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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