The case began as a writ petition in the Bombay High Court, which ruled in Nair’s favor. RBI and the Union of India appealed to the Supreme Court.
2023 INSC 613 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 529 OF 2023
RESERVE BANK OF INDIA & ORS. ...APPELLANT(S)
VERSUS
A.K. NAIR & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 530 OF 2023
O R D E R
In view of the conclusions recorded by Hon’ble Mr. Justice
Dipankar Datta (concurred to by Hon’ble Mr. Justice S.R. Bhat) the
appeal is disposed of in terms of the following directions:
“We direct RBI to grant notional promotion to Mr. Nair 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., 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. This exercise must be completed
within a 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) months from
date.
Since Mr. Nair has a couple of years for his retirement on
superannuation, it is needless to observe that in computing
his retiral 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. Parties
shall bear their own costs.”
………………………………………………….
(S. RAVINDRA BHAT)
……………………………………………...
(DIPANKAR DATTA)
NEW DELHI;
4
th
JULY 2023
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 529 OF 2023
RESERVE BANK OF INDIA & ORS. ...APPELLANT(S)
VERSUS
A.K. NAIR & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 530 OF 2023
J U D G M E N T
S. RAVINDRA BHAT, J.
1.I have had the benefit of reading the detailed and elaborate reasoning of
my learned brother judge, Dipankar Datta, J. While I concur with the
conclusions and relief granted to the appellant, I wish to record a few
observations, by way of abundant caution, on the larger question of reservations
in promotions for any class of citizens other than those covered by Article 16(4-
A) of the Constitution.
I.HISTORY OF RESERVATIONS IN PROMOTIONS
2.The question of reservations in promotions has a chequered history. In
General Manager, S. Rly. v. Rangachari
1
, a constitution bench in a 3:2 decision
held that reservations in promotions were permissible. They were not merely
restricted to initial appointments, but also selected posts subsequently.
2
This was
1 General Manager, S. Rly. v. Rangachari, (1962) 2 SCR 586.
2 Id., para 27.
2
a decision rendered during the era when this court’s understanding of Articles
15(4) and 16(4) was that such provisions were exceptions to the rule under
Articles 15(1) and 16(1). However, this interpretation underwent a change
3
, as
elucidated 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 an exception to Article 16 (1). It
is only an emphatic way of putting the extent to which equality of
opportunity could be carried viz., even up to the point of making
reservation”.
5
In Indra Sawhney v Union of India
6
, a nine-judge constitution bench, equipped
with this interpretation, revisited the question of reservations in promotions.
Question No. 7 was unambiguously cast: “Whether Article 16 permits
reservations being provided in the matter of promotions?” Eight out of nine
justices considered the issue, and held that the view expressed in Rangachari
(supra) was erroneous, and that reservations in promotions were impermissible
under Article 16.
3.The observations made by different judges in their opinions are extracted
below:
a.Per Kania, Venkatachalaiah and BP Jeevan Reddy, JJ:
“828. We see no justification to multiply ‘the risk’, which would be the
consequence of holding that reservation can be provided even in the matter
of promotion. While it is certainly just to say that a handicap should be
given to backward class of citizens at the stage of initial appointment, it
would be a serious and unacceptable inroad into the rule of equality of
opportunity to say that such a handicap should be provided at every stage of
promotion throughout their career. That would mean creation of a
permanent separate category apart from the mainstream — a vertical
division of the administrative apparatus. The members of reserved
3 The dissenting opinion of Subba Rao, J. in T. Devadasan v. Union of India, (1964) 4 SCR 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.
5 Ibid., para 78.
6 Indra Sawhney v Union of India, 1992 Supp (3) SCC 217.
3
categories need not have to compete with others but only among themselves.
There would be no will to work, compete and excel among them. Whether
they work or not, they tend to think, their promotion is assured. This in turn
is bound to generate a feeling of despondence and ‘heart-burning’ among
open competition members. All this is bound to affect the efficiency of
administration. Putting the members of backward classes on a fast-track
would necessarily result in leap-frogging and the deleterious effects of
“leap-frogging” need no illustration at our hands. At the initial stage of
recruitment reservation can be made in favour of backward class of citizens
but once they enter the service, efficiency of administration demands that
these members too compete with others and earn promotion like all others;
no further distinction can be made thereafter with reference to their “birth-
mark”, as one of the learned Judges of this Court has said in another
connection. They are expected to operate on equal footing with others.
Crutches cannot be provided throughout one's career. That would not be in
the interest of efficiency of administration nor in the larger interest of the
nation. It is wrong to think that by holding so, we are confining the
backward class of citizens to the lowest cadres. It is well-known that direct
recruitment takes place at several higher levels of administration and not
merely at the level of Class IV and Class III. Direct recruitment is provided
even at the level of All India Services. Direct recruitment is provided at the
level of District Judges, to give an example nearer home. It may also be
noted that during the debates in the Constituent Assembly, none referred to
reservation in promotions; it does not appear to have been within their
contemplation.
*****************
831. We must also make it clear that it would not be impermissible for the
State to extend concessions and relaxations to members of reserved
categories in the matter of promotion without compromising the efficiency
of the administration. The relaxation concerned in Thomas [(1976) 2 SCC
310, 380 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] and the concessions
namely carrying forward of vacancies and provisions for in-service
coaching/training in Karamchari Sangh [(1981) 1 SCC 246, 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 lower
qualifying marks or a lesser level of evaluation for the members of reserved
categories since that would compromise the efficiency of administration. We
reiterate that while it may be permissible to prescribe a reasonably lesser
qualifying marks or evaluation for the OBCs, SCs and STs — consistent
with the efficiency of administration and the nature of duties attaching to
the office concerned — in the matter of direct recruitment, such a course
would not be permissible in the matter of promotions for the reasons
recorded hereinabove.”
b.Pandian, J:
“240. In Mohan Kumar Singhania v. Union of India [1992 Supp (1) SCC
594 : 1992 SCC (L&S) 455 : (1992) 19 ATC 881] a three-Judge Bench of
4
this Court to which I was a party has taken a view that once candidates
even from reserved communities are allocated and appointed to a Service
based on their ranks and performance and brought under the one and same
stream of category, then they too have to be treated on par with all other
selected candidates and there cannot be any question of preferential
treatment at that stage on the ground that they belong to reserved
community though they may be entitled for all other statutory benefits such
as the relaxation of age, the reservation etc. Reservation referred to in that
context is referable to the reservation at the initial stage or the entry point
as could be gathered from that judgment.”
c.Thommen, J:
“307. The initial appointments may be made at various levels or grades of
the hierarchy in the service. There is no warrant in Article 16(4) to conclude
from the expression ‘reservation of appointments or posts’ that reservation
extends not merely to the initial appointment, but to every stage of
promotion. Once appointed in a service, any further discrimination in
matters relating to conditions of service, such as salary, increments,
promotions, retirement benefits, etc. is constitutionally impermissible, it
being the very negation of equality, fairness and justice.
*****************
309. In whichever post that a member of a backward class is appointed,
reservation provisions are attracted at the stage of his initial appointment
and not subsequently. Further promotions must be governed by common
rules applicable to all employees of the respective grades. Reasoning to the
contrary in decisions, such as General Manager, S.
Rly. v. Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36] ; State of
Punjab v. Hiralal [(1970) 3 SCC 567 : (1971) 3 SCR 267] ; Akhil Bharatiya
Soshit Karamchari Sangh (Railway) v. Union of India [(1981) 1 SCC 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) can only be “in
favour of any backward class of citizens” and not for individuals. Article
16(1) guarantees a right to an individual citizen whereas Article 16(4)
permits protective discrimination in favour of a class. It is, therefore,
mandatory that the opportunity to compete for the reserve posts has to be
given to a class and not to the individuals. When direct recruitment to a
service is made the ‘backward class’ as a whole is given an opportunity to
be considered for the reserve posts. Every member of the said class has a
right to compete. But that is not true of the process of promotion. The
backward class as a collectivity is nowhere in the picture; only the
individuals, who have already entered the service against reserve posts, are
considered. In the higher echelons of State services — cadre strength being
small — there may be very few or even a single ‘backward class’ candidate
to be considered for promotion to the reserve post. An individual citizen's
5
right guaranteed under Article 16(1) can only be curtailed by providing
reservations for a ‘backward class’ and not for backward individuals. The
promotional posts are not offered to the backward class. Only the
individuals are benefited. The object, context and the plain language of
Article 16(4) make it clear that the job reservation can be done only in the
direct recruitment and not when the higher posts are filled by way of
promotion.”
e.PB Sawant, J
“540. However, if it becomes necessary to answer the question, it will have
to be held that the reservations both under Articles 16(1) and 16(4) should
be confined only to initial appointments. Except in the decision
in Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36] there was no other
occasion for this Court to deliberate upon this question. In that decision, the
Constitution Bench by a majority of three took the view that the reservations
under Article 16(4) would also extend to the promotions on the ground that
Articles 16(1) and 16(2) are intended to give effect to Articles 14 and 15(1).
Hence Article 16(1) should be construed in a broad and general, and not
pedantic and technical way. So construed, “matters relating to
employment” cannot mean merely matters prior to the act of appointment
nor can ‘appointment to any office’ mean merely the initial appointment but
must also include all matters relating to the employment, that are either
incidental to such employment or form part of its terms and conditions, and
also include promotion to a selection post. The Court further observed that:
(SCR headnote p. 587)
“Although Article 16(4), which in substance is an exception to Articles
16(1) and 16(2) and should, therefore, be strictly construed, the court
cannot in construing it overlook the extreme solicitude shown by the
Constitution for the advancement of socially and educationally backward
classes of citizens.The scope of Article 16(4), though not as extensive as that
of Article 16(1) and (2), — and some of 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 no doubt that it must
include appointments and posts in the services. To put a 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
for the reservation of appointments as well as selection posts.”
*****************
543. It has been pointed out earlier that the reservations of the backward
classes under Article 16(4) have to be made consistently with the
maintenance of the efficiency of administration. It is foolhardy to ignore the
consequences to the administration when juniors supersede seniors
although the seniors are as much or even more competent than the juniors.
When reservations are kept in promotion, the inevitable consequence is the
phenomenon of juniors, however low in the seniority list, stealing a march
over their seniors to the promotional post. When further reservations are
kept at every promotional level, the juniors not only steal march over their
seniors in the same grade but also over their superiors at more than one
higher level. This has been witnessed and is being witnessed frequently
6
wherever reservations are kept in promotions. It is naive to expect that in
such circumstances those who are superseded, (and they are many) can
work with equanimity and with the same devotion to and interest in work as
they did before. Men are not saints. The inevitable result, in all fields of
administration, of this phenomenon is the natural resentment, heart-
burning, frustration, lack of interest in work and indifference to the duties,
disrespect to the superiors, dishonour of the authority and an atmosphere of
constant bickerings and hostility in the administration. When, further, the
erstwhile subordinate becomes the present superior, the vitiation of the
atmosphere has only to be imagined. This has admittedly a deleterious effect
on the entire administration.
544. It is not only the efficiency of those who are thus superseded which
deteriorates on account of such promotions, but those superseding have
also no incentive to put in their best in work. Since they know that in any
case they would be promoted in their reserved quota, they have no
motivation to work hard. Being assured of the promotion from the
beginning, their attitude towards their duties and their colleagues and
superiors is also coloured by this complex. On that account also the
efficiency of administration is jeopardised.
545. With respect, neither the majority nor the minority in the Constitution
Bench has noticed this aspect of the reservations in promotions. The later
decisions which followed Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36]
were also not called upon to and hence have not considered this vital
aspect. The efficiency to which the majority has referred is with respect to
the qualifications of those who would be promoted in the reserved quota.”
f.Sahai, J
“622. But, inadequacy of representation is creative of jurisdiction only. It is
not measure of backwardness. That is why less rigorous test or lesser marks
and competition amongst the class of unequals at the point of entry has
been approved both by this Court and American courts. But a student
admitted to a medical or engineering college is further not granted
relaxation in passing the examinations. In fact this has been explained as a
valid basis in American decisions furnishing justification for racial
admissions on lower percentage. Rationale appears to be that everyone
irrespective of the source of entry being subjected to same test neither
efficiency is effected nor the equality is disturbed. After entry in service the
class is one, that of employees. If the social scar of backwardness is carried
even thereafter, the entire object of equalisation stands frustrated. No
further classification amongst employees would be justified as is not done
amongst students.
623. Constitutional, legal or moral basis for protective discrimination is
redressing identifiable backward class for historical injustice. That is they
are today, what they would not have been but for the victimisation.
Remedying this and to balance the unfair advantage gained by others is the
constitutional responsibility. But once the advantaged and disadvantaged,
the so-called forward and backward, enter into the same stream then the
7
past injustice stands removed. And the length of service, the seniority in
cadre of one group, to be specific the forward group, is not as a result of
any historical injustice or undue advantage earned by his forefather or
discrimination against the backward class, but because of the years of
service that are put by an employee, in his individual capacity. This
entitlement cannot be curtailed by bringing in again the concept of
victimisation.
624. Equality either as propagated by theorists or as applied by courts
seeks to remove inequality by “parity of treatment under parity of
condition” [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1 SCR
906] . But once in “order to treat some persons equally, we must treat them
differently” [57 L Ed 2d 750 : 438 US 265 (1978)] has been done and
advantaged and disadvantaged are made equal and are brought in one class
or group then any further benefit extended for promotion on the inequality
existing prior to be brought in the group would be treating equals
unequally. It would not be eradicating the effects of past discrimination but
perpetuating it.
625. Constitutional sanction is to reserve for backward class of persons.
That is class or group interest has been preferred over individual. But
promotion from a class or group of employees is not promoting a group or
class but an individual. It is one against other. No forward class versus
backward class or majority against minority. It would, thus, be contrary to
the Constitution. Brother Kuldip Singh, 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)? Detailed reasons have
been given earlier, against any reservation under cover of doctrine of
reasonable classification. Eradication of poverty which “is not to be exalted
or praised, but is an evil thing which must be fought and stamped out”
[ Jawaharlal Nehru, quoted from Dorothy, Norman (Ed.) Nehru] is one of
the ideals set out in the Preamble of the Constitution as it postulates to
achieve economic justice and exhorts the State under Article 38(2) to
“minimise the inequality of income”. All the same, can the State for this
purpose reserve posts for the economically backwards in service. Right to
equal protection of laws or equality before law in ‘benefits, and burdens’ by
operation of law, equally amongst equals and unequally amongst unequals
is firmly rooted in the concept of equality developed by courts in this
country and in America. But any reservation or affirmative action on
economic criteria or wealth discrimination cannot be upheld under doctrine
of reasonable classification. Reservation for backward class seeks to
achieve the social purpose of sharing in services which had been
monopolised by few of the forward classes. To bridge the gap, thus created,
the affirmative actions have been upheld as the social and educational
difference between the two classes furnished reasonable basis for
classification. Same cannot be said for rich and poor. Indigence cannot be a
rational basis for classification for public employment.”
8
4.It is thus discernible that in Indra Sawhney (supra), this court ruled that
reservations under Article 16 for backward classes of citizens were limited only
to initial appointments, and did not extend to promotions. The rationale for such
a conclusion was that reservations in promotions would have a deleterious effect
on the efficiency of services: firstly, they would stifle the spirit to work amongst
the reserved candidates, and would amount to creation of a permanent separate
category. Secondly, such reservations would generate a feeling of despondence
and heartburn among general category candidates. Thirdly, reservations in
promotions would 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 of 1995.
Clause (4-A) reads as follows:
“Nothing in this article shall prevent the State from making any provision
for reservation in matters of promotion to any class or classes of posts in
the services under the State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State, are not adequately
represented 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 been enjoying 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 posts under
Article 16(4) is confined to initial appointment and cannot extend to
reservation in the matter of promotion. This ruling of the Supreme Court
will adversely affect the interests of the Scheduled Castes and the
Scheduled Tribes. Since their representation in services in the States have
9
not reached the required level, it is necessary to continue the existing
dispensation of providing reservation in promotion in the case of the
Scheduled Castes and the Scheduled Tribes. In view of the commitment
of the Government to protect the interests of the Scheduled Castes and the
Scheduled Tribes, the government has decided to continue the existing
policy of reservation in promotion for the Scheduled Castes and the
Scheduled Tribes. To carry out this it is necessary to amend Article
16 of the Constitution by inserting a new clause (4-A) in the said article to
provide for reservation in promotion for the Scheduled Castes and the
Scheduled Tribes.”
Thus, reservations in promotions were extended to members of the
Scheduled Castes and Scheduled Tribes alone.
II.HISTORY OF RESERVATIONS FOR PERSONS WITH DISABILITIES
6.In Union of India v. National Federation of the Blind
7
, this court had
reiterated the distinction between ‘vertical’ reservations for backward classes of
citizens as delineated in Indra Sawhney (supra) and ‘horizontal’ reservations for
persons with disabilities under Section 33
8
of the erstwhile Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995 (“1995 Act”), as follows:
“42. A perusal of Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] would reveal that
the ceiling of 50% reservation applies only to reservation in favour of
Other Backward Classes under Article 16(4) of the Constitution of India
whereas the reservation in favour of persons with disabilities is horizontal,
7 Union of India v. National Federation of the Blind, (2013) 10 SCC 772. See also generally – the relationship
between Section 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, elucidated in Govt. of India v. Ravi Prakash Gupta, (2010) 7 SCC 626.
8 33. Reservation of posts.—Every appropriate Government shall appoint in every establishment such
percentage of vacancies not less than three per cent for persons or class of persons with disability of which one
per cent each shall be reserved for persons suffering 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 work carried 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 the provisions of this section.
10
which is under Article 16(1) of the Constitution. In fact, this Court in the
said pronouncement has used the example of 3% reservation in favour of
persons with disabilities while dealing with the rule of 50% ceiling. Para
812 of the judgment clearly brings out that after selection and appointment
of candidates under reservation for persons with disabilities they will be
placed in the respective rosters of reserved category or open category
respectively on the basis of the category to which they belong and, thus, the
reservation for persons with disabilities 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. There are
two types of reservations, which may, for the sake of
convenience, be referred to as ‘vertical reservations’ and
‘horizontal reservations’. The reservations in favour of the
Scheduled Castes, the Scheduled Tribes and the Other
Backward Classes [under Article 16(4)] may be called vertical
reservations whereas reservations in favour of physically
handicapped [under clause (1) of Article 16] can be referred to
as horizontal reservations. Horizontal reservations cut across
the vertical reservations—what is called interlocking
reservations. To be more precise, suppose 3% of the vacancies
are reserved in favour of physically handicapped persons; this
would be a reservation relatable to clause (1) of Article 16. The
persons selected against this quota will be placed in the
appropriate category; if he belongs to SC category he will be
placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category, he
will be placed in that category by making necessary
adjustments. Even after providing for these horizontal
reservations, the percentage of reservations in favour of
backward class of citizens remains—and should remain—the
same.””
This judgment did not discuss reservations in ‘promotions’, but confined its
pronouncement to initial appointments only.
7.Rajeev Kumar Gupta v. Union of India
9
authoritatively dealt with 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:
9 Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153
11
“21. The principle laid down in Indra Sawhney [Indra Sawhney v. Union of
India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] is applicable only when the State seeks to give preferential treatment
in the matter of employment under the State to certain classes of citizens
identified to be a backward class. Article 16(4) does not disable 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, Article 16(4) is a subset of Article 16(1).] if they otherwise
deserve such treatment. However, for creating such preferential treatment
under law, consistent with the mandate of Article 16(1), the State cannot
choose any one of the factors such as caste, religion, etc. mentioned in
Article 16(1) as the basis. The basis for providing reservation for PWD is
physical disability and not any of the criteria forbidden under Article 16(1).
Therefore, the rule of no reservation in promotions as laid down in Indra
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] has clearly and
normatively no application to PWD.
(emphasis
supplied)
*****************
24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a
fine and designed balance between requirements of administration and the
imperative to provide greater opportunities to PWD. Therefore, as detailed
in the first part of our analysis, the identification exercise under Section 32
is crucial. Once a post is identified, it means that a PWD is fully capable of
discharging the functions associated with the identified post. Once found to
be so capable, reservation under Section 33 to an extent of not less than
three per cent must follow. Once the post is identified, it must be reserved
for PWD irrespective of the mode of recruitment adopted by the State for
filling up of the said post.”
8.A reference was then made to a larger bench to resolve the issue with
respect to interpretation of reservations in promotions as settled by Indra
Sawhney (supra) and Rajeev Kumar Gupta (supra). Thus, in Siddaraju v. State
of Karnataka
10
, a three-judge bench decision rendered by Nariman, J. held:
“12. After hearing the learned counsel appearing on behalf of all the
parties including the learned Additional Solicitor General, we are of the
view that the judgment of this Court cannot be faulted when it stated
that Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC
215 : 1992 SCC (L&S) Supp 482] dealt with a different problem and,
therefore, cannot be followed.”
10 Siddaraju v. State of Karnataka, (2020) 19 SCC 572.
12
9.Thereafter, in State of Kerala v. Leesamma Joseph
11
, a two-judge bench
judgment authored by Kaul, J. held in unequivocal terms that reservations in
promotions could not be denied to persons with disabilities:
“18. On examination of the aforesaid plea we find that there is merit in
what the learned Amicus Curiae contends and we are of the view that really
this issue is no more res integra in view of the judgments of this Court
in Union of India v. Ravi Prakash Gupta [Union of India v. Ravi Prakash
Gupta, (2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] and Union of
India v. National Federation of the Blind [Union of India v. National
Federation of the Blind, (2013) 10 SCC 772 : (2014) 2 SCC (L&S) 257]
opining that reservation has to be computed with reference to the total
number of vacancies in the cadre strength and no distinction can be made
between the posts to be filled by direct recruitment and by promotion. Thus,
total number of vacancies in the cadre strength would include the vacancies
to be filled in by nomination as well as by promotion. In fact, this was the
view adopted by the Bombay High Court discussed aforesaid in National
Confederation for Development of Disabled v. Union of India [National
Confederation for Development of Disabled v. Union of India, 2015 SCC
OnLine Bom 5112] with the challenge raised to the same in a SLP being
rejected in Union of India v. National Confederation for Development of
Disabled [Union of India v. National Confederation for Development of
Disabled, (2015) 13 SCC 643 : (2016) 1 SCC (L&S) 276] . We may note the
observations in Rajeev Kumar Gupta v. Union of India [Rajeev Kumar
Gupta v. Union of India, (2016) 13 SCC 153 : (2017) 2 SCC (L&S) 605] in
para 24 to the effect : (Rajeev Kumar Gupta case [Rajeev Kumar
Gupta v. Union of India, (2016) 13 SCC 153 : (2017) 2 SCC (L&S) 605] ,
SCC p. 162)
“24. … Once the post is identified, it must be reserved for PwD
irrespective of the mode of recruitment adopted by the State for
filling up of the said post.”
(emphasis
supplied)
and a direction was issued to the Government to extend 3% reservation to
PwD in all identified posts in Group A and Group B “irrespective of the
mode of filling up of such posts”.
*****************
II. Whether reservation under Section 33 of the 1995 Act is dependent
upon identification of posts as stipulated by Section 32?
21. On a plea of the learned Amicus Curiae, which we unhesitatingly
accept, there can be little doubt that it was never the intention of the
legislature that the provisions of Section 32 would be used as a tool to
frustrate the benefits of reservation under Section 33. In fact, identification
of posts for purposes of reservation had to take place immediately after the
11 State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208.
13
1995 Act. A resistance to such reservation is obvious from the delaying
tactics adopted by most of the Government authorities in truly
implementing the intent. It thus shows that sometimes it is easier to bring a
legislation into force but far more difficult to change the social mindset
which would endeavour to find ways and means to defeat the intent of the
Act enacted and Section 32 was a classic example of the same. In Union of
India v. Ravi Prakash Gupta [Union of India v. Ravi Prakash Gupta, (2010)
7 SCC 626 : (2010) 2 SCC (L&S) 448] also, this Court mandated the
identification of posts for purposes of reservation. Thus, what is required is
identification of posts in every establishment until exempted under proviso
to Section 33. No doubt the identification of the posts was a prerequisite to
appointment, but then the appointment cannot be frustrated by refusing to
comply with the prerequisite. This view was affirmed by a larger Bench of
three Judges in Union of India v. National Federation of the Blind [Union
of India v. National Federation of the Blind, (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 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 (“2016 Act”),
12
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
12 “34. Reservation. – [***] Provided that the reservation in promotion shall be in accordance with such
instructions as are issued by the appropriate Government from time to time”.
14
Sawhney (supra). I therefore hold serious reservation in its interpretation
otherwise.
11.While Indra Sawhney (supra) no doubt pertained to vertical reservations
for backward classes of citizens, this understanding of horizontal reservations
infact seeded from this very judgment.
13
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 / ex-servicemen, etc.) is not
constitutionally protected – the only exception to reservations in promotions is
SC / ST appointees, as provided under Article 16(4A).
12.Additionally, horizontal reservations, unlike their vertical counterparts,
are not rigid, but have a fluidity to them, as observed in this court’s
pronouncement in Saurav Yadav v. State of Uttar Pradesh.
14
A candidate eligible
for horizontal reservation is not confined to their vertical category. Migrations
are permissible to allow the best candidates to emerge from this interlocking
13 See, para 812 of Indra Sawhney (supra).
14 Saurav Yadav v State of Uttar Pradesh, (2021) 4 SCC 542.
15
framework of reservations. However, such a mechanism is unworkable in
promotions, where vertical and horizontal qualifiers are absent (barring those
for SC/ST candidates). The (then) 3% reservation set aside for persons 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.
13.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
(supra), 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. Nagaraj v
Union of India.
15
14.The laudable intent behind a provision such as Section 33 of the 1995
Act, and Section 34 of the 2016 Act, is undeniable. That persons with
disabilities need to be accommodated, in public service, is a given. At the same
time, this reasonable accommodation ought not to open gates for demands by
15 M. Nagaraj v Union of India, (2006) 8 SCC 212.
16
those benefitting other kinds of horizontal reservation, 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.’s judgment.
.........................................J.
[S. RAVINDRA BHAT]
NEW DELHI;
JULY 04, 2023.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.529/2023
RESERVE BANK OF INDIA & ORS. … APPELLANTS
VS.
A.K. NAIR & ORS …RESPONDENTS
WITH
CIVIL APPEAL NO.530/2023
UNION OF INDIA & ORS. … APPELLANTS
VS.
A.K. NAIR & ORS …RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
THE CHALLENGE:
1.Reserve Bank of India (hereafter ‘RBI’, for short) and the Union
of India (hereafter ‘GoI’ for short) are in appeal, by special leave,
mounting challenge to the judgment and order dated 16
th
June, 2014
passed by the High Court of Judicature at Bombay on Writ Petition
No.2753 of 2006 presented before it by the common first respondent
(hereafter ‘Mr. Nair’, for short).
2
FACTS:
2.The facts leading to these appeals reflect the grim struggle of
Mr. Nair, a person having ‘Post-Polio Paralysis of Limbs’ with 50%
disability to secure promotion to the post of Assistant Manager in
the RBI by claiming benefit envisaged by the Persons with
Disabilities (Equal Opportunity, Protection of Rights and Full
Participation) Act, 1995 (hereafter ‘the PwD Act, 1995’) as well as
various office memoranda issued from time to time by the
Department of Personnel and Training (hereafter ‘DoPT’, for short) of
the Ministry of Personnel, Public Grievances and Pensions, GoI, and
circulars issued by the RBI.
3.Mr. Nair, joined the services of the RBI, on 27
th
September,
1990 as Coin/Note Examiner, Grade–II/Clerk on a vacancy reserved
for a person with disability. In due course of time, Mr. Nair
participated in the All India Merit Test for the Panel Year 2003,
conducted sometime between 26
th
April and 3
rd
July, 2004 by the
RBI, for securing his promotion to a Class–I post. The standards fixed
for qualifying in the examination were the same for general
candidates as well as persons with disabilities. Apart from fulfilling
other conditions, Mr. Nair was required to obtain 95 (ninety-five)
marks to qualify for promotion. Results were 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
3
fulfillment of other eligibility criteria for promotion, Mr. Nair was not
considered for promotion owing to such shortfall. Since circulars
issued by the GoI contemplated condonation of short fall to the
extent of 5 (five) marks for SC/ST candidates, Mr. Nair submitted a
representation dated 18
th
December, 2004 seeking grant of benefit
of relaxation as available to him “on par with SC/ST category
candidates” and also requested to include his name in the panel of
selected candidates. By a reply dated 25
th
May, 2005, the RBI
informed Mr. Nair that there is no provision for extending grace
marks to persons with disabilities in promotional examinations.
Immediately on the next day, Mr. Nair submitted a further
representation and while inviting attention to circular dated 5
th
July,
2000 (extending reservation to physically handicapped persons in
promotions up to S.O. Grade ‘A’ in the general side where not much
of moving from the seat is involved) and the Master Circular dated
19
th
October, 2004 (hereafter ‘Master Circular’, for short) on the
subject of ‘Reservation in Recruitment and Promotions in Bank’ for
persons with disabilities, both issued by the RBI, sought remedial
action. This was followed by a spate of representations which,
however, proved abortive.
4.The pursuit to have the shortfall in marks condoned not having
been favourably considered by the RBI, thereby resulting in his non-
promotion to the post of Assistant Manager Grade - I, drove Mr. Nair
4
to knock the doors of the High Court by instituting a writ petition
seeking, inter alia, the following relief: -
“a) This Hon’ble Court be pleased to call for the records of the
case and after perusing the same be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other writ
order or direction, directing Respondents to provide relaxation of
conditions and/or providing grace marks to the candidate with
disabilities for the purpose of placing the disabled candidates in
the zone of consideration in All India Merit Test for the Panel Year
2003 in the Respondents' establishment and further be pleased to
direct the Respondents to place the Petitioner in the panel of
selected candidates for promotion in All India Merit Test for the
Panel Year 2003 conducted by the Respondents in the year 2004
and be pleased to direct the Respondents to consider the
candidature of the Petitioner for promotion to Grade A in the
Physically Handicapped Employees category.
b) The Respondents be ordered to implement the 3% Reservation
in promotion for the persons with disability in toto to all the posts
identified by the Respondents under Circular Nos.49 and 18 dated
05.07.2000 and 19.10.2004 respectively.”
5.The writ petition was contested by the RBI by filing a counter
affidavit dated 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 consolidated
all existing instructions in line with the PwD Act, 1995 and clarified
certain issues including procedural matters, it was contended that
for persons with disabilities 3 (three) per cent of vacancies in case of
direct recruitment to Groups ‘A’, ‘B’, ‘C’ and ‘D’ have to be reserved;
and (three) per cent of the vacancies in case of promotions, only to
identified Groups ‘C’ and ‘D’ posts in which the element of direct
recruitment, if any, does not exceed 75 (seventy-five) per cent, have
5
to be reserved. Further, it was contended by referring to a
clarification provided by the GoI, contained in OM dated 25
th
October, 2002, that “(T)here is no reservation for the persons with
disabilities when promotions are made to Group ‘A’ and Group ‘B’
posts”. Insofar as circular dated 5
th
July, 2000 of the RBI is
concerned, it was pleaded that instructions contained therein were
withheld and not given effect. Finally, reference was made to
paragraph 22 of the OM dated 29
th
December, 2005 providing as
follows:
“If sufficient number of persons with disabilities are not available on the
basis of the general standard to fill all the vacancies reserved for them,
candidates belonging to this category may be selected on relaxed
standard to fill up the remaining vacancies reserved for them provided
they are not found unfit for such post or posts. Thus, to the extent the
number of vacancies reserved for persons with disabilities cannot be filled
on the basis of general standards, candidates belonging to this category
may be taken by relaxing the standards to make up the deficiency in the
reserved quota subject to the fitness of these candidates for appointment
to the post/posts in question.”
6.The Division Bench of the High Court was referred to its
coordinate Bench decision in National Confederation for
Development of Disabled & Anr. vs. Union of India & Ors.
1
,
where the prayer was for issuing a mandamus to the respondents to
appoint disabled persons in terms of section 33 of the PwD Act, 1995
in Indian Administrative Service posts by promotion from the State
Civil Services or by selection from persons who hold gazetted posts
1 PIL 106 of 2010
6
in connection with the affairs of the State but are not members of
the State Civil services, as per their entitlements, retrospectively
from 1996 and to comply with the said provisions hereafter. The
decision in Govt. of India & Anr. vs. Ravi Prakash Gupta & Anr.
2
was also referred, where this Court dealt with the question of
reservation in the matter of appointment to All India Service and
while confirming the decision under challenge held that reservation
was applicable to posts in Groups ‘A’, ‘B’, ‘C’ and ‘D’. Attention of
the Division Bench was also invited to the decision in Union of
India vs. National Federation of the Blind
3
, where this Court
was of the view that “the computation of reservation for persons
with disabilities has to be computed in case of Group A, B, C and D
posts in an identical manner, viz. computing 3% reservation on total
number of vacancies in the cadre strength, which is the intention of
the legislature”. The Division Bench read the decision as laying
down the law that reservation has to be computed with reference to
total number of vacancies in the cadre strength and, therefore, no
distinction can be made between the posts to be filled in by direct
recruitment and by promotion. It was, accordingly, held that the
“total number of vacancies in the cadre strength would include the
vacancies to be filled in by nomination and vacancies to be filled in
by promotion”. Certain directions were issued by this Court in
2 (2010) 7 SCC 626
3 (2013) 10 SCC 772
7
paragraph 55, which led to issuance of a further OM dated 3
rd
December, 2013 by the DoPT modifying paragraph 6 of OM dated
29
th
December, 2005.
7.On consideration of the said decision and the modification so
made by the OM dated 3
rd
December, 2013, the High Court in
National Confederation for Development of Disabled (supra)
was of the view that the respondents would have to give benefits of
reservation to persons with disabilities in the matter of promotion to
posts in the Indian Administrative Service by applying OM dated 29
th
December, 2005 and the subsequent office memorandum consistent
with the aforesaid decision of this Court, with effect from the date of
issuance of OM dated 29
th
December, 2005.
8.Significantly, the decision in National Confederation for
Development of Disabled (supra) was the subject matter of
challenge at the instance of the GoI in a special leave petition, which
was dismissed on 12
th
September, 2014. A review petition was
thereafter filed by the GoI, which was also dismissed by an order
dated 5
th
December, 2014, on merits. Another special leave petition
that was carried by the GoI to this Court from the order dismissing
the review petition stood dismissed on 27
th
February, 2015. Thus,
insofar as the GoI is concerned, the judgment and order dated 4
th
December, 2013 in National Confederation for Development of
Disabled (supra) attained finality.
8
9.Upon consideration of the pleadings of the parties, the PwD
Act, 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 to it, the High Court in the impugned judgment and
order held as follows: -
“9. In view of the above discussion, we have no hesitation in
holding that modification made by para 5 of the OM dated 3
December 2013 to para 14 of the OM dated 29 December 2005
will apply with effect from 29 December 2005 and therefore
the respondent-Reserve Bank of India shall apply reservation
for persons with disabilities on the basis of total number of
vacancies appearing in direct recruitment quota as well as in
promotion quota in Group 'A' and Group 'B' posts respectively
with effect from 29 December 2005.
10. If on the basis of above direction, any vacancy is required
to be filled in the cadre of Asst. Manager and/or other
equivalent posts in Group 'A' or Group 'B' on or after 29
December 2005, the Reserve Bank of India shall apply
reservation policy with effect from 29 December 2005 and if as
a consequence therefore the petitioner's case is required to be
considered for such promotion, respondents-Reserve Bank of
India shall consider the petitioner's case for promotion.
11. It is clarified that this direction is only in the context of
controversy about applicability of reservation policy to
promotion and if there are other requirements under the
relevant rules, this Court may not be treated to have expressed
any opinion on the question of the petitioner satisfying such
requirements.
12. The direction given herein above shall be carried out within
a period of three months from today.”
10.It appears that while allowing the writ petition of Mr. Nair, the
Division Bench of the High Court followed the earlier view expressed
by its coordinate Bench.
9
11.Mr. Nair had applied for a review
4
of the judgment and order
dated 16
th
June, 2014 on the ground that the High Court had erred in
not clarifying the position on grace marks and in not addressing his
claim of qualification/seniority from the date of eligibility. When the
same was taken up for consideration on 31
st
October, 2014, the High
Court was informed of issuance of notice by this Court on the
petition for special leave to appeal filed by the RBI. In view thereof,
without examining the merits of the review petition, the same was
disposed of by the High Court with liberty to Mr. Nair to seek revival
after disposal of the proceedings before this Court.
BROAD OVERVIEW OF THE LAW:
12. Much water has flown under the bridge since the impugned
judgment dated 16
th
June, 2014 was rendered by the High Court. On
the legislative front, the Parliament enacted the Rights of Persons
with Disabilities Act, 2016 (hereinafter referred to as ‘the PwD Act,
2016’) repealing the PwD Act, 1995. On the judicial side,
pronouncements in Rajiv Kumar Gupta and Ors. vs. Union of
India and Ors.
5
, Siddaraju vs. State of Karnataka and ors.
6
,
and State of Kerala and Ors. vs. Leesamma Joseph
7
have seen
the light of the day. The executive, in its turn, has complied with the
directions contained in an order dated 28
th
September, 2021 of this
4 RP No. 55 of 2014
5 (2016) 13 SCC 153
6 (2020) 19 SCC 572
7 (2021) 9 SCC 208
10
Court
8
arising out of Siddaraju (supra) resulting in issuance of OM
dated 17
th
May, 2022 by the DoPT. These are undoubtedly
developments subsequent to the impugned judgment; but since
they could have a bearing on the merits of Mr. Nair’s claim that he
has unjustly been deprived of promotion to the post of Assistant
Manager, the same cannot be kept out of our consideration. Indeed,
after OM dated 17
th
May, 2022 was issued, the RBI has also issued a
circular dated December 8, 2022 conveying its decision to reserve
16 (sixteen) vacancies for persons with disabilities out of 600 (six
hundred) vacancies on the post of Assistant Manager Grade - ‘A’, to
be filled up by a departmental examination scheduled on 10
th
December, 2022.
13.The law relating to grant of equal opportunities, protection of
rights, and full participation of persons with disabilities was codified
by the PwD Act, 1995. Chapter VI of the PwD Act, 1995, titled
‘EMPLOYMENT’, containing sections 32 to 41, inter alia, mandated
identification of posts which could be reserved for persons with
disabilities for appointment, the extent of reservation and the
procedure to be followed in the matter of recruitment. Significantly,
Chapter VI did not contain any express provision mandating an
‘employer’ or an ‘establishment’ as defined in clauses (j) and (k) of
section 2, respectively, to reserve any percentage of posts for
8 M.A. 2171/2020 in Civil Appeal No.1567/2017
11
promotion to persons with disabilities serving in the feeder cadre.
However, Chapter VIII titled ‘NON-DISCRIMINATION’ in sub-section
(2) of section 47 ordained that no promotion shall be denied to a
person merely on the ground of his disability. Sections 44 to 47,
under Chapter VIII, envisaged that persons with disabilities should
not face any discrimination in any of the fields specified therein, with
section 47 particularly dealing with non-discrimination in
Government employment. It is true that sub-section (2) of section 47
does not contain any mandate requiring the employer or
establishment to make reservation in promotional posts; on the
contrary, it is a command to the employer or establishment that
merely because an employee is suffering from a disability, as
defined in section 2(i) of the PwD Act, 1995, he is not to be denied
promotion.
14.However, it is noticed that even before the PwD Act, 1995 was
enacted, OM dated 20
th
November, 1989 had been issued by the
DoPT whereby, reservations promotions (i) within Group ‘D’, (ii) from
Group ‘D’ to Group ‘C’ and (iii) within Group ‘C’ to the three
categories of ‘physically handicapped persons’, viz. the visually
handicapped, the hearing handicapped and the orthopedically
handicapped, were permissible. It was, however, clarified that each
of the three categories of physically handicapped persons would be
allowed reservation at 1 (one) per cent each and that applicability of
12
the reservation would be limited to promotions being made to those
posts that are identified as being capable of being filled/held by the
appropriate category of physically handicapped.
15.During the period intervening the advent of the PwD Act, 1995
and issuance of OM dated 29
th
December, 2005, the DoPT went on
to issue Office Memoranda dated 18
th
February, 1997, 16
th
January,
1998 and 25
th
October, 2022. We need not consider the said office
memoranda in any great detail except referring to the common
thread running through them, i.e., the DoPT sought to carve out the
benefit of reservation in promotion for persons with disabilities even
though whether there was an explicit legislative mandate to that
effect was indeed a grey area for some. Notwithstanding the same,
having regard to the objects that the PwD Act, 1995 intended to
achieve by providing equal opportunity, protection of rights and full
participation to the persons with disabilities and viewed in the light
of difficulties and inconveniences faced by them, the initiative of the
DoPT to provide for reservation in promotion for them on at least
Group ‘C’ and Group ‘D’ posts was indeed a step in the right
direction.
16.Be that as it may, mere absence of an express mandate in
Chapter VI of the PwD 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
13
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.
The proviso which permits exemption is not relevant in the present
case; hence, its effect is not considered. 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, to our mind, 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
14
of ‘promotion’. Prior to Rajiv Kumar Gupta (supra), 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 (supra) finds its resonance in
Siddaraju (supra).
17.We have noticed that the PwD 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 (supra) and the GoI
having implemented the order of this Court dated 28
th
September,
2021 noted above and issued OM dated 17
th
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.
18.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.
15
19.This is the broad overview of the position of law, as it stands
today, 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
Court erred in making the directions it did. According to him, the
circulars issued by the RBI restricted promotion of physically
handicapped persons only to Group ‘C’ posts and within Group ‘D’
posts, and did not permit reservation in promotion in Group ‘A’
posts. That apart, OM dated 29
th
December, 2005 relied on by Mr.
Nair did not extend any benefit of the nature 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 from the date of
issuance of OM dated 29
th
December, 2005, as directed by the High
Court, was not called for. He also contended that after the GoI issued
OM dated 17
th
May, 2022, the RBI has also issued the circular dated
8
th
December, 2022, whereby requisite vacancies in Group ‘A’ posts
have also been reserved for promotion of persons with disabilities.
16
This circular dated 8
th
December, 2022 contemplates promotion of
persons with disabilities upon qualifying in a departmental
examination.
21.Though Mr. Gupta did not dispute that benefit of condonation
of shortfall in marks was available for SC/ST candidates, he
submitted that the concession could not have been extended to
persons with disabilities like Mr. Nair in the absence of any policy
decision for reserving vacancies in Group – ‘A’ posts for persons like
him; hence, Mr. Nair could not have claimed any benefit flowing
therefrom.
22.Referring to an “Additional Affidavit” dated 19
th
January, 2023
filed on behalf of the RBI, Mr. Gupta contended that vide circular
dated 21
st
September, 2022, a departmental examination for
promotion of Class III employees to the post of Assistant Manager
Grade ‘A’ was scheduled on 10
th
December, 2022 and willingness
therefor was invited by 30
th
September, 2022; however, Mr. Nair
chose not to participate in such examination. Mr. Nair, it was
contended, having not offered his candidature, the RBI was disabled
to assess his performance for promotion. Mr. Gupta, thus, urged that
Mr. Nair having let go the opportunity, cannot be heard to complain;
however, if Mr. Nair wishes to participate in the promotional
exercise, when conducted next, the RBI shall consider his
candidature in terms of the extant provisions.
17
23.Mr. Gupta, thus, prayed that the appeal of the RBI could be
disposed of recording his aforesaid statement.
ARGUMENTS ON BEHALF OF THE GoI:
24.Ms. Madhavi Divan, learned Additional Solicitor General
appearing for the GoI, placed OM dated 17
th
May, 2022 and
contended that pursuant to orders of this Court made from time to
time and in particular after the order dated 28
th
September, 2021
(supra), instructions have been issued to make available reservation
in promotion for persons with disabilities from posts in Group ‘B’ to
the lowest rung in Group ‘A’, however, with the rider that reservation
in promotion shall be applicable in the cadres in which the element
of direct recruitment, if any, does not exceed 75%. She further
submitted that since there was no specific post identified for
promotional appointment in Group ‘A’ when Mr. Nair participated in
the process and also that the shortfall in marks could be condoned
only in respect of SC/ST candidates, coupled with the fact that Mr.
Nair elected to stay away from the recent promotional process, the
directions made in the impugned judgment and order that
paragraph 14 of OM dated 29
th
December, 2005, since modified by
OM dated 8
th
December, 2013, should be applied with retrospective
effect, do not call for being sustained. Accordingly, she too joined Mr.
18
Gupta in urging that the appeal of the GoI be disposed of granting
liberty to Mr. Nair to participate in the fresh process, whenever
conducted.
25.In the midst of her argument, Ms. Divan was on the verge of
expressing certain reservations about the law expounded by this
Court in Siddaraju (supra). However, the decision having become
final and the DoPT also having acted in terms thereof, we did not
consider it appropriate 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 invited our
attention to the various circulars/office memoranda issued from time
to time and the relevant decisions of this Court as well as the High
Court in matters relating to reservation of certain vacancies on
promotional posts for persons with disabilities. Relying thereon, he
contended that Mr. Nair has been given a raw deal.
27.OM dated 18
th
February, 1997 and corrigendum dated 16
th
January, 1998 were placed by Mr. Mohan. According to him, a
conjoint reading thereof would leave none in doubt that the existing
policy of reservation for SCs/STs, including for the “physically
handicapped” in promotion in all groups is applicable to all grades
and services where the extent of direct recruitment does not exceed
19
75 (seventy-five) per cent; and that the “existing policy of
reservation” would obviously include the provision for grace marks
for SCs/STs.
28.Referring to the counter affidavit of Mr. Nair filed in connection
with these appeals, Mr. Mohan invited our attention to a
communication dated 18
th
October, 2006 issued by the Banking
Division, Department of Economic Affairs, Ministry of Finance, GoI
addressed to, inter alia, the Chief General Manager, RBI on the
subject of “Concession and relaxation to persons with disabilities at
par with SCs/STs irrespective of their vertical categories”. It was
shown that on a reference received from the Commissioner of
Disabilities on the subject, it had been decided to extend concession
in examination fee and relaxation in minimum percentage of marks
to persons with disabilities at par with SCs/STs with 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 amongst all
the persons with disabilities irrespective of their vertical categories.
A request was, accordingly, made to the addressees including the
RBI to note the instructions for appropriate action.
29.Heavily relying thereon, Mr. Mohan argued that the refusal of
the RBI to treat persons with disabilities at par with SC/ST category
9 W.P.(C) No.115/1998
20
of candidates and to award grace marks as are made available to
the latter, despite the existence of the circular dated 5
th
July, 2000,
the Master Circular and the communication dated 18
th
October,
2006, amounts not only to deprivation of the rights of “Equal
Opportunity, Protection and Full Participation” guaranteed by the
provisions of the PwD Act, 1995 but also to invidious discrimination
hit by Article 14 of the Constitution.
30.Inviting our pointed attention to the decision in Leesamma
Joseph (supra), Mr. Mohan contended that this Court declined to
interfere with the order of the Kerala High Court under challenge
which reversed the decision of the Kerala Administrative Tribunal
and upheld not only the respondent’s claim for promotion, though
the initial entry of the respondent was on compassionate ground and
not on a post reserved for persons with disabilities, but did not
disturb the financial benefits received by the respondent. He also
contended that this Court even after not interfering with the
impugned order examined the issue as to whether persons with
disabilities could claim a right of promotion under the PwD Act,
1995, as such issue were likely to arise in other matters of similar
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 the
submission advanced by him on behalf of Mr. Nair that “the rights in
21
favour of disabled persons flow directly from the provisions of the
Act and the source of right is not the O.M. but the provisions of the
Act themselves; and as such the O.M. in any case can not limit the
applicability of the protection under the provisions of the Act”. Mr.
Mohan reiterated such submission before us and submitted that the
directions given by the High Court in the impugned judgment and
order do not call for any interference.
PROCEEDINGS BEFORE THIS COURT:
32.Having heard the parties on 19
th
January, 2023, we had
granted special leave to appeal and reserved judgment. In course of
hearing, Mr. Gupta had sought for leave to file a “Further Affidavit”,
which we orally permitted. Such an affidavit having been tendered
on 30
th
January, 2023, we permitted Mr. Mohan to look into its
contents and on a prayer made on behalf of Mr. Nair, we even
permitted filing of a reply by an order dated 31
st
January, 2023.
Pursuant thereto, a “Common Affidavit-in-Reply” dated 7
th
February,
2023 has been filed by Mr. Nair and taken on record.
ADDITIONAL AFFIDAVITS OF THE RBI:
33.We have read the additional affidavits filed by the RBI and Mr.
Nair after judgment on these appeals was reserved. The points that
the RBI urged in the counter affidavit filed before the High Court
have been reiterated, which we have noticed above. That apart,
22
perusal of paragraphs 3-7 of the ‘Additional Affidavit’ dated 19
th
January, 2023 and 10-13 of the ‘Further Affidavit’ dated 30
th
January,
2023 of the RBI reveal reference to issuance of instructions on
‘Reservation in promotion’ under section 34 of the PwD Act, 2016 by
the GoI in pursuance of the directions contained in the order dated
28
th
September, 2021 (supra) and further that the RBI has adopted
the same for itself vide its circular dated 08
th
December, 2022; that
considering the above instructions, in relation to the examinations
conducted for Panel Year 2022 vide circular dated 8
th
December,
2022, 16 (sixteen) vacancies were reserved for persons with
disabilities and though the last date for expression of willingness to
participate in the same was 30
th
September, 2022, Mr. Nair did not
participate; and also that the qualification for Asst. Manager Grade
‘A’ post has undergone changes and the Memorandum of Settlement
(MoS) between the RBI and the Employee’s Association has been
implemented vide revised qualification criteria w.e.f. 2013.
QUESTIONS OF LAW RAISED BY THE APPELLANTS:
34.We have noticed that in the appeals, the RBI and the GoI have
each raised 3 (three) questions of law which they claim are
substantial questions. In essence, the questions are common but
obviously differently worded and not in the same sequence. To put
the matter in the proper perspective, the appellants essentially have
sought for answers in the negative to the following questions:
23
(i)Whether the modification made by paragraph 5 of the
Office Memorandum dated 3
rd
December, 2013 to paragraph
14 of the Office Memorandum dated 29
th
December, 2005 is to
be applied retrospectively with effect from 29
th
December,
2005?
(ii) Whether the High Court was justified in holding that the RBI
has to apply reservation in promotion for persons with
disabilities in respect of Group ‘A’ and Group ‘B’ posts?
And
(iii) Whether the High Court is justified in holding that the
decision in National Confederation of Development of
Disabled (supra) is applicable to the present case?
ANALYSIS AND DECISION:
35.Regard being had to the narrative of facts leading to
presentation of these appeals, the rival contentions advanced at the
Bar on behalf of the parties and in the light of exposition of law by
this Court in the decisions referred to above in regard to rights of
persons with disabilities in employment under the appropriate
Government or in an establishment qua matters of promotion, we
are of the considered opinion that the aforesaid 3 (three) questions
have been rendered purely academic. We may briefly give our
reasons therefor.
24
36.The decision in Rajeev Kumar Gupta (supra) considered the
legality of the impugned Office Memoranda dated 18
th
February,
1997 and 29
th
December, 2005, issued by the DoPT, denying to
employees of Prasar 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 Bench decision in Indra Sawhney vs. Union of
India
10
, that there cannot be reservation in promotions to identified
posts of Groups ‘A’ and ‘B’, was overruled by observing that such
ruling arose in the context of reservations in favour of backward
classes of citizens falling within the sweep of Article 16(4) of the
Constitution. Ultimately, it was held in paragraphs 24 and 25 as
follows:
“24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a
fine and designed balance between requirements of administration and the
imperative to provide greater opportunities to PWD. Therefore, as detailed in
the first part of our analysis, the identification exercise under Section 32 is
crucial. Once a post is identified, it means that a PWD is fully capable of
discharging the functions associated with the identified post. Once found to
be so capable, reservation under Section 33 to an extent of not less than
three per cent must follow. Once the post is identified, it must be reserved for
PWD irrespective of the mode of recruitment adopted by the State for filling
up of the said post.
25. In the light of the preceding analysis, we declare the impugned
memoranda as illegal and inconsistent with the 1995 Act. We further direct
the Government to extend three per cent reservation to PWD in all identified
posts in Group A and Group B, irrespective of the mode of filling up of such
posts. This writ petition is accordingly allowed.”
10 1992 Supp (3) SCC 217
25
37. The view expressed in Rajeev Kumar Gupta (supra) was
doubted by a coordinate Bench of this Court. Opining that
preferential treatment to persons with disabilities could cover
reservation in appointment but not reservation in promotion, the
said Bench in its order dated 3
rd
February, 2017 was of the view that
the contention needs to be considered by a larger Bench.
38.Siddaraju (supra) is the larger Bench decision which has held
that the decision in Rajeev Kumar Gupta (supra) cannot be faulted
when it stated that Indra Sawhney (supra) dealt with a different
problem and cannot be followed.
39.Leesamma Joseph (supra), which is the latest in the line of
decisions on the same point, has reached similar conclusion albeit
premised on a different reasoning.
40.There is, therefore, no dearth of authority for the proposition
that the PwD Act, 1995 not only mandated reservation in
appointment but also contemplated reservation in promotion.
41.Incidentally, we have also assigned our own reason as to why
any perception and understanding of section 33 of the PwD Act,
1995 not contemplating reservation in promotion is erroneous and
fallacious.
42.Bearing in mind what has been laid down by this Court in the
cited decisions and the view taken by us (supra), our specific
26
answers to the 3 (three) questions urged by the appellants are
these. OM dated 29
th
December, 2005 having been set aside in
Rajeev Kumar Gupta (supra), the first question does not survive
consideration as to whether modification of 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 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 (emphasis
ours), and the larger Bench in Siddaraju (supra) 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 (supra) 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. We
share the view taken therein.
43.Having held thus and in the changed circumstances, we are
tasked to decide two other questions, viz.:
27
(a) whether the RBI by failing to consider Mr. Nair for
promotion, a right guaranteed by Article 16 of the Constitution,
on application of relaxed standards committed an illegality?
and
(b) provided the answer to the aforesaid question is in the
affirmative, to what extent relief can legitimately be extended
to Mr. Nair?
44.Our answers to the aforesaid questions should be prefaced by
a brief reference to the supreme law of the land. The resolve in the
Preamble to the Constitution and the provisions in Part IV thereof,
are considered 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 of the country” and the State has a duty to apply these
principles in making laws. The immediately next article commands
the State to strive to promote the welfare of the people by securing
and protecting, as effectively as it may, a social order in which
justice ~ social, economic and political ~ shall inform all the
institutions of the national life and endeavor to eliminate inequalities
in status, facilities and opportunities. Article 41 requires the State,
within the limits of its economic capacity and development, to make
effective provision for securing the right to work, inter alia, in cases
28
of disablement. In the society we live in, which is indeed class-
ridden, ‘social justice’ should mean justice to the weaker and poorer
section of the society, particularly when the people of the nation
have resolved in the Preamble to secure ‘equality of status and
opportunity’. The underlying idea is that securing justice to the
weaker and the poorer section could make them equal with the rest
of the society. In a case where the weaker section is involved in a
combat with the stronger section and the scales are even, to rise to
the challenge for securing ‘social justice’, the Courts of law ought to
lean in favour of the former so that justice is ensured. If persons with
disabilities are denied the rights and privileges conferred by law of
equal opportunities, protection of rights and full participation, inter
alia, in the field of public employment, the disservice to such
persons would inevitably be grave causing erosion of constitutional
idealism and respect for human rights apart from extreme mental
agony and pain of the deprived. Where such situations emerge, the
courts should not remain mute and dumb. No court, far less this
Court, 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 Court
was that there is no provision for reservation in promotional posts in
Grade - ‘A’ for persons with disabilities; hence, benefit of promotion
29
on a reserved vacancy could not be granted to Mr. Nair. 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 Mr. Nair. In other words, Mr.
Nair’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
(supra) and National Federation of the Blind (supra) 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 (supra), Siddaraju (supra) and
Leesamma Joseph (supra). The two big impediments in the path of
Mr. Nair, thus, stand removed by reason of a pragmatic and
reasonable interpretation of the PwD Act, 1995 by this Court.
30
46.It cannot, however, be gainsaid that when Mr. Nair 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 to
above. This being the position in law, we have no doubt that Mr. Nair
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.
47.Thus held, the remaining impediment is with regard to
condonation of shortfall of marks at par with the relaxed standards
applicable to SC/ST candidates. We now proceed to examine
whether the RBI was justified in not condoning the shortfall of 3
(three) marks pertaining to the 2003 examination taken by Mr. Nair
to enable him secure promotion.
31
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 a follow-
up step to comply with this Court’s order dated 19
th
March, 2002 in
A.I. Confederation of the Blind (supra). Even otherwise, to reach
out to persons with disabilities and grant them the facilities and
benefits that the PwD Act, 1995 envisaged, it was rather harsh to
apply standards which are applicable to general candidates to Mr.
Nair 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.
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 be judged by the same relaxed standards that are applied to
assess candidature of SC/ST candidates.
50.In such circumstances, 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 Mr. Nair on
promotion appears to us to be indefensible.
51.Question (a) is answered accordingly.
32
52.In considering question (b), concededly 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 Mr. Nair 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 (supra) was pronounced.
Should the RBI, in the circumstances, be directed to relax the
standard of assessment and grant promotion to Mr. Nair with
retrospective effect?
53.The answer to this question would necessitate looking back at
the operative directions contained in the order under challenge.
What the High Court said has been quoted above. It is noteworthy
that the High Court did not mandatorily direct grant of promotion to
Mr. Nair. The High Court’s judgment, unintendedly, was confined to
application of reservation policy. The High Court did not declare that
Mr. Nair 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 Mr. Nair satisfying such requirements.
Given such contours of the order, it was open to the RBI to consider
Mr. Nair for promotion and pass appropriate order either granting or
33
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 12
th
September, 2014. GoI also
followed suit. It was Mr. Nair 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. Given such a situation, 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 Mr. Nair’s writ petition finally. RBI might not have faced this
conundrum had the order of the High Court been complied with on
time.
54.In any event, should the RBI and GoI be worse off for
approaching this Court, given the fact that after his participation in
the 2003 examination Mr. Nair has elected to stay away from further
examinations on the pretext of pendency of proceedings before the
High Court as well as this Court, and suffer the impact of the
decisions of this Court post the impugned judgment and order? Or,
should the appeals be dismissed leaving it open to the RBI to comply
with the order of the High Court? In our view, dismissal without any
observation has the potential of generating further unnecessary
34
litigation. At the same time, though Mr. Nair 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.
55.Having regard to the materials on record before us and for
answering question (b), it is considered appropriate to invoke Article
142 of the Constitution “for doing complete justice” in the cause.
56.We direct RBI to grant notional promotion to Mr. Nair 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., 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. This
exercise must be completed within a 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)
months from date.
57.Since Mr. Nair has a couple of years for his retirement on
superannuation, it is needless to observe that in computing his
retiral benefits 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. Parties
shall bear their own costs.
35
………………………………J
(S. RAVINDRA BHAT)
New Delhi; …………………………..…J
4
th
July, 2023. (DIPANKAR DATTA)
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