New Delhi: An RBI employee with a 50 per cent disability fighting a long and hard battle for his rights finally got some relief as the Supreme Court invoked the Constitution to help him get the service benefit he has been seeking since 2006.
A.K. Nair, who has ‘Post-Polio Paralysis of Limbs’ with 50% disability and is superannuating in a couple of years, fought a grim struggle for nearly two decades to secure promotion to the post of assistant manager in the RBI by claiming the benefit envisaged by the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995.
Nair had fallen short by three marks to qualify for the promotion. Earlier this month, the Supreme Court invoked Article 142 of the Constitution directing RBI to extend the benefit of reservation in promotion to Nair. The apex court said when 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.
A Bench comprising Justices S Ravindra Bhat and Dipankar Datta granted notional promotion to Nair from the date of presentation of his writ petition before the Bombay High Court, September 2006, and actual promotion from the last date for compliance with the order of the High Court, September 15, 2014. Justices Bhat and Datta wrote separate but concurring judgments.
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Justice Datta said the underlying idea is that securing justice for 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”, he said.
Justice Datta said if persons with disabilities are denied the rights and privileges conferred by the law of equal opportunities, 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”, said Justice Datta. The top court said it has no doubt that 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.
“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”, said the top court.
It further added that RBI, as a model employer, ought to have taken an informed decision in this regard commensurate with the aspirations of persons with disabilities. Nair, joined the services of the RBI on 27th September 1990 as Coin/Note Examiner, Grade–II/Clerk on a vacancy reserved for a person with disability.
He participated in the All India Merit Test for the Panel Year 2003, conducted sometime between 26th April and 3rd 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.
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Apart from fulfilling other conditions, Nair was required to obtain 95 (ninety-five) marks to qualify for promotion. Results were declared on 19th October 2004. Having obtained 92 (ninety-two) marks, he fell short of the qualifying marks by only three marks.
Nair submitted a representation on 18th December, 2004 seeking a 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. However, RBI informed him that there is no provision for extending grace marks to persons with disabilities in promotional examinations.
The top court noted that there is no dearth of authority for the proposition that the PwD Act, 1995 not only mandated reservation in appointment but also contemplated reservation in promotion. Justice Datta said the exercise of notional promotion "must be completed within a period of 2 months from the date and the monetary benefits accruing to Nair with effect from 15th September 2014 shall be computed and released by 4 months from date".
“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 27th September 2006”, said the top court.
