Judiciary as the State ..



          The scrutiny of the issue as to whether the High Court is a State within the meaning of Article 12 of the Indian Constitution attracted my attention for reading the judgment discussed herein. It’s strenuous task for any legal expert to give exact scope and meaning of the term ‘State’ defined under Article 12 of the Constitution. Here I have no intention to revisit all judicial pronouncements involving different tests, meanings and interpretations in relation to the State.

          I have simply attempted to put down certain things which were scrutinized by two judges bench of The High Court of Judicature of Bombay in the recent case of National Federation of the Blind Maharashtra and Anr. Vs. The High Court of Judicature of Bombay1. With this petition, one more Public Interest Litigation was clubbed and decided by the Hon’ble High Court, which was transferred from Aurangabad Bench. Factual background giving rise to these petitions had arisen out of an advertisement (for short the said advertisement) which was issued by Hon’ble Bombay High Court for filling up posts of Stenographer, Junior clerk and Peon in various District Courts in the State of Maharashtra. Said recruitment drive was later stayed by an interim order of Hon’ble Bombay High Court.

          Both the petitioner contended that, the visually impaired candidates had 1% reservation as per the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act of 1995) which was not provided in the said advertisement. It is pertinent to mention here that Respondent provided reservation for hearing impaired (1%) and for one leg affected persons (1%) but no provision was made for the visually impaired persons. It was contended by the petitioner that High Court on its administrative side is a State. This is now undisputed, as there are various judicial pronouncements of Apex Court in this regard. Also the petitioner submitted that it was decided in judges meeting held during 2004 that the Act of 1995 be made applicable to appointments in Class-III and Class-IV services. Notification in furtherance of the said meeting was also issued in exercise of powers conferred by Article 229 of the Constitution.

          Although it seems very clean and simple till this point, what made things more complicated and interesting is the new enactment of 2016 i.e. The Rights of Persons with Disabilities Act, 2016 (for short the Act of 2016). It was contended by the respondent that the term ‘government establishment’ as defined under Section 2(k) of the Act of 2016 does not include Courts. Also it was contended that the Act of 2016 has not been made applicable to judicial services. Decision of applicability was taken in respect of the Act of 1995 and not in respect of the Act of 2016. Hence now it is up to Bombay High Court administration as to whether make the Act of 2016 applicable to the judicial services or not.

        Advocate General2 submitted that no writ of mandamus could lie against the Chief Justice to legislate and frame rules under Article 229, to include reservations3. But it was also submitted that even under the Constitution the power of appointment granted to the Chief Justice under Article 229(1) is subject to Article 16(1).4
          
        On the contrary, petitioner cited the preamble of the Act of 2016, which includes principles for empowerment of persons with disabilities viz. non-discrimination, equality of opportunity, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities as part of human diversity and humanity, etc. Section 33 of the Act of 2016 was also cited which provides for identification of the posts. It was contended that no proper identification was made before publishing the said advertisement. On humanitarian ground it was contended that the Act of 2016 is a piece of social welfare legislation and hence equal opportunity cannot be denied in the matter of public employment.

          While deciding the petition, Hon’ble Court observed that provisions of the Act of 2016 must be construed liberally. Reliance was placed on the statement of objects and reasons of the Act of 2016 and the view expressed by the Apex Court in the case of National Federation of the Blind and Justice Sunanda Bhandare Foundation5. It was observed that the Act of 2016, being a piece of social welfare legislation, which confers rights on physically handicapped persons, must be implemented in its letter and spirit. This reiterates that our Courts are the sentinel of rights of  disabled persons.

        Many posts are vacant in the Courts and hence cancelling and re-starting whole recruitment process would have caused delay. Various applications in relation to said recruitment were already submitted. Hence a balanced solution was needed. Here, we find that solution given by Advocate General in his submission was accepted by the Hon’ble High Court. Advocate General had submitted that the mode adopted in the case of C.G. Govindan vs. State of Gujarat6 may be adopted by allowing the present recruitment process to continue while the High Court on administrative side takes appropriate decision and identifies posts and by keeping reservation for persons with disabilities, initiate fresh recruitment process to fill in strictly in terms of the Act of 2016.

        Ultimately Hon’ble High Court judiciously ruled that recruitment process is allowed to be continued, subject to condition that, respondent should not fill up 4% posts which are required to be reserved under the Act of 2016 for which fresh recruitment drive be taken at the  earliest.

       This judgment is certainly an example of the erudite dictum maintaining proper balance. This is the progressive step taken in field of the judicial pronouncements which has allowed liberal construction of the statute eying welfare of the disabled persons.

1. WP(L) No. 1137/2018 with PIL No. 72/2018
2. State of Maharashtra was made party in the PIL No. 72/2018
3. Shamrao Tamgade vs. State of Maharashtra:2006 (6) Mh.L.J.(FB) 524
4. Renu vs. District and Sessions Judge, Tiz Hazari : (2014) 14 SCC 50
5. Sunanda Bhandare Foundation vs. Union of India and anr. : (2017) 14
     SCC 1)
6. (1998) 7 SCC 625


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