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Judgment
The petitioner, who is stated to be a person with benchmark disability under the category “Blind” as evidenced by Ext.P1 disability certificate, seeks a reservation under the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the “Act, 2016”). The petitioner states that he joined the service of the respondent Kerala Gramin Bank as an Office Assistant on 17.11.2014 under a reservation extended as above. He further states that pursuant to Ext.P2 notification dated 05.01.2022, the promotion process for various posts in the Bank was announced, and those who were working as Office Assistants were entitled to seek promotion to the post of Junior Management (Scale – 1). As per Ext.P2 notification, 19 vacancies were reserved for Scheduled Castes (SC) and 9 for Scheduled Tribe (ST) candidates. There were two channels for promotion – the Normal Channel and the Fast Track Channel. With reference to Ext.P3 – Regional Rural Banks (Appointment and Promotion of Officers and Employees) Rules, 2010 (hereinafter referred to as the “Rules, 2010) - the petitioner states that the reservation policy of Scheduled Castes, Scheduled Tribes and “other Special category of persons” as per the guidelines of the Department of Personnel and Training issued from time to time were to apply, as provided under Rule 12 of the Rules, 2010. The petitioner further points out that the respondent Bank is also an “establishment” within the meaning of Section 2(k) of the Act, 2016, and hence, bound to comply with the mandate laid down thereunder as well as the Rules, 2010. Ext.P4 is the Office Memorandum dated 15.01.2018 issued by the Department of Personnel and Training in this regard, and paragraph 11.1 provides as follows:
“11.1.If sufficient number of candidates with benchmark disabilities candidates 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. However, this provision shall not be used to allow any relaxation in the eligibility criteria laid down for the issuance of certificate of disability.”
The petitioner further states that he participated in the selection process pursuant to Ext.P2 notification. However, since an otherwise eligible promotion was denied by the respondents herein, Ext.P5 complaint was filed before the Chief Commissioner for Persons with Disabilities. It is further pointed out that the Chief Commissioner issued Ext.P6, recommending the petitioner herein to be declared as qualified in the promotion examination, after extending “reasonable accommodation” as provided under Section 2(y) of the Act, 2016. The complaint of the petitioner is that in spite of Ext.P6 being issued as above, the eligible promotion to the post of Junior Management Officer (Scale – I) is not being extended to him. It is in such circumstances that W.P(C) No.39530 of 2022 has been presented by the petitioner, seeking appropriate directions.
The Kerala Gramin Bank has, in turn, filed W.P(C) No.10410 of 2023 seeking to challenge the Chief Commissioner’s order issued as above, producing the same as Ext.P5 in that writ petition.
Heard Smt.P.K.Nandini, the learned counsel for the petitioner in W.P(C) No.39530 of 2022, Sri.B.Ashok Shenoy, the learned counsel for the Kerala Gramin Bank, the petitioner in W.P(C) No.10410 of 2023, as well as Sri.Dayasindhu Shreehari N.S., the learned Senior Panel Counsel for the Union of India.
Smt.Nandhini, the learned counsel for the petitioner, would submit that:
The provisions of Section 34 of the Act, 2016 requires every Government establishment to extend reservation in the manner provided therein. The petitioner falls under the category reserved for “blindness and low vision”, which is 1% of the total number of vacancies.
Rule 12 of the Rules, 2010, read along with Ext.P4 Office Memorandum, provides for extending relaxation of the standard of suitability.
The Chief Commissioner has found the petitioner entitled to be extended the benefits claimed as above through Ext.P6 proceedings.
The Apex Court in State of Kerala v. Leelamma Joseph [(2021) 9 SCC 208] has found that even with respect to promotion, the benefits under the Act, 2016, require to be extended.
The post of Junior Management (Scale-I) is identified as entitled to be extended reservation under the Act, 2016, as clarified by the Union of India in their counter affidavit filed before this Court. She also relies on Ext.P4 Office Memorandum dated 15.01.2018 in this regard.
Per contra, Sri.Shenoy, the learned counsel, would contend that:
The Kerala Gramin Bank is governed by the provisions of the Regional Rural Banks Act, 1976 (hereinafter referred to as the Act, 1976). The method of appointment of staff in a Regional Rural Bank has been specifically laid down under Section 17 of the Act, 1976.
He relies on Section 32 of the Act, 1976, to contend that the provisions of the Act, 2016, would not have any application.
Ext.P7 is issued only during May, 2022 and would not have any application as regards the selection process initiated pursuant to Ext.P1 on 05.01.2022.
A separate method of appointment as regards the appointment to the post of Junior Management (Scale-I) is provided with minimum relaxation in eligibility criteria as prescribed in the Rules, 2010.
Sri.Dayasindhu Shreehari, the learned Senior Panel Counsel, relied on the counter affidavit dated 11.02.2025 and submitted that the Central Government is of the view that Regional Rural Banks (RRBs), such as Kerala Gramin Bank, are required to extend reservation to persons with disabilities even in matters of promotion.
I have considered the rival contentions and the connected records.
The facts are not in dispute. The fact that the petitioner is a person with benchmark disability, as certified by Ext.P1, is not in dispute. The fact that the petitioner was also entitled to be considered for promotion under Ext.P2 notification to the post of Junior Management Officer (Scale – I) is also not in dispute. The fact that the petitioner participated in the selection process but was not considered for promotion is also not in dispute. It is in such circumstances, the petitioner approached the Chief Commissioner for Persons with Disabilities by filing a complaint, pursuant to which, the Chief Commissioner for Persons with Disabilities issued an order, produced as Ext.P6 in W.P(C) No.39530 of 2022. As per the said order, the stand of the respondent Bank is that the petitioner sought promotion under the "Fast Track Channel"; however, he did not secure the minimum qualifying marks of 60, as recorded therein. The fact that the petitioner obtained 48.47 marks out of 100 is also recorded therein. It is in the afore circumstances, the Chief Commissioner relied on the provisions of Section 2(y) of the Act, 2016, directing the Bank to relax the standard of suitability and declare the petitioner qualified in the promotion examination.
The Bank, as noticed earlier, raises the contention that the method of appointment as regards the Bank has been specifically laid down under Section 17 of the Act, 1976, and as provided under Section 32 thereof, the Act, 2016, would have no application. True, the method of appointment of staff in a Regional Rural Bank is laid down under Section 17. However, the question whether the provisions of the Act, 2016 are excluded requires consideration in the light of Section 32 of the Act, 1976, which reads as under:
“32. Act to override the provisions of other
laws - The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, express or implied, or in any instrument having effect by virtue of any law other than this Act, and notwithstanding any custom or usage to the contrary.”
(Underlining supplied)
Thus, Section 32 of the Act, 1976, only provides for overriding the provisions of other laws “for the time being in force”. In other words, the question of exclusion arises only with respect to laws which were in existence as on the date of coming into force of the Act, 1976 – 26.09.1975. Admittedly, the petitioner in W.P.(C) No. 39530 of 2022 seeks to rely on the provisions of the Act, 2016, which were not operational at the time. However, the Apex Court in Management of M. C. D v. Prem Chand Gupta and Another [AIR 2000 SC 454], construing the phrase “rules for the time being in force”, rejected an argument that only those rules in force at that time alone would apply, holding that rules in force from time to time would apply.
At the same time, Section 96 of the Act, 2016, reads as follows:
“96. Application of other laws not barred-
The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.”
Thus, the Parliament has categorically provided that the provisions of the Act, 2016, would be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, even on the face of Section 32 of the Act, 1976, the benefit under the Act, 2016, would be available to the petitioner. This is especially so, since the Apex Court, with reference to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short “ the Act, 1995”), has found that the legislation is a beneficial one and hence the full effects are required to be given. The Apex Court in Kunal Singh v. Union of India and Another[(2003) 4 SCC 524], though with reference to the provisions of Section 47 of the Act, 1995, taking note of the provisions of Section 72 of that Act, which were pari materia with Section 96 of the Act, 2016, has found as under:-
“11.We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pension Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further, Section 72 of the Act also supports the case of the appellant, which reads:
"72. Act to be in addition to and not in derogation of any other law. - The provisions of
this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities."
Therefore, in the light of Section 96 of the Act, 2016, the petitioner requires to be extended the full benefits provided thereunder.
The claim raised as above requires to be considered also with reference to Ext.P4 Office Memorandum referred to above. To the same effect is the Office Memorandum at Ext.P7 dated 17.05.2022. Ext.P7 was issued taking note of the directives of the Apex Court in Civil Appeal No.1567 of 2017 regarding the requirement to extend reservation in promotion qua the Act, 2016. Paragraph 13 of Ext.P7 is also more or less in tune with the provisions of Ext.P4 Office Memorandum. Again, the Office Memorandum at Ext. R5(a) has also been issued, providing for the granting of notional benefits of reservation and promotion to persons with disabilities for the period from 30.06.2016 onwards until the issuance of the Office Memorandum at Ext.P7.
In the light of the afore also, I am of the opinion that the claim made by the petitioner in W.P.(C) No.39530 of 2022 has been rightly accepted by the Commissioner for Persons with Disabilities. The Apex Court in Leelamma Joseph (supra) has also found that reservation to persons with disabilities, if restricted to the initial stage of induction in service alone, without extending it for promotions, would be a negation of the legislative mandate.
In such circumstances, I am of the opinion that the challenge against the order of the Chief Commissioner for Persons with Disabilities at the instance of the Bank in W.P.(C) No.10410 of 2023 does not require to be accepted.
On account of the afore finding, I am of the opinion that the Bank requires to act based on the orders issued by the Chief Commissioner as prayed for by the petitioner in W.P.(C) No.39530 of 2022.
Resultantly, these writ petitions would stand ordered as under:
W.P.(C) No.39530 of 2022 would stand allowed, directing the respondent Bank therein to implement the recommendations of the Chief Commissioner for Persons with Disabilities, contained in Ext.P6, forthwith.
W.P.(C) No.10410 of 2023 would stand dismissed.
APPENDIX OF WP(C) NO.10410 OF 2023
PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF NOTIFICATION DATED 05.01.2022 ISSUED BY THE PETITIONER.
EXHIBIT P2 TRUE COPY OF RELEVANT PORTION OF REGIONAL RURAL BANKS (APPOINTMENT OF OFFICERS AND EMPLOYEES) RULES 2010
EXHIBIT P3 TRUE COPY OF COMPLAINT DATED NIL SUBMITTED BY 2ND RESPONDENT TO 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF LETTER NO.9/KGB/HRW/RC/39/2022 DATED 18.05.2022 SUBMITTED BY PETITIONER TO 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF ORDER DATED 02.08.2022 IN CASE NO.13186/1021/2021 OF THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF OFFICE MEMORANDUM DATED 15.01.2018 OF GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, NEW DELHI
EXHIBIT P7 TRUE COPY OF STATEMENT DATED 12.10.2022 FILED BY PETITIONER BEFORE THE 1ST RESPONDENT IN CASE NO.13186/1021/2021
APPENDIX OF WP(C) NO.39530 OF 2022
PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD.
EXHIBIT P2 TRUE COPY OF NOTIFICATION DATED 05-01-2022 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF RELEVANT PORTION OF REGIONAL RURAL BANKS RULES 2010 ISSUED BY THE MINISTRY OF FINANCE.
EXHIBIT P4 TRUE COPY OF OM DATED 15-01-2018 ISSUED BY DEPARTMENT OF PERSONNEL AND TRAINING (DOPT).
EXHIBIT P5 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES.
EXHIBIT P6 TRUE COPY OF ORDER ISSUED BY THE CHIEF COMMISSIONER ON 02-08-2022.
EXHIBIT P7 TRUE COPY OF OM NO.36012/1/2020 ESTT. DATED 17-05-2022
RESPONDENTS’ EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF LETTER NO.9/KGB/HRW/RC/39/2022 DATED 18.05.2022 SUBMITTED BY 1ST RESPONDENT TO THE CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES (DIVYANGJAN)
EXHIBIT R1(B) TRUE COPY OF STATEMENT DATED 12.10.2022 FILED BY 1ST RESPONDENT BEFORE THE CHIEF COMMISSION FOR PERSONS WITH DISABILITIES (DIVYANGJAN) IN CASE NO.13186 OF 2021
EXHIBIT R5(A) A TRUE COPY OF THE O.M NO. 36012-1-2020-ESTT -RES-II-DATED 09.10.2024
EXHIBIT R5(B) A TRUE COPY OF THE LETTER NO 3-1-2021-WELFARE DATED 12.01.2024
EXHIBIT R5(C) A TRUE COPY OF THE LETTER NO. F.N.8-5-2024-RRB DATED 10.01.2025
EXHIBIT R5(D) A TRUE COPY OF THE O.M. NO. 19-04-2017-WELFARE, DFS DATED 06.12.2017