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

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A 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) ***************** B

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 C 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 D 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 E 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 F 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.”

9. Thereafter, in State of Kerala v. Leesamma Joseph11, a two- judge bench judgment authored by Kaul, J. held in unequivocal terms G that reservations in promotions could not be denied to persons with disabilities:

10 Siddaraju v. State of Karnataka, (2020) 19 SCC 572. 11 H State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208.

RESERVE BANK OF INDIA & ORS. v. A.K. NAIR & ORS. 819 [S. RAVINDRA BHAT, J.]

“18. On examination of the aforesaid plea we find that there A 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 B 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. C 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 D 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 E 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] , F 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) G 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”. ***************** H

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A 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 B 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 1995 Act. A resistance to such reservation is obvious from the delaying tactics adopted by most of the Government C 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. D 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 E 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, F (2013) 10 SCC 772 : (2014) 2 SCC (L&S) 257].” III. ANALYSIS

10. At the outset, it is imperative to observe that the 1995 Act did not contain a provision for reservations in ‘promotions’ for persons with disabilities appointees, unlike its successor enactment, the Rights of G 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 12 “34. Reservation. – [***] Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from H time to time”.

RESERVE BANK OF INDIA & ORS. v. A.K. NAIR & ORS. 821 [S. RAVINDRA BHAT, J.]

suffering from (i) blindness or low vision; (ii) hearing impairment; and A (iii) locomotor disability or cerebral palsy. There is no mention of this extending to promotions. In the absence of such statutory power, its inclusion in the extant provisions by this court is not beyond doubt. It cannot be said that the manner in which such reservations have been granted in promotions – even if horizontally – as a matter of right, is not contrary to the express prohibition of the same by the nine judges in Indra Sawhney (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 F 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 framework of reservations. However, such a mechanism is unworkable in promotions, where vertical and horizontal qualifiers are absent (barring those for SC/ST candidates). G 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 See, para 812 of Indra Sawhney (supra). 14 Saurav Yadav v State of Uttar Pradesh, (2021) 4 SCC 542. H

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A 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 B 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 C 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. D At the same time, this reasonable accommodation ought not to open gates for demands by those benefitting other kinds of horizontal reservation, for reservation in promotional vacancies in public services. 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. E

ORDER In view of the conclusions recorded by Hon’ble Mr. Justice Dipankar Datta (concurred to by Hon’ble Mr. Justice S.R. Bhat) the F 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., 27th September, 2006 and actual promotion from G 15th September, 2014, i.e., the last date for compliance of the order of the High Court. This exercise must be completed within a period of 2 (two) months from date. The monetary benefits accruing to Mr. Nair with effect from 15th September, 2014 shall be computed and released by 4 (four) months from date. 15 H M. Nagaraj v Union of India, (2006) 8 SCC 212.

RESERVE BANK OF INDIA & ORS. v. A.K. NAIR & ORS. 823 [S. RAVINDRA BHAT, J.]

Since Mr. Nair has a couple of years for his retirement on A superannuation, it is needless to observe that in computing is retiral benefits due regard shall be given to his p ro m o t i o n , as directed above, with effect from 27th September, 2006. The appeals stand disposed of on the above terms. Parties shall bear their own costs.” B

Nidhi Jain Appeals disposed of. (Assisted by : Tamana, LCRA)