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

Citation: [2023] 10 S.C.R. 775 · Decided: 04-07-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Disposed off

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Judgment (excerpt)

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RESERVE BANK OF INDIA & ORS.
v.
A.K. NAIR & ORS.
(Civil Appeal No. 529 of 2023)
JULY 04, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Persons with Disabilities (Equal Opportunity, Protection of
Rights and Full Participation) Act, 1995 – s. 33 – Rights of Persons
with Disabilities Act, 2016 – s. 34 – Reservation in promotion for
person with disabilities – Bank employee having post polio paralysis
of limbs with 50% disability – Appeared for All India Merit Test, to
secure promotion to Class I post, however, fell short of qualifying
marks by three marks – Representation for condonation of short
fall of marks, on par with SC/ST category but not considered – Writ
petition by the employee – High Court directed the bank to apply
reservation for persons with disabilities on the basis of total number
of vacancies appearing in direct recruitment quota as well as in
promotion quota in Group ‘A’ and Group ‘B’ posts respectively –
Review petition filed by the employee since the High Court did not
clarify the position on grace marks and his claim of qualification/
seniority from the date of eligibility – Disposed of, without examining
the merits – Held: PwD Act, 1995 not only mandated reservation in
appointment but also contemplated reservation in promotion – PwD
Act, 1995 did not contain any express provision mandating
reservation of posts for promotion to persons with disabilities serving
in the feeder cadre though it is ordained that no promotion shall be
denied to a person merely on the ground of his disability – Mere
absence of an express mandate in requiring reservation in promotion
for persons with disabilities could not have been construed as not
obliging the appropriate Government not to keep reserved vacancies
on promotional posts – On facts, it was harsh to apply standards
which are applicable to general candidates to the employee while
he competed with such general candidates for securing his
promotion – Bank ought to have taken an informed decision in this
regard commensurate with the aspirations of persons with disabilities
– Omission or failure of the Bank in condoning the shortfall in
marks coupled with the neglect to identify a Group ‘A’ post suitable
[2023] 10 S.C.R. 775 : 2023 INSC 613
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
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 inter

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