Supreme Court Directs Notional Promotion for Disabled Employee: RBI vs. A.K. Nair (2023)

Date of the Judgment: 4th July 2023

Citation: 2023 INSC 613

Judges: S. Ravindra Bhat, J., Dipankar Datta, J.

Can an employer deny promotion to a disabled employee based on a shortfall in qualifying marks, especially when relaxations are provided to other reserved categories? The Supreme Court of India recently addressed this critical issue in a case involving the Reserve Bank of India (RBI) and one of its employees, A.K. Nair. The court examined the rights of persons with disabilities in promotions and whether they should receive similar relaxations in standards as Scheduled Caste (SC) and Scheduled Tribe (ST) candidates. This judgment clarifies the obligations of employers towards disabled employees and ensures equal opportunities in career advancement. The bench consisted of Justices S. Ravindra Bhat and Dipankar Datta, with Justice Datta writing the main judgment and Justice Bhat adding a concurring opinion.

Case Background

A.K. Nair, who has a 50% disability due to Post-Polio Paralysis of Limbs, joined the Reserve Bank of India (RBI) on September 27, 1990, as a Coin/Note Examiner, Grade–II/Clerk, on a vacancy reserved for a person with a disability. In 2004, he appeared for the All India Merit Test for promotion to a Class-I post of Assistant Manager. The qualifying mark was 95, and Nair scored 92, falling short by three marks. Despite fulfilling other criteria, he was not promoted. Nair made several representations seeking relaxation of the qualifying marks, similar to the relaxation available for SC/ST candidates. The RBI rejected these requests, stating there was no provision for grace marks for disabled persons in promotional exams. This led Nair to file a writ petition in the Bombay High Court.

Timeline

Course of Proceedings

The Bombay High Court, after reviewing the case and referring to previous decisions, held that the RBI should apply reservation for persons with disabilities in both direct recruitment and promotion quotas for Group ‘A’ and Group ‘B’ posts, effective from December 29, 2005. The High Court directed the RBI to consider Nair’s case for promotion if vacancies were available. The RBI and the Union of India then appealed to the Supreme Court against this decision. The High Court’s decision was based on the interpretation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and various office memorandums issued by the Department of Personnel and Training (DoPT).

Legal Framework

The core of the legal framework in this case is the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PwD Act, 1995). Section 33 of the PwD Act, 1995, mandates that 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. The Act aims to provide equal opportunities, protect the rights, and ensure full participation of persons with disabilities. The Rights of Persons with Disabilities Act, 2016 (PwD Act, 2016), replaced the 1995 Act and explicitly allows for reservations in promotions. Additionally, Article 16 of the Constitution of India guarantees equality of opportunity in matters of public employment. The Supreme Court also considered various office memorandums issued by the Department of Personnel and Training (DoPT) regarding reservations for persons with disabilities.

Relevant legal provisions include:

• Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: “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:”
• Section 34 of the Rights of Persons with Disabilities Act, 2016: “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”.
• Article 16 of the Constitution of India: Guarantees equality of opportunity in matters of public employment.

Arguments

Arguments on behalf of the RBI:

• The RBI argued that its circulars only allowed promotion of physically handicapped persons to Group ‘C’ and ‘D’ posts, not Group ‘A’ posts.
• They contended that the Office Memorandum (OM) dated December 29, 2005, did not extend the benefit of relaxation in standards to persons with disabilities for Group ‘A’ posts.
• The RBI stated that A.K. Nair did not participate in the departmental examination conducted in 2022, and thus, his case could not be considered for promotion.
• They argued that there was no policy decision to reserve vacancies in Group ‘A’ posts for persons with disabilities when Nair took the exam.

Arguments on behalf of the GoI:

• The GoI argued that while they have issued instructions to reserve promotions for persons with disabilities in Group ‘B’ to the lowest rung in Group ‘A’, this is only applicable if direct recruitment does not exceed 75%.
• They contended that there was no specific post identified for promotional appointment in Group ‘A’ when Nair participated in the process.
• They stated that the shortfall in marks could only be condoned for SC/ST candidates, not for persons with disabilities.
• The GoI submitted that since Nair did not appear for the 2022 departmental examination, he cannot claim promotion.

Arguments on behalf of A.K. Nair:

• Nair argued that various circulars and office memorandums show that the policy of reservation for SCs/STs, including grace marks, should also apply to persons with disabilities.
• He cited a communication from the Ministry of Finance that extended concessions in examination fees and relaxation in minimum percentage of marks to persons with disabilities at par with SCs/STs.
• He contended that the refusal to treat persons with disabilities at par with SC/ST candidates and to award grace marks is a violation of the PwD Act, 1995, and Article 14 of the Constitution.
• Nair relied on the judgment in State of Kerala v. Leesamma Joseph, arguing that persons with disabilities have a right to promotion.
• He argued that the rights of disabled persons flow directly from the provisions of the Act and not just from Office Memorandums.

[TABLE] of Submissions

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the modification made by paragraph 5 of the Office Memorandum dated 3rd December, 2013, to paragraph 14 of the Office Memorandum dated 29th December, 2005, is to be applied retrospectively with effect from 29th December, 2005?
2. 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?
3. Whether the High Court was justified in holding that the decision in National Confederation of Development of Disabled is applicable to the present case?
4. Whether the RBI, by failing to consider Mr. Nair for promotion on application of relaxed standards, committed an illegality?
5. If the answer to the above question is in the affirmative, to what extent can relief be extended to Mr. Nair?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Cases:

• General Manager, S. Rly. v. Rangachari, (1962) 2 SCR 586: Held that reservations in promotions were permissible.
• State of Kerala v N.M. Thomas, (1976) 2 SCC 310: Interpreted Article 16(4) not as an exception but as an extension of Article 16(1).
• Indra Sawhney v Union of India, 1992 Supp (3) SCC 217: Held that reservations in promotions were impermissible under Article 16.
• Union of India v. National Federation of the Blind, (2013) 10 SCC 772: Reiterated the distinction between vertical and horizontal reservations.
• Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153: Held that the rule of no reservation in promotions does not apply to PwD.
• Siddaraju v. State of Karnataka, (2020) 19 SCC 572: Affirmed the view in Rajeev Kumar Gupta.
• State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208: Held that reservations in promotions cannot be denied to persons with disabilities.
• Saurav Yadav v State of Uttar Pradesh, (2021) 4 SCC 542: Discussed the fluidity of horizontal reservations.
• M. Nagaraj v Union of India, (2006) 8 SCC 212: Upheld the amendment to the Constitution recognizing that ‘carry forward’ vacancies can exceed the 50% limit in promotional vacancies.
• Govt. of India & Anr. vs. Ravi Prakash Gupta & Anr., (2010) 7 SCC 626: Dealt with the question of reservation in the matter of appointment to All India Service and held that reservation was applicable to posts in Groups ‘A’, ‘B’, ‘C’ and ‘D’.

Statutes:

• The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: The primary legislation providing for rights and reservations for persons with disabilities.
• The Rights of Persons with Disabilities Act, 2016: The successor enactment to the 1995 Act, which explicitly enables reservations in promotions.
• Article 16 of the Constitution of India: Guarantees equality of opportunity in matters of public employment.

[TABLE] of Authorities

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• General Manager, S. Rly. v. Rangachari was overruled on the point of reservation in promotions by Indra Sawhney.
• State of Kerala v N.M. Thomas was used to explain the scope of Article 16(4) as an extension of Article 16(1).
• Indra Sawhney v Union of India was distinguished, as it dealt with reservations for backward classes and not PwD.
• Union of India v. National Federation of the Blind was used to reiterate the distinction between vertical and horizontal reservations.
• Rajeev Kumar Gupta v. Union of India was followed, holding that the rule of no reservation in promotions does not apply to PwD.
• Siddaraju v. State of Karnataka was used to affirm the view in Rajeev Kumar Gupta.
• State of Kerala v. Leesamma Joseph was followed, holding that reservations in promotions cannot be denied to persons with disabilities.
• Saurav Yadav v State of Uttar Pradesh was used to discuss the fluidity of horizontal reservations.
• M. Nagaraj v Union of India was used to uphold the amendment to the Constitution recognizing that ‘carry forward’ vacancies can exceed the 50% limit in promotional vacancies.
• Govt. of India & Anr. vs. Ravi Prakash Gupta & Anr. was used to confirm that reservation was applicable to posts in Groups ‘A’, ‘B’, ‘C’ and ‘D’.
• The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was interpreted to mandate reservation in both appointment and promotion.
• The Rights of Persons with Disabilities Act, 2016 was interpreted to explicitly enable reservations in promotions.
• Article 16 of the Constitution of India was used as the basis for guaranteeing equality of opportunity in matters of public employment.

What weighed in the mind of the Court?

The Supreme Court emphasized the need for social justice and equality for persons with disabilities. The court noted that the Preamble to the Constitution promises social justice, and the Directive Principles of State Policy require the State to promote the welfare of the people and eliminate inequalities. The court also highlighted that denying rights to persons with disabilities would erode constitutional idealism and human rights. The court observed that the RBI, as a model employer, should have taken an informed decision commensurate with the aspirations of persons with disabilities.

[TABLE] of Sentiment Analysis of Reasons

Fact:Law Ratio

Fact: 40% (Consideration of the factual aspects of the case, such as Nair’s disability and his non-promotion)

Law: 60% (Consideration of legal provisions, precedents, and constitutional principles)

The court’s reasoning was primarily driven by legal considerations, with a significant emphasis on the constitutional mandate for equality and social justice.

Logical Reasoning:

Judgment

The Supreme Court held that the RBI’s failure to consider Mr. Nair for promotion by not applying relaxed standards was indefensible. The court noted that the PwD Act, 1995, mandates reservation in both appointment and promotion. The court also observed that the interpretation of a law relates back to the date of the law itself, meaning that Mr. Nair had a statutory right to claim reservation in promotional appointment in Group ‘A’ posts all along.

The court stated that: “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 court also noted: “The underlying idea is that securing justice to the weaker and the poorer section could make them equal with the rest of the society.”

The court further added: “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.”

The court directed the RBI to grant notional promotion to Mr. Nair on the post of Assistant Manager Grade – ‘A’, effective from September 27, 2006 (the date of the writ petition), and actual promotion from September 15, 2014 (the last date for compliance of the High Court order). The court also directed that the monetary benefits be computed and released within four months, and that his retiral benefits should be calculated considering his promotion from 2006.

The court’s decision was unanimous, with Justice Bhat adding a concurring opinion emphasizing the need for 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.

Key Takeaways

The Supreme Court’s judgment in RBI vs. A.K. Nair is a landmark ruling that reinforces the rights of persons with disabilities in the context of employment. Key takeaways from the judgment include:

• Affirmation of Rights: The court affirmed that persons with disabilities have a right to reservation in promotions, not just in direct recruitment.
• Equal Treatment: Persons with disabilities are entitled to the same relaxations in standards as SC/ST candidates in promotional exams.
• Interpretation of Law: The court clarified that the interpretation of a law relates back to the date of the law itself, ensuring that rights under the PwD Act, 1995, are applied from the date of the Act.
• Social Justice: The judgment underscores the constitutional mandate for social justice and equality, particularly for marginalized groups like persons with disabilities.
• Model Employer Responsibility: Public sector employers are expected to act as model employers, ensuring that their actions align with the aspirations of persons with disabilities.
• Impact on Disability Rights: This judgment has a significant impact on disability rights, ensuring that persons with disabilities are not disadvantaged in their career progression and are provided with equal opportunities for advancement.

This ruling sets a precedent for future cases and serves as a reminder that employers must adhere to the principles of equality and social justice in their treatment of persons with disabilities.