Confederation for Developmentof Disabled & Anr. vs. Union of India & Ors.[1], where the prayer wasBfor issuing mandamus to the respondents to appoint disabled personsin terms of section 33 of the PwD Act, 1995 in Indian AdministrativeService posts by promotion from the State Civil Services or by selectionfrom persons who hold gazetted posts in connection with the affairs ofthe State but are not members of the State Civil services, as per theirentitlements, retrospectively from 1996 and to comply with the saidCprovisions hereafter. The decision in Govt. of India & Anr. vs. RaviPrakash Gupta & Anr.[2]was also referred, where this Court dealt withthe question of reservation in the matter of appointment to All IndiaService and while confirming the decision under challenge held thatreservation was applicable to posts in Groups ‘A’, ‘B’, ‘C’ and ‘D’.DAttention of the Division Bench was also invited to the decision in Unionof India vs. National Federation of the Blind[3], where this Court wasof the view that “the computation of reservation for persons withdisabilities has to be computed in case of Group A, B, and Dposts in an identical manner, viz. computing 3% reservation on totalnumber of vacancies in the cadre strength, which is the intention ofEthe legislature”. The Division Bench read the decision as laying downthe law that reservation has to be computed with reference to total numberof vacancies in the cadre strength and, therefore, no distinction can bemade between the posts to be filled in by direct recruitment and bypromotion. It was, accordingly, held that the “total number of vacancies

Fin the cadre strength would include the vacancies to be filled in bynomination and vacancies to be filled in by promotion”. Certaindirections were issued by this Court in paragraph 55, which led to issuanceof further OM dated 3[rd] December, 2013 by the DoPT modifyingparagraph 6 of OM dated 29[th] December, 2005.

G7. On consideration of the said decision and the modification somade by the OM dated 3[rd] December, 2013, the High Court in NationalConfederation for Development of Disabled (supra) was of the view

1 PIL 106 of 20102 (2010) 7 SCC 626H3 (2013) 10 SCC 772

that the respondents would have to give benefits of reservation to personswith disabilities in the matter of promotion to posts in the IndianAdministrative Service by applying OM dated 29[th] December, 2005 andthe subsequent office memorandum consistent with the aforesaid decisionof this Court, with effect from the date of issuance of OM dated 29[th]December, 2005.

8. Significantly, the decision in National Confederation forDevelopment of Disabled (supra) was the subject matter of challengeat the instance of the GoI in special leave petition, which was dismissedon 12[th] September, 2014. review petition was thereafter filed by theGoI, which was also dismissed by an order dated 5[th] December, 2014,on merits. Another special leave petition that was carried by the GoI tothis Court from the order dismissing the review petition stood dismissedon 27[th] February, 2015. Thus, insofar as the GoI is concerned, thejudgment and order dated 4[th] December, 2013 in National Confederationfor Development of Disabled (supra) attained finality.

9. Upon consideration of the pleadings of the parties, the PwDAct, 1995, OM dated 29[th] December, 2005 and OM dated 3[rd] December,2013 issued by the DoPT as well as the decisions that were referred toit, the High Court in the impugned judgment and order held as follows: -

“9. In view of the above discussion, we have no hesitation inholding that modification made by para 5 of the OM dated 3December 2013 to para 14 of the OM dated 29 December2005 will apply with effect from 29 December 2005 andtherefore the respondent-Reserve Bank of India shall applyreservation for persons with disabilities on the basis of totalnumber of vacancies appearing in direct recruitment quotaas 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 requiredto be filled in the cadre of Asst. Manager and/or otherequivalent posts in Group ‘A’ or Group ‘B’ on or after 29December 2005, the Reserve Bank of India shall applyreservation policy with effect from 29 December 2005 and ifas consequence therefore the petitioner’s case is requiredto be considered for such promotion, respondents-ReserveBank of India shall consider the petitioner’s case forpromotion.

A11. It is clarified that this direction is only in the context ofcontroversy about applicability of reservation policy topromotion and if there are other requirements under therelevant rules, this Court may not be treated to have expressedany opinion on the question of the petitioner satisfying suchrequirements.B

12. The direction given herein above shall be carried outwithin period of three months from today.”

10. It appears that while allowing the writ petition of Mr. Nair, theDivision Bench of the High Court followed the earlier view expressedCby its coordinate Bench.

11. Mr. Nair had applied for review[4] of the judgment and orderdated 16[th] June, 2014 on the ground that the High Court had erred in notclarifying the position on grace marks and in not addressing his claim ofqualification/seniority from the date of eligibility. When the same wasDtaken up for consideration on 31[st] October, 2014, the High Court wasinformed of issuance of notice by this Court on the petition for specialleave to appeal filed by the RBI. In view thereof, without examining themerits of the review petition, the same was disposed of by the HighCourt with liberty to Mr. Nair to seek revival after disposal of theproceedings before this Court.E

BROAD OVERVIEW OF THE LAW:

12. Much water has flown under the bridge since the impugnedjudgment dated 16[th] June, 2014 was rendered by the High Court. On thelegislative front, the Parliament enacted the Rights of Persons withFDisabilities Act, 2016 (hereinafter referred to as ‘the PwD Act, 2016’)repealing the PwD Act, 1995. On the judicial side, pronouncements inRajiv Kumar Gupta and Ors. vs. Union of India and Ors.[5], Siddarajuvs. State of Karnataka and ors.[6], and State of Kerala and Ors. vs.Leesamma Joseph[7] have seen the light of the day. The executive, in itsturn, has complied with the directions contained in an order datedG28[th] September, 2021 of this Court[8] arising out of Siddaraju (supra)

4 RP No. 55 of 20145 (2016) 13 SCC 1536 (2020) 19 SCC 5727 (2021) 9 SCC 208H8 M.A. 2171/2020 in Civil Appeal No.1567/2017

resulting in issuance of OM dated 17[th] May, 2022 by the DoPT. Theseare undoubtedly developments subsequent to the impugned judgment;but since they could have bearing on the merits of Mr. Nair’s claimthat he has unjustly been deprived of promotion to the post of AssistantManager, the same cannot be kept out of our consideration. Indeed,after OM dated 17[th] May, 2022 was issued, the RBI has also issued acircular 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 upby departmental examination scheduled on 10[th] December, 2022.13. The law relating to grant of equal opportunities, protection ofrights, and full participation of persons with disabilities was codified bythe PwD Act, 1995. Chapter VI of the PwD Act, 1995, titled‘EMPLOYMENT’, containing sections 32 to 41, inter alia, mandatedidentification of posts which could be reserved for persons with disabilitiesfor appointment, the extent of reservation and the procedure to befollowed in the matter of recruitment. Significantly, Chapter VI did notcontain 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 withdisabilities serving in the feeder cadre. However, Chapter VIII titled‘NON-DISCRIMINATION’ in sub-section (2) of section 47 ordainedthat no promotion shall be denied to person merely on the ground of hisdisability. Sections 44 to 47, under Chapter VIII, envisaged that personswith disabilities should not face any discrimination in any of the fieldsspecified therein, with section 47 particularly dealing with non-discrimination in Government employment. It is true that sub-section (2)of section 47 does not contain any mandate requiring the employer orestablishment to make reservation in promotional posts; on the contrary,it is command to the employer or establishment that merely becausean employee is suffering from disability, as defined in section 2(i) ofthe PwD Act, 1995, he is not to be denied promotion.

14. However, it is noticed that even before the PwD Act, 1995was enacted, OM dated 20[th] November, 1989 had been issued by theDoPT whereby, reservations promotions (i) within Group ‘D’, (ii) fromGroup ‘D’ to Group ‘C’ and (iii) within Group ‘C’ to the three categoriesof ‘physically handicapped persons’, viz. the visually handicapped, thehearing handicapped and the orthopedically handicapped, were

Apermissible. It was, however, clarified that each of the three categoriesof physically handicapped persons would be allowed reservation at 1(one) per cent each and that applicability of the reservation would belimited to promotions being made to those posts that are identified asbeing capable of being filled/held by the appropriate category of physicallyhandicapped.B

15. During the period intervening the advent of the PwD Act,1995 and issuance of OM dated 29[th] December, 2005, the DoPT wenton to issue Office Memoranda dated 18[th] February, 1997, 16[th] January,1998 and 25[th] October, 2022. We need not consider the said officememoranda in any great detail except referring to the common threadCrunning through them, i.e., the DoPT sought to carve out the benefit ofreservation in promotion for persons with disabilities even though whetherthere was an explicit legislative mandate to that effect was indeed agrey area for some. Notwithstanding the same, having regard to theobjects that the PwD Act, 1995 intended to achieve by providing equalDopportunity, protection of rights and full participation to the persons withdisabilities and viewed in the light of difficulties and inconveniences facedby them, the initiative of the DoPT to provide for reservation in promotionfor them on at least Group ‘C’ and Group ‘D’ posts was indeed step inthe right direction.E16. Be that as it may, mere absence of an express mandate inChapter VI of the PwD Act, 1995 requiring reservation in promotion forpersons with disabilities could not have been construed as not obligingthe appropriate Government not to keep reserved vacancies onpromotional posts for those answering clauses (i) to (iii) of section 33.Though the language used in section 33 could admit of little bit ofFconfusion, the crucial words there are “shall appoint in everyestablishment”. Paraphrased, it implies that while the appropriateGovernment is making appointment in every establishment, it ought toreserve minimum of 3 (three) per cent vacancies for persons or classof persons with disability, of which 1 (one) per cent each shall be reservedGfor those persons with disabilities of the nature mentioned in the clausestherein, i.e., (i) blindness or low vision, (ii) hearing impairment, and (iii)locomotor disability or cerebral palsy, and that appointments shall bemade on the posts identified for each such disability as in the said clauses.The proviso which permits exemption is not relevant in the present case;hence, its effect is not considered. It is, therefore, the statutory dutyH

enjoined by section 33 that there must be appointment of persons withdisabilities in every establishment which ought not to be less than 3 (three)per cent but minimum of 1 (one) percent of vacancies, available onidentified posts for each disability, has to be reserved. The confusion, toour mind, might have stemmed from the narrow interpretation of theword “appoint”, without realizing that “promotion” is also included within“appointment”. The term “appointment” is quite broad and includesappointment by ‘direct recruitment’ as well as appointment by way of‘promotion’. Prior to Rajiv Kumar Gupta (supra), there was noauthoritative pronouncement on the aspect of reservation in promotion.The interpretation of section 33 of the PwD Act, 1995 made by RajivKumar Gupta (supra) finds its resonance in Siddaraju (supra).17. We have noticed that the PwD Act, 2016 expressly makesavailable benefits of reservation to promotional posts for persons withdisabilities in that the first proviso to section 34 ordains that reservationin promotion shall be in accordance with such instructions as are issuedby the appropriate Government from time to time. Law within the meaningof Article 141 of the Constitution of India having been declared bySiddaraju (supra) and the GoI having implemented the order of thisCourt dated 28[th] September, 2021 noted above and issued OM dated17[th] May, 2022, the same constitutes “instructions” as contemplated bythe first proviso to section 34 of the PwD Act, 2016. Such instructionscontemplate reservation in promotion to posts in Group – ‘A’ in the lowestgrade.

18. When the provisions of the PwD Act, 1995 and the PwD Act,2016 in relation to reservation in promotion for persons with disabilitiesare contrasted, it is clear as crystal that what was implicit in the formerhas been made explicit by the latter.

19. This is the broad overview of the position of law, as it standstoday, in regard to reservation in promotion for persons with disabilities.

ARGUMENTS ON BEHALF OF THE RBI:

20. Appearing in support of the appeal presented by the RBI, Mr.Jaideep Gupta, learned senior counsel, contended that the High Courterred in making the directions it did. According to him, the circularsissued by the RBI restricted promotion of physically handicapped personsonly to Group ‘C’ posts and within Group ‘D’ posts, and did not permitreservation in promotion in Group ‘A’ posts. That apart, OM dated 29[th]

ADecember, 2005 relied on by Mr. Nair did not extend any benefit of thenature claimed by Mr. Nair despite its modification by OM dated 3[rd]December, 2013. Thus, from whichever angle one looks at the circulars,resolving Mr. Nair’s grievance by considering him fit for promotion fromthe date of issuance of OM dated 29[th] December, 2005, as directed bythe High Court, was not called for. He also contended that after the GoIBissued OM dated 17[th] May, 2022, the RBI has also issued the circulardated 8[th] December, 2022, whereby requisite vacancies in Group ‘A’posts have also been reserved for promotion of persons with disabilities.This circular dated 8[th] December, 2022 contemplates promotion of personswith disabilities upon qualifying in departmental examination.C

21. Though Mr. Gupta did not dispute that benefit of condonationof shortfall in marks was available for SC/ST candidates, he submittedthat the concession could not have been extended to persons withdisabilities like Mr. Nair in the absence of any policy decision for reservingvacancies in Group – ‘A’ posts for persons like him; hence, Mr. NairDcould not have claimed any benefit flowing therefrom.

22. Referring to an “Additional Affidavit” dated 19[th] January, 2023filed on behalf of the RBI, Mr. Gupta contended that vide circular dated21[st] September, 2022, departmental examination for promotion of ClassIII employees to the post of Assistant Manager Grade ‘A’ was scheduledEon 10[th] December, 2022 and willingness therefor was invited by 30[th]September, 2022; however, Mr. Nair chose not to participate in suchexamination. Mr. Nair, it was contended, having not offered hiscandidature, the RBI was disabled to assess his performance forpromotion. Mr. Gupta, thus, urged that Mr. Nair having let go theopportunity, cannot be heard to complain; however, if Mr. Nair wishes toFparticipate in the promotional exercise, when conducted next, the RBIshall consider his candidature in terms of the extant provisions.

23. Mr. Gupta, thus, prayed that the appeal of the RBI could bedisposed of recording his aforesaid statement.

ARGUMENTS ON BEHALF OF THE GoI:G

24. Ms. Madhavi Divan, learned Additional Solicitor Generalappearing for the GoI, placed OM dated 17[th] May, 2022 and contendedthat pursuant to orders of this Court made from time to time and inparticular after the order dated 28[th] September, 2021 (supra), instructionshave been issued to make available reservation in promotion for personsH

with disabilities from posts in Group ‘B’ to the lowest rung in Group ‘A’,however, with the rider that reservation in promotion shall be applicablein the cadres in which the element of direct recruitment, if any, does notexceed 75%. She further submitted that since there was no specificpost identified for promotional appointment in Group ‘A’ when Mr. Nairparticipated in the process and also that the shortfall in marks could becondoned only in respect of SC/ST candidates, coupled with the factthat Mr. Nair elected to stay away from the recent promotional process,the directions made in the impugned judgment and order that paragraph14 of OM dated 29[th] December, 2005, since modified by OM dated 8[th]December, 2013, should be applied with retrospective effect, do not callfor being sustained. Accordingly, she too joined Mr. Gupta in urging thatthe appeal of the GoI be disposed of granting liberty to Mr. Nair toparticipate in the fresh process, whenever conducted.

25. In the midst of her argument, Ms. Divan was on the verge ofexpressing certain reservations about the law expounded by this Courtin Siddaraju (supra). However, the decision having become final andthe DoPT also having acted in terms thereof, we did not consider itappropriate to permit her advance any further argument in that regard.

ARGUMENTS ON BEHALF OF MR. NAIR:

26. Representing Mr. Nair, learned counsel Mr. K. Mohan invitedour attention to the various circulars/office memoranda issued from timeto time and the relevant decisions of this Court as well as the High Courtin matters relating to reservation of certain vacancies on promotionalposts for persons with disabilities. Relying thereon, he contended thatMr. Nair has been given raw deal.

27. OM dated 18[th] February, 1997 and corrigendum dated 16[th]January, 1998 were placed by Mr. Mohan. According to him, conjointreading thereof would leave none in doubt that the existing policy ofreservation for SCs/STs, including for the “physically handicapped”in promotion in all groups is applicable to all grades and services wherethe extent of direct recruitment does not exceed 75 (seventy-five) percent; and that the “existing policy of reservation” would obviouslyinclude the provision for grace marks for SCs/STs.

28. Referring to the counter affidavit of Mr. Nair filed in connectionwith these appeals, Mr. Mohan invited our attention to communicationdated 18[th] October, 2006 issued by the Banking Division, Department of

AEconomic Affairs, Ministry of Finance, GoI addressed to, inter alia, theChief General Manager, RBI on the subject of “Concession andrelaxation to persons with disabilities at par with SCs/STs irrespectiveof their vertical categories”. It was shown that on reference receivedfrom the Commissioner of Disabilities on the subject, it had been decidedto extend concession in examination fee and relaxation in minimumBpercentage of marks to persons with disabilities at par with SCs/STswith the nationalized banks. An order of this Court dated 19[th] March,2002 in A.I. Confederation of the Blind vs. Union of India & Anr.[9]was also referred endorsing the stand of the GoI to bring parity amongstall the persons with disabilities irrespective of their vertical categories. ACrequest was, accordingly, made to the addressees including the RBI tonote the instructions for appropriate action.29. Heavily relying thereon, Mr. Mohan argued that the refusal ofthe RBI to treat persons with disabilities at par with SC/ST category ofcandidates and to award grace marks as are made available to the latter,Ddespite the existence of the circular dated 5[th] July, 2000, the MasterCircular and the communication dated 18[th] October, 2006, amounts notonly to deprivation of the rights of “Equal Opportunity, Protection andFull Participation” guaranteed by the provisions of the PwD Act, 1995but also to invidious discrimination hit by Article 14 of the Constitution.

E30. Inviting our pointed attention to the decision in LeesammaJoseph (supra), Mr. Mohan contended that this Court declined to interferewith the order of the Kerala High Court under challenge which reversedthe decision of the Kerala Administrative Tribunal and upheld not onlythe respondent’s claim for promotion, though the initial entry of therespondent was on compassionate ground and not on post reservedFfor persons with disabilities, but did not disturb the financial benefitsreceived by the respondent. He also contended that this Court evenafter not interfering with the impugned order examined the issue as towhether persons with disabilities could claim right of promotion underthe PwD Act, 1995, as such issue were likely to arise in other matters ofGsimilar nature, and answered it in the affirmative.

31. Mr. Mohan also invited our attention to an order dated 20[th]February, 2020 recorded on these appeals. Such order noticed thesubmission advanced by him on behalf of Mr. Nair that “the rights in

H9 W.P.(C) No.115/1998

favour of disabled persons flow directly from the provisions of theAct and the source of right is not the O.M. but the provisions of theAct themselves; and as such the O.M. in any case can not limit theapplicability of the protection under the provisions of the Act”. Mr.Mohan reiterated such submission before us and submitted that thedirections given by the High Court in the impugned judgment and orderdo not call for any interference.

PROCEEDINGS BEFORE THIS COURT:

32. Having heard the parties on 19[th] January, 2023, we had grantedspecial leave to appeal and reserved judgment. In course of hearing, Mr.Gupta had sought for leave to file “Further Affidavit”, which we orallypermitted. Such an affidavit having been tendered on 30[th] January, 2023,we permitted Mr. Mohan to look into its contents and on prayer madeon behalf of Mr. Nair, we even permitted filing of reply by an orderdated 31[st] January, 2023. Pursuant thereto, “Common Affidavit-in-Reply” dated 7[th] February, 2023 has been filed by Mr. Nair and taken onrecord.

ADDITIONAL AFFIDAVITS OF THE RBI:

33. We have read the additional affidavits filed by the RBI andMr. Nair after judgment on these appeals was reserved. The points thatthe RBI urged in the counter affidavit filed before the High Court havebeen reiterated, which we have noticed above. That apart, perusal ofparagraphs 3-7 of the ‘Additional Affidavit’ dated 19[th] January, 2023and 10-13 of the ‘Further Affidavit’ dated 30[th] January, 2023 of the RBIreveal reference to issuance of instructions on ‘Reservation in promotion’under section 34 of the PwD Act, 2016 by the GoI in pursuance of thedirections contained in the order dated 28[th] September, 2021 (supra) andfurther that the RBI has adopted the same for itself vide its circulardated 08[th] December, 2022; that considering the above instructions, inrelation to the examinations conducted for Panel Year 2022 vide circulardated 8[th] December, 2022, 16 (sixteen) vacancies were reserved forpersons with disabilities and though the last date for expression ofwillingness to participate in the same was 30[th] September, 2022, Mr.Nair did not participate; and also that the qualification for Asst. ManagerGrade ‘A’ post has undergone changes and the Memorandum ofSettlement (MoS) between the RBI and the Employee’s Associationhas been implemented vide revised qualification criteria w.e.f. 2013.

AQUESTIONS OF LAW RAISED BY THE APPELLANTS:

34. We have noticed that in the appeals, the RBI and the GoIhave each raised 3 (three) questions of law which they claim aresubstantial questions. In essence, the questions are common but obviouslydifferently worded and not in the same sequence. To put the matter inBthe proper perspective, the appellants essentially have sought for answersin the negative to the following questions:

(i) Whether the modification made by paragraph 5 of the OfficeMemorandum dated 3[rd] December, 2013 to paragraph 14 of theOffice Memorandum dated 29[th] December, 2005 is to be appliedretrospectively with effect from 29[th] December, 2005?

(ii) Whether the High Court was justified in holding that the RBIhas to apply reservation in promotion for persons with disabilitiesin respect of Group ‘A’ and Group ‘B’ posts?

AndD

(iii) Whether the High Court is justified in holding that the decisionin National Confederation of Development of Disabled (supra)is applicable to the present case?

ANALYSIS AND DECISION:

E35. Regard being had to the narrative of facts leading topresentation of these appeals, the rival contentions advanced at the Baron behalf of the parties and in the light of exposition of law by this Courtin the decisions referred to above in regard to rights of persons withdisabilities in employment under the appropriate Government or in anestablishment qua matters of promotion, we are of the considered opinionFthat the aforesaid 3 (three) questions have been rendered purely academic.We may briefly give our reasons therefor.

36. The decision in Rajeev Kumar Gupta (supra) considered thelegality of the impugned Office Memoranda dated 18[th] February, 1997and 29[th] December, 2005, issued by the DoPT, denying to employees ofGPrasar Bharati, having disabilities, of the statutory benefit of 3 (three)per cent reservation in identified posts falling in Groups ‘A’ and ‘B’.Contention raised by the respondents based on the Constitution Benchdecision in Indra Sawhney vs. Union of India[10], that there cannot be

reservation in promotions to identified posts of Groups ‘A’ and ‘B’, wasoverruled by observing that such ruling arose in the context ofreservations in favour of backward classes of citizens falling within thesweep of Article 16(4) of the Constitution. Ultimately, it was held inparagraphs 24 and 25 as follows:

“24. combined reading of Sections 32 and 33 of the 1995Act explicates fine and designed balance betweenrequirements of administration and the imperative to providegreater opportunities to PWD. Therefore, as detailed in thefirst part of our analysis, the identification exercise underSection 32 is crucial. Once post is identified, it means thata PWD is fully capable of discharging the functions associatedwith the identified post. Once found to be so capable,reservation under Section 33 to an extent of not less thanthree per cent must follow. Once the post is identified, it mustbe reserved for PWD irrespective of the mode of recruitmentadopted by the State for filling up of the said post.

25. In the light of the preceding analysis, we declare theimpugned memoranda as illegal and inconsistent with the 1995Act. We further direct the Government to extend three percent reservation to PWD in all identified posts in Group Aand Group B, irrespective of the mode of filling up of suchposts. This writ petition is accordingly allowed.”

37. The view expressed in Rajeev Kumar Gupta (supra) wasdoubted by coordinate Bench of this Court. Opining that preferentialtreatment to persons with disabilities could cover reservation inappointment but not reservation in promotion, the said Bench in its orderdated 3[rd] February, 2017 was of the view that the contention needs to beconsidered by larger Bench.

38. Siddaraju (supra) is the larger Bench decision which hasheld that the decision in Rajeev Kumar Gupta (supra) cannot be faultedwhen it stated that Indra Sawhney (supra) dealt with different problemand cannot be followed.

39. Leesamma Joseph (supra), which is the latest in the line ofdecisions on the same point, has reached similar conclusion albeit premisedon different reasoning.

40. There is, therefore, no dearth of authority for the propositionthat the PwD Act, 1995 not only mandated reservation in appointmentbut also contemplated reservation in promotion.

41. Incidentally, we have also assigned our own reason as to whyany perception and understanding of section 33 of the PwD Act, 1995Bnot contemplating reservation in promotion is erroneous and fallacious.

42. Bearing in mind what has been laid down by this Court in thecited decisions and the view taken by us (supra), our specific answers tothe 3 (three) questions urged by the appellants are these. OM dated 29[th]December, 2005 having been set aside in Rajeev Kumar Gupta (supra),Cthe first question does not survive consideration as to whether modificationof paragraph 14 of the same, brought about by OM dated 8[th] December,2013, would apply retrospectively. Furthermore, Rajeev Kumar Gupta(supra) having directed the GoI to extend 3 (three) per cent reservationto the persons with disabilities in all identified posts in Group ‘A’ andGroup ‘B’, irrespective of the mode of filling up of such posts(emphasisDours), and the larger Bench in Siddaraju (supra) having given its stampof approval to such decision, the second question also stands squarelyanswered against the appellants. Finally, the question as to whether theHigh Court was right in relying upon National Confederation ofDevelopment of Disabled (supra) is no longer res integra having regardEto the multiple decisions of this Court on the point affirming the positionthat reservation in employment contemplated in section 33 of the PwDAct, 1995 covers all posts identified for eachof the 3 (three) kinds ofdisability mentioned therein and is not restricted to Group ‘C’ and Group‘D’ posts. We share the view taken therein.

F43. Having held thus and in the changed circumstances, we aretasked to decide two other questions, viz.:

(a) whether the RBI by failing to consider Mr. Nair for promotion,a right guaranteed by Article 16 of the Constitution, on applicationof relaxed standards committed an illegality?

Gand

(b) provided the answer to the aforesaid question is in theaffirmative, to what extent relief can legitimately be extended toMr. Nair?

44. Our answers to the aforesaid questions should be prefaced bya brief reference to the supreme law of the land. The resolve in thePreamble to the Constitution and the provisions in Part IV thereof, areconsidered relevant. Our preambular promise is to secure ‘social justice’to all. The Directive Principles of State Policy, though not enforceable,are declared in Article 37 to be “fundamental in the governance ofthe country” and the State has duty to apply these principles in makinglaws. The immediately next article commands the State to strive topromote the welfare of the people by securing and protecting, aseffectively as it may, social order in which justice ~ social, economicand political ~ shall inform all the institutions of the national life andendeavor to eliminate inequalities in status, facilities and opportunities.Article 41 requires the State, within the limits of its economic capacityand development, to make effective provision for securing the right towork, inter alia, in cases of disablement. In the society we live in, whichis indeed class-ridden, ‘social justice’ should mean justice to the weakerand poorer section of the society, particularly when the people of thenation have resolved in the Preamble to secure ‘equality of status andopportunity’. The underlying idea is that securing justice to the weakerand the poorer section could make them equal with the rest of the society.In case where the weaker section is involved in combat with thestronger section and the scales are even, to rise to the challenge forsecuring ‘social justice’, the Courts of law ought to lean in favour of theformer so that justice is ensured. If persons with disabilities are deniedthe rights and privileges conferred by law of equal opportunities, protectionof rights and full participation, inter alia, in the field of public employment,the disservice to such persons would inevitably be grave causing erosionof constitutional idealism and respect for human rights apart from extrememental agony and pain of the deprived. Where such situations emerge,the courts should not remain mute and dumb. No court, far less thisCourt, should condone the breaches and violations by employers/establishments arising out of treading of the illegal path by them.

45. It is noted that the version of the RBI before the High Courtwas that there is no provision for reservation in promotional posts inGrade - ‘A’ for persons with disabilities; hence, benefit of promotion ona reserved vacancy could not be granted to Mr. Nair. This was indeedthe ostensible reason for which the relaxed standards of assessmentavailable for SC/ST candidates was not extended to persons withdisabilities, fortiori, to Mr. Nair. In other words, Mr. Nair’s claim for

Apromotion on reserved vacancy for persons with disabilities, uponapplication of relaxed standards, could not have been considered in theabsence of any identified Group ‘A’ post. That the appropriateGovernment must make available reservation in the matter of appointmentof persons with disabilities in identified posts of Group ‘A’ and Group ‘B’had been conclusively and authoritatively decided by this Court in RaviBPrakash Gupta (supra) and National Federation of the Blind (supra)by the time the impugned judgment and order was rendered. That beingthe position, no valid contention could have been advanced that reservationfor persons with disabilities is not available for appointment on Group –‘A’ posts. What remained was whether reservation for persons withCdisabilities is available for promotional appointment on Group – ‘A’ posts.That issue has also been given quietus by Rajiv Kumar Gupta (supra),Siddaraju (supra) and Leesamma Joseph (supra). The two bigimpediments in the path of Mr. Nair, thus, stand removed by reason of apragmatic and reasonable interpretation of the PwD Act, 1995 by thisCourt.D46. It cannot, however, be gainsaid that when Mr. Nair hadparticipated in the Panel Year 2003 examination, no decision had beenrendered by this Court that reservation in promotion is permissible inrespect of Group ‘A’ posts. It is equally true that this Court whileinterpreting sections 32 and 33 of the PwD Act, 1995 did not declare theElaw laid down by it to have prospective application. It is principle, well-settled in law, that the interpretation of provision of law relates back tothe date of the law itself. This is essentially for the reason that the dutyof the Court is not to legislate but to interpret the law. However, suchprinciple is subject to the exception that this Court may, in given case,Fdeclare that its interpretation would have effect prospectively. That isnot the express intention of this Court in any of the decisions referred toabove. This being the position in law, we have no doubt that Mr. Nair didhave statutorily conferred right all through to claim that reservation inpromotional appointment in Group ‘A’ posts is ingrained in the PwD Act,1995.G

47. Thus held, the remaining impediment is with regard tocondonation of shortfall of marks at par with the relaxed standardsapplicable to SC/ST candidates. We now proceed to examine whetherthe RBI was justified in not condoning the shortfall of 3 (three) markspertaining to the 2003 examination taken by Mr. Nair to enable himHsecure promotion.

48. We have noted from the communication dated 18[th] October,2006 issued by the Banking Division, Department of Economic Affairs,Ministry of Finance, GoI that the same surfaced as follow-up step tocomply with this Court’s order dated 19[th] March, 2002 in A.I.Confederation of the Blind (supra). Even otherwise, to reach out topersons with disabilities and grant them the facilities and benefits thatthe PwD Act, 1995 envisaged, it was rather harsh to apply standardswhich are applicable to general candidates to Mr. Nair while he competedwith such general candidates for securing his promotion. RBI, as modelemployer, ought to have taken an informed decision in this regardcommensurate with the aspirations of persons with disabilities.

49. We did not hear any serious argument from Mr. Gupta or Ms.Divan, and rightly so, that persons with disabilities are not entitled to bejudged by the same relaxed standards that are applied to assesscandidature of SC/ST candidates.

50. In such circumstances, the omission or failure of the RBI incondoning the shortfall in marks coupled with the neglect to identify aGroup ‘A’ post suitable for reservation to accommodate Mr. Nair onpromotion appears to us to be indefensible.

51. Question (a) is answered accordingly.

52. In considering question (b), concededly there was noauthoritative pronouncement of this Court interpreting the PwD Act,1995, making available reservation in promotional appointments forpersons with disabilities in Group ‘A’ posts, when Mr. Nair took theexamination for promotion to the post of Assistant Manager, Grade – Iin 2004. The first time it came to be so declared was when the decisionin Rajeev Kumar Gupta (supra) was pronounced. Should the RBI, inthe circumstances, be directed to relax the standard of assessment andgrant promotion to Mr. Nair with retrospective effect?

53. The answer to this question would necessitate looking back atthe operative directions contained in the order under challenge. Whatthe High Court said has been quoted above. It is noteworthy that theHigh Court did not mandatorily direct grant of promotion to Mr. Nair.The High Court’s judgment, unintendedly, was confined to application ofreservation policy. The High Court did not declare that Mr. Nair shouldalso be entitled to condonation of shortfall in marks with reference to thePanel Examination 2003. Insofar as other qualifying requirements under

Athe relevant rules are concerned, the High Court clarified that it may notbe understood to have expressed any opinion on the question of Mr.Nair satisfying such requirements. Given such contours of the order, itwas open to the RBI to consider Mr. Nair for promotion and passappropriate order either granting or denying him promotion in accordancewith the prevailing exposition of law. Instead of complying with the order,Bthe RBI carried the judgment and order to this Court on 12[th] September,2014. GoI also followed suit. It was Mr. Nair who rushed to the HighCourt with review petition within the period of limitation, whereuponhis rights have been kept open noticing pendency of the petition forspecial leave of the RBI. Given such situation, it seems that the RBIChas on its own invited the uncomfortable position in which it finds itselfnow. The decisions of this Court rendered during the pendency of theseappeals have to be considered and applied, notwithstanding the fact thatthe same were not available when the High Court decided Mr. Nair’swrit petition finally. RBI might not have faced this conundrum had theorder of the High Court been complied with on time.D

54. In any event, should the RBI and GoI be worse off forapproaching this Court, given the fact that after his participation in the2003 examination Mr. Nair has elected to stay away from furtherexaminations on the pretext of pendency of proceedings before the HighCourt as well as this Court, and suffer the impact of the decisions of thisECourt post the impugned judgment and order? Or, should the appeals bedismissed leaving it open to the RBI to comply with the order of theHigh Court? In our view, dismissal without any observation has thepotential of generating further unnecessary litigation. At the same time,though Mr. Nair did not file any cross-appeal, he had applied for review

Fand has been conferred the liberty to revive the review petition afterdisposal of proceedings by this Court.

55. Having regard to the materials on record before us and foranswering question (b), it is considered appropriate to invoke Article 142of the Constitution “for doing complete justice” in the cause.G

56. We direct RBI to grant notional promotion to Mr. Nair on thepost of Assistant Manager Grade – ‘A’, to be effective from the date ofpresentation of the writ petition before the High Court, i.e.,27[th] September, 2006 and actual promotion from 15[th] September, 2014,i.e., the last date for compliance of the order of the High Court. ThisHexercise must be completed within period of 2 (two) months from

date. The monetary benefits accruing to Mr. Nair with effect from 15[th]September, 2014 shall be computed and released by 4 (four) monthsfrom date.

57. Since Mr. Nair has couple of years for his retirement onsuperannuation, it is needless to observe that in computing his retiralbenefits due regard shall be given to his promotion, as directed above,with effect from 27[th] September, 2006.

58. The appeals stand disposed of on the above terms. Partiesshall bear their own costs.

S. RAVINDRA BHAT, J.

1. I have had the benefit of reading the detailed and elaboratereasoning of my learned brother judge, Dipankar Datta, J. While I concurwith the conclusions and relief granted to the appellant, I wish to recorda few observations, by way of abundant caution, on the larger questionof reservations in promotions for any class of citizens other than thosecovered by Article 16(4-A) of the Constitution.

I. HISTORY OF RESERVATIONS IN PROMOTIONS

2. The question of reservations in promotions has chequeredhistory. In General Manager, S. Rly. v. Rangachari[1], constitutionbench in 3:2 decision held that reservations in promotions werepermissible. They were not merely restricted to initial appointments, butalso selected posts subsequently.[2] This was decision rendered duringthe era when this court’s understanding of Articles 15(4) and 16(4) wasthat such provisions were exceptions to the rule under Articles 15(1)and 16(1). However, this interpretation underwent change[3], aselucidated in State of Kerala v N.M. Thomas[4], wherein K.K. Mathew,J. opined:

“If equality of opportunity guaranteed under Article 16 (1)means effective material equality, then Article 16 (4) is not anexception to Article 16 (1). It is only an emphatic way of putting

1 General Manager, S. Rly. v. Rangachari, (1962) 2 SCR 586.

2 Id., para 27.

3 The dissenting opinion of Subba Rao, J. in T. Devadasan v. Union of India, (1964) 4SCR 680 was affirmed in State of Kerala v N.M. Thomas, (1976) 2 SCC 310.

4 State of Kerala v N.M. Thomas, (1976) 2 SCC 310.

Athe extent to which equality of opportunity could be carriedviz., even up to the point of making reservation”.[5]

In Indra Sawhney v Union of India[6], nine-judge constitutionbench, equipped with this interpretation, revisited the question ofreservations in promotions. Question No. 7 was unambiguously cast:B“Whether Article 16 permits reservations being provided in the matterof promotions?” Eight out of nine justices considered the issue, andheld that the view expressed in Rangachari (supra) was erroneous, andthat reservations in promotions were impermissible under Article 16.

3. The observations made by different judges in their opinions areCextracted below:

a. Per Kania, Venkatachalaiah and BP Jeevan Reddy, JJ:

“828. We see no justification to multiply ‘the risk’, whichwould be the consequence of holding that reservation canbe provided even in the matter of promotion. While it isDcertainly just to say that handicap should be given tobackward class of citizens at the stage of initialappointment, it would be serious and unacceptable inroadinto the rule of equality of opportunity to say that such ahandicap should be provided at every stage of promotionEthroughout their career. That would mean creation of apermanent separate category apart from the mainstream— vertical division of the administrative apparatus. Themembers of reserved categories need not have to competewith others but only among themselves. There would be nowill to work, compete and excel among them. Whether theyFwork or not, they tend to think, their promotion is assured.This in turn is bound to generate feeling of despondenceand ‘heart-burning’ among open competition members. Allthis is bound to affect the efficiency of administration.Putting the members of backward classes on fast-trackGwould necessarily result in leap-frogging and thedeleterious effects of “leap-frogging” need no illustrationat our hands. At the initial stage of recruitment reservationcan be made in favour of backward class of citizens but

5 Ibid., para 78.

6 Indra Sawhney v Union of India, 1992 Supp (3) SCC 217.

once they enter the service, efficiency of administrationdemands that these members too compete with others andearn promotion like all others; no further distinction canbe made thereafter with reference to their “birth-mark”,as one of the learned Judges of this Court has said inanother connection. They are expected to operate on equalfooting with others. Crutches cannot be providedthroughout one’s career. That would not be in the interestof efficiency of administration nor in the larger interest ofthe nation. It is wrong to think that by holding so, we areconfining the backward class of citizens to the lowestcadres. It is well-known that direct recruitment takes placeat several higher levels of administration and not merelyat the level of Class IV and Class III. Direct recruitment isprovided even at the level of All India Services. Directrecruitment is provided at the level of District Judges, togive an example nearer home. It may also be noted thatduring the debates in the Constituent Assembly, nonereferred to reservation in promotions; it does not appearto have been within their contemplation.

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831. We must also make it clear that it would not beimpermissible for the State to extend concessions andrelaxations to members of reserved categories in the matterof promotion without compromising the efficiency of theadministration. The relaxation concernedin Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227: (1976) 1 SCR 906] and the concessions namely carryingforward of vacancies and provisions for in-servicecoaching/training in Karamchari Sangh [(1981) 1 SCC246, 289 : 1981 SCC (L&S) 50 : (1981) 2 SCR 185, 234]are instances of such concessions and relaxations.However, it would not be permissible to prescribe lowerqualifying marks or lesser level of evaluation for themembers of reserved categories since that wouldcompromise the efficiency of administration. We reiteratethat while it may be permissible to prescribe reasonablylesser qualifying marks or evaluation for the OBCs, SCs

ABC

and STs — consistent with the efficiency of administrationand the nature of duties attaching to the office concerned— in the matter of direct recruitment, such course wouldnot be permissible in the matter of promotions for thereasons recorded hereinabove.”

b. Pandian, J:

“240. In Mohan Kumar Singhania v. Union of India [1992Supp (1) SCC 594 : 1992 SCC (L&S) 455 : (1992) 19 ATC881] three-Judge Bench of this Court to which I was aparty has taken view that once candidates even fromreserved communities are allocated and appointed to aService based on their ranks and performance and broughtunder the one and same stream of category, then they toohave to be treated on par with all other selected candidatesand there cannot be any question of preferential treatmentat that stage on the ground that they belong to reservedcommunity though they may be entitled for all otherstatutory benefits such as the relaxation of age, thereservation etc. Reservation referred to in that context isreferable to the reservation at the initial stage or the entrypoint as could be gathered from that judgment.”

c. Thommen, J:

“307. The initial appointments may be made at variouslevels or grades of the hierarchy in the service. There isno warrant in Article 16(4) to conclude from the expression‘reservation of appointments or posts’ that reservationextends not merely to the initial appointment, but to everystage of promotion. Once appointed in service, anyfurther discrimination in matters relating to conditions ofservice, such as salary, increments, promotions, retirementbenefits, etc. is constitutionally impermissible, it being thevery negation of equality, fairness and justice.

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309. In whichever post that member of backward classis appointed, reservation provisions are attracted at thestage of his initial appointment and not subsequently.

Further promotions must be governed by common rulesapplicable to all employees of the respective grades.Reasoning to the contrary in decisions, such as GeneralManager, S. Rly. v. Rangachari [(1962) 2 SCR 586 : AIR1962 SC 36] ; State of Punjab v. Hiralal [(1970) 3 SCC567 : (1971) 3 SCR 267] ; Akhil Bharatiya SoshitKaramchari Sangh (Railway) v. Union of India [(1981) 1SCC 246, 289 : 1981 SCC (L&S) 50 : (1981) 2 SCR 185,234] is not warranted by the language of the Constitution.”

*****************

d. Kuldip Singh, J

“376. The reservation permissible under Article 16(4) canonly be “in favour of any backward class of citizens” andnot for individuals. Article 16(1) guarantees right to anindividual citizen whereas Article 16(4) permits protectivediscrimination in favour of class. It is, therefore,mandatory that the opportunity to compete for the reserveposts has to be given to class and not to the individuals.When direct recruitment to service is made the ‘backwardclass’ as whole is given an opportunity to be consideredfor the reserve posts. Every member of the said class has aright to compete. But that is not true of the process ofpromotion. The backward class as collectivity is nowherein the picture; only the individuals, who have alreadyentered the service against reserve posts, are considered.In the higher echelons of State services — cadre strengthbeing small — there may be very few or even single‘backward class’ candidate to be considered for promotionto the reserve post. An individual citizen’s right guaranteedunder Article 16(1) can only be curtailed by providingreservations for ‘backward class’ and not for backwardindividuals. The promotional posts are not offered to thebackward class. Only the individuals are benefited. Theobject, context and the plain language of Article 16(4)make it clear that the job reservation can be done only inthe direct recruitment and not when the higher posts arefilled by way of promotion.”

e. PB Sawant, J

“540. However, if it becomes necessary to answer thequestion, it will have to be held that the reservations bothunder Articles 16(1) and 16(4) should be confined only toinitial appointments. Except in the decisionin Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36] therewas no other occasion for this Court to deliberate uponthis question. In that decision, the Constitution Bench by amajority of three took the view that the reservations underArticle 16(4) would also extend to the promotions on theground that Articles 16(1) and 16(2) are intended to giveeffect to Articles 14 and 15(1). Hence Article 16(1) shouldbe construed in broad and general, and not pedanticand technical way. So construed, “matters relating toemployment” cannot mean merely matters prior to the actof appointment nor can ‘appointment to any office’ meanmerely the initial appointment but must also include allmatters relating to the employment, that are either incidentalto such employment or form part of its terms and conditions,and also include promotion to selection post. The Courtfurther observed that: (SCR headnote p. 587)

“Although Article 16(4), which in substance is an exceptionto Articles 16(1) and 16(2) and should, therefore, be strictlyconstrued, the court cannot in construing it overlook theextreme solicitude shown by the Constitution for theadvancement of socially and educationally backwardclasses of citizens.The scope of Article 16(4), though notas extensive as that of Article 16(1) and (2), — and someof the matters relating to employment such as salary,increment, gratuity, pension and the age of superannuation,must fall outside its non-obstante clause, there can be nodoubt that it must include appointments and posts in theservices. To put narrower construction on the word ‘posts’would be to defeat the object and the underlying policy.Article 16(4), therefore, authorises the State to provide forthe reservation of appointments as well as selection posts.”

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543. It has been pointed out earlier that the reservationsof the backward classes under Article 16(4) have to bemade consistently with the maintenance of the efficiencyof administration. It is foolhardy to ignore theconsequences to the administration when juniorssupersede seniors although the seniors are as much or evenmore competent than the juniors. When reservations arekept in promotion, the inevitable consequence is thephenomenon of juniors, however low in the seniority list,stealing march over their seniors to the promotional post.When further reservations are kept at every promotionallevel, the juniors not only steal march over their seniors inthe same grade but also over their superiors at more thanone higher level. This has been witnessed and is beingwitnessed frequently wherever reservations are kept inpromotions. It is naive to expect that in such circumstancesthose who are superseded, (and they are many) can workwith equanimity and with the same devotion to and interestin work as they did before. Men are not saints. Theinevitable result, in all fields of administration, of thisphenomenon is the natural resentment, heart-burning,frustration, lack of interest in work and indifference tothe duties, disrespect to the superiors, dishonour of theauthority and an atmosphere of constant bickerings andhostility in the administration. When, further, the erstwhilesubordinate becomes the present superior, the vitiation ofthe atmosphere has only to be imagined. This has admittedlya deleterious effect on the entire administration.544. It is not only the efficiency of those who are thussuperseded which deteriorates on account of suchpromotions, but those superseding have also no incentiveto put in their best in work. Since they know that in anycase they would be promoted in their reserved quota, theyhave no motivation to work hard. Being assured of thepromotion from the beginning, their attitude towards theirduties and their colleagues and superiors is also colouredby this complex. On that account also the efficiency ofadministration is jeopardised.

ABC

545. With respect, neither the majority nor the minority inthe Constitution Bench has noticed this aspect of thereservations in promotions. The later decisions whichfollowed Rangachari [(1962) 2 SCR 586 : AIR 1962 SC36] were also not called upon to and hence have notconsidered this vital aspect. The efficiency to which themajority has referred is with respect to the qualificationsof those who would be promoted in the reserved quota.”

f. Sahai, J

“622. But, inadequacy of representation is creative ofjurisdiction only. It is not measure of backwardness. Thatis why less rigorous test or lesser marks and competitionamongst the class of unequals at the point of entry hasbeen approved both by this Court and American courts.But student admitted to medical or engineering collegeis further not granted relaxation in passing theexaminations. In fact this has been explained as validbasis in American decisions furnishing justification forracial admissions on lower percentage. Rationale appearsto be that everyone irrespective of the source of entry beingsubjected to same test neither efficiency is effected northe equality is disturbed. After entry in service the class isone, that of employees. If the social scar of backwardnessis carried even thereafter, the entire object of equalisationstands frustrated. No further classification amongstemployees would be justified as is not done amongststudents.

623. Constitutional, legal or moral basis for protectivediscrimination is redressing identifiable backward class forhistorical injustice. That is they are today, what they wouldnot have been but for the victimisation. Remedying thisand to balance the unfair advantage gained by others isthe constitutional responsibility. But once the advantagedand disadvantaged, the so-called forward and backward,enter into the same stream then the past injustice standsremoved. And the length of service, the seniority in cadreof one group, to be specific the forward group, is not as aresult of any historical injustice or undue advantage earned

by his forefather or discrimination against the backwardclass, but because of the years of service that are put byan employee, in his individual capacity. This entitlementcannot be curtailed by bringing in again the concept ofvictimisation.

624. Equality either as propagated by theorists or asapplied by courts seeks to remove inequality by “parity oftreatment under parity of condition” [(1976) 2 SCC 310,380 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] . But oncein “order to treat some persons equally, we must treat themdifferently” [57 L Ed 2d 750 : 438 US 265 (1978)] hasbeen done and advantaged and disadvantaged are madeequal and are brought in one class or group then anyfurther benefit extended for promotion on the inequalityexisting prior to be brought in the group would be treatingequals unequally. It would not be eradicating the effectsof past discrimination but perpetuating it.

625. Constitutional sanction is to reserve for backwardclass of persons. That is class or group interest has beenpreferred over individual. But promotion from class orgroup of employees is not promoting group or class butan individual. It is one against other. No forward classversus backward class or majority against minority. Itwould, thus, be contrary to the Constitution. Brother KuldipSingh, for good and sound reasons has rightly opined,that, Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36]cannot be held to be laying down good law.”*****************

627. Is it possible to reserve under Article 16(1)? Detailedreasons have been given earlier, against any reservationunder cover of doctrine of reasonable classification.Eradication of poverty which “is not to be exalted orpraised, but is an evil thing which must be fought andstamped out” [ Jawaharlal Nehru, quoted from Dorothy,Norman (Ed.) Nehru] is one of the ideals set out in thePreamble of the Constitution as it postulates to achieveeconomic justice and exhorts the State under Article 38(2)

Ato “minimise the inequality of income”. All the same, canthe State for this purpose reserve posts for the economicallybackwards in service. Right to equal protection of laws orequality before law in ‘benefits, and burdens’ by operationof law, equally amongst equals and unequally amongstunequals is firmly rooted in the concept of equalityBdeveloped by courts in this country and in America. Butany reservation or affirmative action on economic criteriaor wealth discrimination cannot be upheld under doctrineof reasonable classification. Reservation for backwardclass seeks to achieve the social purpose of sharing inCservices which had been monopolised by few of the forwardclasses. To bridge the gap, thus created, the affirmativeactions have been upheld as the social and educationaldifference between the two classes furnished reasonablebasis for classification. Same cannot be said for rich andpoor. Indigence cannot be rational basis forDclassification for public employment.”

4. It is thus discernible that in Indra Sawhney (supra), this courtruled that reservations under Article 16 for backward classes of citizenswere limited only to initial appointments, and did not extend to promotions.The rationale for such conclusion was that reservations in promotions

would have deleterious effect on the efficiency of services: firstly,they would stifle the spirit to work amongst the reserved candidates, andwould amount to creation of permanent separate category. Secondly,such reservations would generate feeling of despondence and heartburnamong general category candidates. Thirdly, reservations in promotionsFwould violate the rule of equality.

5. To negate the declaration of the court in Indra Sawhney (supra),Parliament introduced an amendment to Article 16 of the Constitution,by inserting clause (4-A) by the 77[th] Constitutional Amendment Act of1995. Clause (4-A) reads as follows:

“Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion to anyclass or classes of posts in the services under the State infavour of the Scheduled Castes and the Scheduled Tribeswhich, in the opinion of the State, are not adequatelyrepresented in the services under the State.”

Additionally, the Statement of Objects and Reasons for the 77[th]Constitutional Amendment Act, 1995, reads as follows:

“The Scheduled Castes and the Scheduled Tribes have beenenjoying the facility of reservation in promotion since 1955.The Supreme Court in its judgment dated 16th November,1992 in the case of Indra Sawhney v. Union of India,however, observed that reservation of appointments or postsunder Article 16(4) is confined to initial appointment andcannot extend to reservation in the matter of promotion. Thisruling of the Supreme Court will adversely affect the interestsof the Scheduled Castes and the Scheduled Tribes. Since theirrepresentation in services in the States have not reached therequired level, it is necessary to continue the existingdispensation of providing reservation in promotion in thecase of the Scheduled Castes and the ScheduledTribes. In view of the commitment of the Government to protectthe interests of the Scheduled Castes and the Scheduled Tribes,the government has decided to continue the existing policy ofreservation in promotion for the Scheduled Castes and theScheduled Tribes. To carry out this it is necessary to amendArticle 16 of the Constitution by inserting new clause (4-A)in the said article to provide for reservation in promotion forthe Scheduled Castes and the Scheduled Tribes.”

Thus, reservations in promotions were extended to members ofthe Scheduled Castes and Scheduled Tribes alone.

II. HISTORY OF RESERVATIONS FOR PERSONS WITHDISABILITIES

6. In Union of India v. National Federation of the Blind[7], thiscourt had reiterated the distinction between ‘vertical’ reservations forbackward classes of citizens as delineated in Indra Sawhney (supra)and ‘horizontal’ reservations for persons with disabilities under Section33[8] of the erstwhile Persons with Disabilities (Equal Opportunities,

7 Union of India v. National Federation of the Blind, (2013) 10 SCC 772. See alsogenerally – the relationship between Section 32 and 33 of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, elucidatedin Govt. of India v. Ravi Prakash Gupta, (2010) 7 SCC 626.8 33. Reservation of posts.—Every appropriate Government shall appoint in everyestablishment such percentage of vacancies not less than three per cent for persons or

AProtection of Rights and Full Participation) Act, 1995 (“1995 Act”), asfollows:

“42. perusal of Indra Sawhney [1992 Supp (3) SCC 217 :1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC477] would reveal that the ceiling of 50% reservation appliesBonly to reservation in favour of Other Backward Classesunder Article 16(4) of the Constitution of India whereas thereservation in favour of persons with disabilities is horizontal,which is under Article 16(1) of the Constitution. In fact, thisCourt in the said pronouncement has used the example of 3%reservation in favour of persons with disabilities while dealingCwith the rule of 50% ceiling. Para 812 of the judgment clearlybrings out that after selection and appointment of candidatesunder reservation for persons with disabilities they will beplaced in the respective rosters of reserved category or opencategory respectively on the basis of the category to whichDthey belong and, thus, the reservation for persons withdisabilities per se has nothing to do with the ceiling of 50%.Para 812 is reproduced as follows : (SCC pp. 735-36)

“812. … all reservations are not of the same nature. Thereare two types of reservations, which may, for the sake ofEconvenience, be referred to as ‘vertical reservations’ and‘horizontal reservations’. The reservations in favour of theScheduled Castes, the Scheduled Tribes and the OtherBackward Classes [under Article 16(4)] may be calledvertical reservations whereas reservations in favour ofphysically handicapped [under clause (1) of Article 16]Fcan be referred to as horizontal reservations. Horizontalreservations cut across the vertical reservations—what iscalled interlocking reservations. To be more precise,

class of persons with disability of which one per cent each shall be reserved for personsGsuffering from—

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:Provided that the appropriate Government may, having regard to the type of workcarried on in any department or establishment, by notification subject to such conditions,if any, as may be specified in such notification, exempt any establishment from theHprovisions of this section.

suppose 3% of the vacancies are reserved in favour ofphysically handicapped persons; this would be areservation relatable to clause (1) of Article 16. The personsselected against this quota will be placed in the appropriatecategory; if he belongs to SC category he will be placedin that quota by making necessary adjustments; similarly,if he belongs to open competition (OC) category, he willbe placed in that category by making necessaryadjustments. Even after providing for these horizontalreservations, the percentage of reservations in favour ofbackward class of citizens remains—and should remain—the same.””

This judgment did not discuss reservations in ‘promotions’, butconfined its pronouncement to initial appointments only.

7. Rajeev Kumar Gupta v. Union of India[9]authoritatively dealtwith the question of reservations in promotions for persons with disabilities.The two-judge bench decision, authored by Chelameshwar, J.,differentiated the application of Indra Sawhney (supra) as follows:

“21. The principle laid down in Indra Sawhney [IndraSawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992SCC (L&S) Supp 1 : (1992) 22 ATC 385] is applicable onlywhen the State seeks to give preferential treatment in the matterof employment under the State to certain classes of citizensidentified to be backward class. Article 16(4) does notdisable the State from providing differential treatment(reservations) to other classes of citizens under Article 16(1)[ As per Indra Sawhney case, 1992 Supp (3) SCC 217, Article16(4) is subset of Article 16(1).] if they otherwise deservesuch treatment. However, for creating such preferentialtreatment under law, consistent with the mandate of Article16(1), the State cannot choose any one of the factors such ascaste, religion, etc. mentioned in Article 16(1) as the basis.The basis for providing reservation for PWD is physicaldisability and not any of the criteria forbidden under Article16(1). Therefore, the rule of no reservation in promotions aslaid down in Indra Sawhney [Indra Sawhney v. Union of

9 Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153

AIndia, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :(1992) 22 ATC 385] has clearly and normatively noapplication to PWD.

(emphasis supplied)

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24. combined reading of Sections 32 and 33 of the 1995Act explicates fine and designed balance betweenrequirements of administration and the imperative to providegreater opportunities to PWD. Therefore, as detailed in thefirst part of our analysis, the identification exercise underCSection 32 is crucial. Once post is identified, it means thata PWD is fully capable of discharging the functions associatedwith the identified post. Once found to be so capable,reservation under Section 33 to an extent of not less thanthree per cent must follow. Once the post is identified, it mustDbe reserved for PWD irrespective of the mode of recruitmentadopted by the State for filling up of the said post.”

8. reference was then made to larger bench to resolve theissue with respect to interpretation of reservations in promotions as settledby Indra Sawhney (supra) and Rajeev Kumar Gupta (supra). Thus, inESiddaraju v. State of Karnataka[10], three-judge bench decisionrendered by Nariman, J. held:

“12. After hearing the learned counsel appearing on behalfof all the parties including the learned Additional SolicitorGeneral, we are of the view that the judgment of this CourtFcannot be faulted when it stated that Indra Sawhney [IndraSawhney v. Union of India, 1992 Supp (3) SCC 215 : 1992SCC (L&S) Supp 482] dealt with different problem and,therefore, cannot be followed.”

9. Thereafter, in State of Kerala v. Leesamma Joseph[11], two-judge bench judgment authored by Kaul, J. held in unequivocal termsGthat reservations in promotions could not be denied to persons withdisabilities:

10 Siddaraju v. State of Karnataka, (2020) 19 SCC 572.H11 State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208.

11 State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208.

“18. On examination of the aforesaid plea we find that thereis merit in what the learned Amicus Curiae contends and weare of the view that really this issue is no more res integra inview of the judgments of this Court in Union of India v. RaviPrakash Gupta [Union of India v. Ravi Prakash Gupta,(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] and Union ofIndia v. National Federation of the Blind [Union ofIndia v. National Federation of the Blind, (2013) 10 SCC 772: (2014) 2 SCC (L&S) 257] opining that reservation has tobe computed with reference to the total number of vacanciesin the cadre strength and no distinction can be made betweenthe posts to be filled by direct recruitment and by promotion.Thus, total number of vacancies in the cadre strength wouldinclude the vacancies to be filled in by nomination as well asby promotion. In fact, this was the view adopted by the BombayHigh Court discussed aforesaid in National Confederationfor Development of Disabled v. Union of India [NationalConfederation for Development of Disabled v. Union of India,2015 SCC OnLine Bom 5112] with the challenge raised tothe same in SLP being rejected in Union of India v. NationalConfederation for Development of Disabled [Union ofIndia v. National Confederation for Development of Disabled,(2015) 13 SCC 643 : (2016) 1 SCC (L&S) 276] . We may notethe observations in Rajeev Kumar Gupta v. Union ofIndia [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC153 : (2017) 2 SCC (L&S) 605] in para 24 to the effect :(Rajeev Kumar Gupta case [Rajeev Kumar Gupta v. Unionof India, (2016) 13 SCC 153 : (2017) 2 SCC (L&S) 605] ,SCC p. 162)

“24. … Once the post is identified, it must be reserved forPwD irrespective of the mode of recruitment adopted bythe State for filling up of the said post.”

(emphasis supplied)

and direction was issued to the Government to extend 3%reservation to PwD in all identified posts in Group andGroup “irrespective of the mode of filling up of such posts”.*****************

ABC

II. Whether reservation under Section 33 of the 1995 Act isdependent upon identification of posts as stipulated by Section32?

21. On plea of the learned Amicus Curiae, which weunhesitatingly accept, there can be little doubt that it wasnever the intention of the legislature that the provisions ofSection 32 would be used as tool to frustrate the benefits ofreservation under Section 33. In fact, identification of postsfor purposes of reservation had to take place immediatelyafter the 1995 Act. resistance to such reservation is obviousfrom the delaying tactics adopted by most of the Governmentauthorities in truly implementing the intent. It thus shows thatsometimes it is easier to bring legislation into force but farmore difficult to change the social mindset which wouldendeavour to find ways and means to defeat the intent of theAct enacted and Section 32 was classic example of the same.In Union of India v. Ravi Prakash Gupta [Union ofIndia v. Ravi Prakash Gupta, (2010) 7 SCC 626 : (2010) 2SCC (L&S) 448] also, this Court mandated the identificationof posts for purposes of reservation. Thus, what is required isidentification of posts in every establishment until exemptedunder proviso to Section 33. No doubt the identification of

the posts was prerequisite to appointment, but then theappointment cannot be frustrated by refusing to comply withthe prerequisite. This view was affirmed by larger Bench ofthree Judges in Union of India v. National Federation of theBlind [Union of India v. National Federation of the Blind,F(2013) 10 SCC 772 : (2014) 2 SCC (L&S) 257].”

III. ANALYSIS

10. At the outset, it is imperative to observe that the 1995 Act didnot contain provision for reservations in ‘promotions’ for persons withdisabilities appointees, unlike its successor enactment, the Rights ofGPersons with Disabilities Act, 2016 (“2016 Act”),[12] which enabled theState 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

12 “34. Reservation. – [***] Provided that the reservation in promotion shall be inaccordance with such instructions as are issued by the appropriate Government fromHtime to time”.

suffering from (i) blindness or low vision; (ii) hearing impairment; and(iii) locomotor disability or cerebral palsy. There is no mention of thisextending to promotions. In the absence of such statutory power, itsinclusion in the extant provisions by this court is not beyond doubt. Itcannot be said that the manner in which such reservations have beengranted in promotions – even if horizontally – as matter of right, is notcontrary to the express prohibition of the same by the nine judges inIndra Sawhney (supra). I therefore hold serious reservation in itsinterpretation otherwise.11. While Indra Sawhney (supra) no doubt pertained to verticalreservations for backward classes of citizens, this understanding ofhorizontal reservations infact seeded from this very judgment.[13] It cannotbe said that its operative portion on reservations in promotions isinapplicable to other classes of citizens on that front alone. Such anexercise of distinguishing its application misses the crux of its reasoning– that while provision of reservations in initial appointments furthers themandate of substantive equality, its application to promotions militatesagainst the same mandate. It was not the intention of Article 16 of theConstitution to compromise on administrative inefficiency by culling thespirit of competition-after all, positions gained by promotions taper higherup. To ear-mark certain portion to one class of citizens, and not others,who may have also gained initial appointments on the strength of suchhorizontality (such as women, retired/ex-servicemen, etc.) is notconstitutionally protected – the only exception to reservations inpromotions is SC / ST appointees, as provided under Article 16(4A).

12. Additionally, horizontal reservations, unlike their verticalcounterparts, are not rigid, but have fluidity to them, as observed in thiscourt’s pronouncement in Saurav Yadav v. State of Uttar Pradesh.[14]A candidate eligible for horizontal reservation is not confined to theirvertical category. Migrations are permissible to allow the best candidatesto emerge from this interlocking framework of reservations. However,such mechanism is unworkable in promotions, where vertical andhorizontal qualifiers are absent (barring those for SC/ST candidates).The (then) 3% reservation set aside for persons with disabilitiescandidates no longer remains horizontal, but is implemented vertically.While the 2016 Act enables the State to work out this mechanism, suchis conspicuously absent in the 1995 Act.

13 See, para 812 of Indra Sawhney (supra).

14 Saurav Yadav v State of Uttar Pradesh, (2021) 4 SCC 542.

A13. This also leads to differential treatment of candidates belongingto the same backward class as recognized by Article 16(4) of theConstitution. An OBC candidate who is also person with disabilities,will be given preference over non-persons with disabilities OBCcandidate in promotions, which is impermissible. Additionally, on readingof T. Devadasan and N.M. Thomas (supra), it is relevant to note thatBwhile reservations for backward classes are to be carried forward, the2016 Act permits carrying forward of horizontal reservations for personswith disabilities candidates for maximum period of two years. However,the amendment to the Constitution recognizes that ‘carry forward’vacancies can exceed the 50% limit in promotional vacancies. ThisCamendment [inserting Article 16(4-B)] was upheld by this court in M.Nagaraj v Union of India.[15]

14. The laudable intent behind provision such as Section 33 ofthe 1995 Act, and Section 34 of the 2016 Act, is undeniable. That personswith disabilities need to be accommodated, in public service, is given.DAt the same time, this reasonable accommodation ought not to opengates for demands by those benefitting other kinds of horizontalreservation, for reservation in promotional vacancies in public services.As stated at the outset, I concur with the relief proposed to the appellant,and accordingly agree with the directions contained in Datta, J.’sjudgment.E

In view of the conclusions recorded by Hon’ble Mr. JusticeDipankar Datta (concurred to by Hon’ble Mr. Justice S.R. Bhat) theFappeal is disposed of in terms of the following directions:

“We direct RBI to grant notional promotion to Mr. Nair on thepost of Assistant Manager Grade – ‘A’, to be effective fromthe date of presentation of the writ petition before the HighCourt, i.e., 27[th] September, 2006 and actual promotion fromG15[th] September, 2014, i.e., the last date for compliance of theorder of the High Court. This exercise must be completed withina period of 2 (two) months from date. The monetary benefitsaccruing to Mr. Nair with effect from 15[th] September, 2014shall be computed and released by 4 (four) months from date.

H15 M. Nagaraj v Union of India, (2006) 8 SCC 212.

Since Mr. Nair has couple of years for his retirement onsuperannuation, it is needless to observe that in computing isretiral benefits due regard shall be given to his promotion,as directed above, with effect from 27[th] September, 2006.

The appeals stand disposed of on the above terms. Partiesshall bear their own costs.”

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals disposed of.