High Court While Dealing With Their Employees Or Acting In Administrative Capacity, Are “State” Within Art. 12: Bombay HC [Read Judgment]

High Court is subordinate to none but constitutional philosophy to be followed in making recruitment, said the Bench.The Bombay High Court has held Courts, while dealing with their employees or acting in other matters purely in administrative capacity, fall within the definition of State within the meaning of Article 12 of the Constitution of India.In light of various apex court judgments, a bench of Justice GS Kulkarni and Justice Naresh H Patil held: “…in accordance with such judgments holding that the judgments of the High Court and the Supreme Court cannot be subjected to writ jurisdiction and for want of requisite governmental control, judiciary cannot be a State under Article 12, we also hold that while acting on the judicial side the courts are not included in the definition of the State.“Only when they deal with their employees or act in other matters purely in an administrative capacity, the courts may fall within the definition of the State for attracting writ jurisdiction against their administrative actions only. In our view, such a contextual interpretation must be preferred because it shall promote justice, especially through impartial adjudication in matters of protection of fundamental rights governed by Part III of the Constitution.”The bench said so while hearing two petitions challenging the advertisement issued by the high court for posts of stenographers, clerks in the courts in Maharashtra in March wherein reservation had not been provided for disabled in consonance with the Right of Persons with Disabilities Act, 2016.While refusing to stall the entire recruitment process in view of lakhs of applications already received, the division bench ordered that the high court shall keep 4% seats/posts vacant in the subject recruitment drive and these seats shall be filled in after the respondent high court takes a decision on the administrative side on identification of posts.HC subordinate to none but employment be made in consonance with Constitutional philosophyWhile holding that the courts are “State”, the bench added, “In today's system, daily labourers and casual labourers have been conveniently introduced which are followed by attempts to regularize them at a subsequent stage. Therefore, most of the times the issue raised is about the procedure adopted for making appointments indicating an improper exercise of discretion even when the rules specify a particular mode to be adopted. There can be no doubt that the employment whether the Class IV, Class III, Class II or any other class in the High Court or courts subordinate to it falls within the definition of “public employment”. Such an employment, therefore, has to be made under rules and under orders of the competent authority”.“We would like to make it clear that the High Court is a constitutional and an autonomous authority subordinate to none. Therefore, nobody can undermine the constitutional authority of the High Court, and therefore the purpose to hear this case is only to advise the High Court that it its rules are not in consonance with the philosophy of our Constitution then the same may be modified and no appointment in contravention thereof should be made. It is necessary that there is strict compliance with appropriate rules and the employer is bound to adhere to the norms of Articles 14 and 16 of the Constitution before making any recruitment.”The bench was hearing two petitions – The National Federation of the Blind, Maharashtra and Anr vs The High Court of Judicature of Bombay and the other petition moved by Sachin Bhaurao Chavan which was transferred from Aurangabad Bench to the principal bench.Both the petitions sought quashing of advertisement issued by the high court in March for filling up the posts of stenographer, junior clerk and peon in district courts in Maharashtra since it provided for, so far post of junior clerk is concerned, only 1% seat reservation for 'hearing impaired' and 1% for 'one leg affected'.The petitioner in the case is 100 per cent visually impaired.The petition sought appropriate reservation to the physically handicapped candidates including visually impaired/blind candidates as per the Section 34 of the Right of Persons with Disabilities Act, 2016.The petitioners submitted that under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, reservation was prescribed for the visually impaired candidates to the posts which were identified as per the said Act. It is submitted that under the new Act i.e., The Rights of Persons with Disabilities Act, 2016, additional categories of reservations are prescribed for persons with disabilities and the high court being a state on its administrative side is bound to comply with the provisions of the Act of 2016.On behalf of the respondent high court, a reply filed by Atul Madhukar Kurehekar, Registrar (Legal & Research), High Court, Appellate Side, Bombay, said the present...

High Court While Dealing With Their Employees Or Acting In Administrative Capacity, Are “State” Within Art. 12: Bombay HC [Read Judgment]

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