Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 – s. 33 – Rights of Persons with Disabilities Act, 2016 – s. 34 – Reservation in promotion for person with disabilities – Bank employee having post polio paralysis of limbs with 50% disability – Appeared for All India Merit Test, to secure promotion to Class I post, however, fell short of qualifying marks by three marks – Representation for condonation of short fall of marks, on par with SC/ST category but not considered – Writ petition by the employee – High Court directed the bank to apply reservation for persons with disabilities on the basis of total number of vacancies appearing in direct recruitment quota as well as in promotion quota in Group ‘A’ and Group ‘B’ posts respectively – Review petition filed by the employee since the High Court did not clarify the position on grace marks and his claim of qualification/seniority from the date of eligibility – Disposed of, without examining the merits – Held: PwD Act, 1995 not only mandated reservation in appointment but also contemplated reservation in promotion – PwD Act, 1995 did not contain any express provision mandating reservation of posts for promotion to persons with disabilities serving in the feeder cadre though it is ordained that no promotion shall be denied to a person merely on the ground of his disability – Mere absence of an express mandate in requiring reservation in promotion for persons with disabilities could not have been construed as not obliging the appropriate Government not to keep reserved vacancies on promotional posts – On facts, it was harsh to apply standards which are applicable to general candidates to the employee while he competed with such general candidates for securing his promotion – Bank ought to have taken an informed decision in this regard commensurate with the aspirations of persons with disabilities – Omission or failure of the Bank in condoning the shortfall in marks coupled with the neglect to identify a Group ‘A’ post suitable for reservation to accommodate the employee on promotion is unjustifiable – In view thereof, issuance of direction to the Bank to grant promotion to the employee on the post of Assistant Manager Grade-‘A’ – Service law – Constitution of India – Art 142. Disposing of the appeals, the Court
Per Dipankar Datta, J.
HELD: 1.1 Mere absence of an express mandate in Chapter VI of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, requiring reservation in promotion for persons with disabilities could not have been construed as not obliging the appropriate Government not to keep reserved vacancies on promotional posts for those answering clauses (i) to (iii) of section 33. Though the language used in section 33 could admit of a little bit of confusion, the crucial words there are “shall appoint in every establishment”. Paraphrased, it implies that while the appropriate Government is making appointment in every establishment, it ought to reserve a minimum of 3 (three) per cent vacancies for persons or class of persons with disability, of which 1 (one) per cent each shall be reserved for those persons with disabilities of the nature mentioned in the clauses therein, i.e., (i) blindness or low vision,
(ii) hearing impairment, and (iii) locomotor disability or cerebral palsy, and that appointments shall be made on the posts identified for each such disability as in the said clauses. It is, therefore, the statutory duty enjoined by section 33 that there must be appointment of persons with disabilities in every establishment which ought not to be less than 3 (three) per cent but a minimum of 1 (one) percent of vacancies, available on identified posts for each disability, has to be reserved. The confusion, might have stemmed from the narrow interpretation of the word “appoint”, without realizing that “promotion” is also included within “appointment”. The term “appointment” is quite broad and includes appointment by ‘direct recruitment’ as well as appointment by way of ‘promotion’. Prior to Rajiv Kumar Gupta’s (case), there was no authoritative pronouncement on the aspect of reservation in promotion. The interpretation of section 33 of the PwD Act, 1995 made by Rajiv Kumar Gupta’s case finds its resonance in Siddaraju’s case. [Para 16][792-E-H; 793-A-C]
1.2 The Rights of Persons with Disabilities Act, 2016 expressly makes available benefits of reservation to promotional posts for persons with disabilities in that the first proviso to section 34 ordains that reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. Law within the meaning of Article
141 of the Constitution of India having been declared by Siddaraju’s and the GoI having implemented the order of this Court dated 28th September, 2021 noted above and issued OM dated 17th May, 2022, the same constitutes “instructions” as contemplated by the first proviso to section 34 of the PwD Act, 2016. Such instructions contemplate reservation in promotion to posts in Group – ‘A’ in the lowest grade. [Para 17][793-C-E]
1.3 When the provisions of the PwD Act, 1995 and the PwD Act, 2016 in relation to reservation in promotion for persons with disabilities are contrasted, it is clear as crystal that what was implicit in the former has been made explicit by the latter. [Para 18][793-E-F]
1.4 There is no dearth of authority for the proposition that the PwD Act, 1995 not only mandated reservation in appointment but also contemplated reservation in promotion. Any perception and understanding of section 33 of the PwD Act, 1995 not contemplating reservation in promotion is erroneous and fallacious. [Para 40 and 41][800-A-B]
1.5 OM dated 29th December, 2005 having been set aside in Rajeev Kumar Gupta’s case, the first question as to whether modification of paragraph 14 of the OM dated 29th December 2004 brought about by OM dated 8th December, 2013, would apply retrospectively, does not survive for consideration. Furthermore, Rajeev Kumar Gupta’s case having directed the GoI to extend 3 (three) per cent reservation to the persons with disabilities in all identified posts in Group ‘A’ and Group ‘B’, irrespective of the mode of filling up of such posts, and the larger Bench in Siddaraju’s case having given its stamp of approval to such decision, the second question also stands squarely answered against the appellants. Finally, the question as to whether the High Court was right in relying upon National Confederation of Development of Disabled’s case is no longer res integra having regard to the multiple decisions of this Court on the point affirming the position that reservation in employment contemplated in section 33 of the PwD Act, 1995 covers all posts identified for each of the 3 (three) kinds of disability mentioned therein and is not restricted to Group ‘C’ and Group ‘D’ posts. The view taken therein is accepted. [Para 42][800-B-F]
1.6 The version of the RBI before the High Court was that there is no provision for reservation in promotional posts in Grade –‘A’ for persons with disabilities; hence, benefit of promotion on a reserved vacancy could not be granted to the respondent. This was indeed the ostensible reason for which the relaxed standards of assessment available for SC/ST candidates was not extended to persons with disabilities, a fortiori, to the respondent. In other words, the respondent’s claim for promotion on a reserved vacancy for persons with disabilities, upon application of relaxed standards, could not have been considered in the absence of any identified Group ‘A’ post. That the appropriate Government must make available reservation in the matter of appointment of persons with disabilities in identified posts of Group ‘A’ and Group ‘B’ had been conclusively and authoritatively decided by this Court in Ravi Prakash Gupta’s case and National Federation of the Blind’s case by the time the impugned judgment and order was rendered. That being the position, no valid contention could have been advanced that reservation for persons with disabilities is not available for appointment on Group-‘A’ posts. What remained was whether reservation for persons with disabilities is available for promotional appointment on Group – ‘A’ posts. That issue has also been given a quietus by Rajiv Kumar Gupta’s case, Siddaraju’s case and Leesamma Joseph’s case. The two big impediments in the path of the respondent, thus, stand removed by reason of a pragmatic and reasonable interpretation of the PwD Act, 1995. [Para 45][801-G-H; 802-A-D]
1.7 It cannot, however, be gainsaid that when the respondent had participated in the Panel Year 2003 examination, no decision had been rendered by this Court that reservation in promotion is permissible in respect of Group ‘A’ posts. It is equally true that this Court while interpreting sections 32 and 33 of the PwD Act, 1995 did not declare the law laid down by it to have prospective application. It is a principle, well-settled in law, that the interpretation of a provision of law relates back to the date of the law itself. This is essentially for the reason that the duty of the Court is not to legislate but to interpret the law. However, such principle is subject to the exception that this Court may, in a given case, declare that its interpretation would have effect prospectively. That is not the express intention of this Court in any of the decisions referred. This being the position in law, there is no doubt that the respondent did have a statutorily conferred right all through to claim that reservation in promotional appointment in Group ‘A’ posts is ingrained in the PwD Act, 1995. [Para 46][802-D-G]
1.8 As regards, whether the RBI was justified in not condoning the shortfall of 3 (three) marks pertaining to the 2003 exa Indra Sawhney’s mination taken by the respondent to enable him secure promotion at par with the relaxed standards applicable to SC/ST candidates, it is noted from the communication dated 18.10.2006 issued by the Banking Division, Department of Economic Affairs, Ministry of Finance, GoI that the same surfaced as a follow-up step to comply with this Court’s order dated 19.03.2002 in A.I. Confederation’s case. Even otherwise, to reach out to persons with disabilities and grant them the facilities and benefits that the 1995 Act envisaged, it was rather harsh to apply standards which are applicable to general candidates to the respondent while he competed with such general candidates for securing his promotion. RBI, as a model employer, ought to have taken an informed decision in this regard commensurate with the aspirations of persons with disabilities. [Para 47 and 48][802H; 803-A-C]
1.9 Persons with disabilities are not entitled to be judged by the same relaxed standards that are applied to assess candidature of SC/ST candidates. The omission or failure of the RBI in condoning the shortfall in marks coupled with the neglect to identify a Group ‘A’ post suitable for reservation to accommodate the respondent on promotion appears to to be indefensible. [Para 49 and 50][803-C-D]
1.10 There was no authoritative pronouncement of this Court interpreting the PwD Act, 1995, making available reservation in promotional appointments for persons with disabilities in Group ‘A’ posts, when the respondent took the examination for promotion to the post of Assistant Manager, Grade-I in 2004. The first time it came to be so declared was when the decision in Rajeev Kumar Gupta’s case was pronounced. As regards whether the RBI, in the circumstances, be directed to relax the standard of assessment and grant promotion to the respondent with retrospective effect, the High Court did not mandatorily direct grant of promotion to the respondent. The High Court’s judgment, unintendedly, was confined to application of reservation policy. The High Court did not declare that the respondent should also be entitled to condonation of shortfall in marks with reference to the Panel Examination 2003. Insofar as other qualifying requirements under the relevant rules are concerned, the High Court clarified that it may not be understood to have expressed any opinion on the question of the respondent satisfying such requirements. Given such contours of the order, it was open to the RBI to consider the respondent for promotion and pass appropriate order either granting or denying him promotion in accordance with the prevailing exposition of law. Instead of complying with the order, the RBI carried the judgment and order to this Court on 12th September, 2014. GoI also followed suit. It was the respondent who rushed to the High Court with a review petition within the period of limitation, whereupon his rights have been kept open noticing pendency of the petition for special leave of the RBI. It seems that the RBI has on its own invited the uncomfortable position in which it finds itself now. The decisions of this Court rendered during the pendency of these appeals have to be considered and applied, notwithstanding the fact that the same were not available when the High Court decided the respondent’s writ petition finally. RBI might not have faced this conundrum had the order of the High Court been complied with on time. [Paras 52 and 53][803-E-H; 804-A-D]
1.11 Dismissal without any observation has the potential of generating further unnecessary litigation. At the same time, though the respondent did not file any cross-appeal, he had applied for review and has been conferred the liberty to revive the review petition after disposal of proceedings by this Court. [Para 54][804E-F]
1.12 Having regard to the materials on record and for answering question to what extent relief can legitimately be extended to the respondent, it is considered appropriate to invoke Article 142 of the Constitution “for doing complete justice” in the cause. RBI is directed to grant notional promotion to the respondent on the post of Assistant Manager Grade-‘A’, to be effective from the date of presentation of the writ petition before the High Court, i.e., 27th September, 2006 and actual promotion from 15th September, 2014, i.e., the last date for compliance of the order of the High Court. This exercise must be completed within a period of 2 (two) months from date. The monetary benefits accruing to the respondent with effect from 15th September, 2014 shall be computed and released by 4 (four) months from date. [Para 55-56][804-F-H; 805-A]
National Confederation for Development of Disabled & Anr. v. Union of India & Ors. PIL 106 of 2010; Govt. of India & Anr. v. Ravi Prakash Gupta & Anr. (2010) 7 SCC 626 : [2010] 7 SCR 851; Union of India v. National Federation of the Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023; Rajiv Kumar Gupta and Ors. v. Union of India and Ors. (2016) 13 SCC 153 : [2016] 3 SCR 407; Siddaraju v. State of Karnataka and Ors. (2020) 19 SCC 572; State of Kerala and Ors. v. Leesamma Joseph (2021) 9 SCC 208; A.I.
Confederation of the Blind v. Union of India & Anr. (2014) 15 SCC 481; Indra Sawhney v. Union of India (1992) 3 Supp SCC 217 : [1992] 2 Suppl. SCR 454 – referred to.
Per S. Ravindra Bhat J: (Supplementing)
HELD: 1.1 The Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 did not contain a provision for reservations in ‘promotions’ for persons with disabilities appointees, unlike its successor enactment, the Rights of Persons with Disabilities Act, 2016, which enabled the State to do the same. Section 33 of the 1995 Act only provided for 3% reservation for posts identified under Section 32, with 1% each for persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy. There is no mention of this extending to promotions. In the absence of such statutory power, its inclusion in the extant provisions by this Court is not beyond doubt. It cannot be said that the manner in which such reservations have been granted in promotions-even if horizontally-as a matter of right, is not contrary to the express prohibition of the same by the nine judges in Indra Sawhney’s case. Therefore, there is serious reservation in its interpretation otherwise. [Para 10][820G; 821-A-B]
1.2 While Indra Sawhney’s case no doubt pertained to vertical reservations for backward classes of citizens. It cannot be said that its operative portion on reservations in promotions is inapplicable to other classes of citizens on that front alone. Such an exercise of distinguishing its application misses the crux of its reasoning – that while provision of reservations in initial appointments furthers the mandate of substantive equality, its application to promotions militates against the same mandate. It was not the intention of Article 16 of the Constitution to compromise on administrative inefficiency by culling the spirit of competition-after all, positions gained by promotions taper higher up. To ear-mark a certain portion to one class of citizens, and not others, who may have also gained initial appointments on the strength of such horizontality (such as women, retired / exservicemen, etc.) is not constitutionally protected-the only exception to reservations in promotions is SC/ST appointees, as provided under Article 16(4A). [Para 11][821-C-E]
1.3 Horizontal reservations, unlike their vertical counterparts, are not rigid, but have fluidity to them. A candidate eligible for horizontal reservation is not coffined to their vertical category. Migrations are permissible to allow the best candidates to emerge from this interlocking framework for reservations. However, such a mechanism is unworkable in promotions, where vertical and horizontal qualifiers are absent (barring those for SC/ST candidate. The (then) 3% reservations set aside for pesons with disabilities candidates no longer remains horizontal, but is implemented vertically. While the 2016 Act enables the State to work out this mechanism, such is conspicuously absent in the 1995 Act. [Para 12][821-F-G]
1.4 This also leads to differential treatment of candidates belonging to the same backward class as recognized by Article 16(4) of the Constitution. An OBC candidate who is also a person with disabilities, will be given preference over a non-persons with disabilities OBC candidate in promotions, which is impermissible. Additionally, on a reading of T. Devadasan and N.M. Thomas’s case, it is relevant to note that while reservations for backward classes are to be carried forward, the 2016 Act permits carrying forward of horizontal reservations for persons with disabilities candidates for a maximum period of two years. However, the amendment to the Constitution recognizes that ‘carry forward’ vacancies can exceed the 50% limit in promotional vacancies. This amendment [inserting Article 16(4-B)] was upheld by this Court in M.Nagraj case.[Para 13][822-A-C]
1.5 The laudable intent behind a provision such as Section
33 of the 1995 Act, and Section 34 of the 2016 Act, is undeniable. It is given that persons with disabilities need to be accommodated, in public service. At the same time, this reasonable accommodation ought not to open gates for demands by those benefitting other kinds of horizontal reservation, for reservation in promotional vacancies in public services. [Para 14][822-D]
General Manager, S. Rly. v. Rangachari (1962) 2 SCR 586; T. Devadasan v. Union of India [1964] 4 SCR 680; State of Kerala v. N.M. Thomas (1976) 2 SCC 310 : [1976] 1 SCR 906; Indra Sawhney v. Union of India (1992) 3 Supp SCC 217 : [1992] 2 Suppl. SCR 454; Union of India v. National Federation of the Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023; Govt. of India v. Ravi Prakash Gupta (2010) 7 SCC 626 : [2010]
7 SCR 851; Rajeev Kumar Gupta v. Union of India (2016) 13 SCC 153 : [2016] 3 SCR 407; Siddaraju v. State of Karnataka (2020) 19 SCC 572; State of Kerala v. Leesamma Joseph (2021) 9 SCC 208; Saurav Yadav v State of Uttar Pradesh (2021) 4 SCC 542 : [2020] 11 SCR 281; M. Nagaraj v. Union of India (2006) 8 SCC
212 : [2006] 7 Suppl. SCR 336 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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