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 philosophy
While 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 advertisement was issued to recruit staff in the district courts of the State of Maharashtra and district courts are not included in the definition of “Government Establishment” under Section 2(k) of the Act of 2016.
Advocate Uday Warunjikar, appearing for the National Federation of the Blind, submitted that high court on its administrative side is a State under Article 12 of the Constitution of India qua the recruitment in question. It is even covered under the definition of 2(k) of the Act of 2016, which defines “Government establishment”. The high court administration had made the Act of 1995 applicable to the recruitment of staff. Administrative decision was taken to the said effect and a notification was issued by the high court making the Act of 1995 applicable on November 29, 2004.
Sudhir Talsania, senior counsel appearing for the high court, submitted that high court is not covered by the definition of government establishment as defined under Section 2(k) of the Act of 2016 and neither the Act of 1995, nor is the Act of 2016 applicable to the services of judiciary or judicial establishment/high court/district courts services. He submitted that the high court being a constitutional establishment, the provisions of Section 2(k) of the Act of 2016 cannot be made applicable, even if the Central or the State allocate funds for running the courts and/or its establishment and they are independent of the government.
The Advocate General, however, submitted that it is possible to contend that the high court on its administrative side may be considered a State, but not on its judicial side within the meaning of Article 12.
He 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), which guarantees equality of opportunity for all citizens in matters relating to employment.
The bench referred to a notification issued by Bombay High Court on November 11, 2004, wherein the Chief Justice had directed that the provisions regarding reservation of vacancies contained in The Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, be made applicable to appointments in Class III and Class IV services in the judiciary throughout Maharashtra.
Further, a notification was published in the Government Gazette, notifying that the Chief Justice has made applicable the Disabilities (Equal Opportunities, Full Participation and Protection of Rights) Act, 1995, in recruitment to the post under Groups C and D in the high court and its benches and subordinate courts in Maharashtra vide a notification in 2009.
The bench said, “The question as to whether the High Court is a “State” within the meaning of Article 12 of the Constitution is settled one. The Apex Court in the case of HC Puttaswamy and Ors. vs. Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors. [AIR 1991 SC 295] observed as under:- “The Judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice”.
In the case of Riju Prasad Sarma and Ors. vs. State of Assam and Ors. the Apex Court had observed that “On the related issue of the scope of Article 12 and whether for the purposes of issuance of writ, judicial decisions by the judiciary can be included in State action, we are in agreement with the submissions advanced by Mr. Rajeev Dhavan that definition of “the State” under Article 12 is contextual depending upon all the relevant facts including the provisions concerned in Part III of the Constitution. The definition is clearly inclusive and not exhaustive. Hence omission of judiciary when the Government and Parliament of India as well as the Government and Legislature of each of the States has been included is conspicuous but not conclusive that judiciary must be excluded”.
The bench also noted the apex court view in Renu and Ors. vs. District and Sessions Judge, Tis Hazari Courts, wherein it was held that “…the law can be summarised to the effect that the powers under Article 229(2) of the Constitution cannot be exercised by the Chief Justice in an unfettered and arbitrary manner. Appointments should be made giving adherence to the provisions of Articles 14 and 16 of the Constitution and/or such rules as made by the legislature.”
While disposing of the petitions, the court made it clear that just because the identification exercise has not been done, the benefit accruing to the persons under the Act, which is a piece of social welfare legislation, cannot be denied to deserving persons.
“We are conscious of the fact that keeping the posts vacant in the courts is not going to serve any purpose as the same would affect effective functioning of the courts. We are informed that more than 3.5 lakhs candidates have already filed applications. In case the recruitment process itself is quashed and set aside, it may disturb the recruitment process and may cause prejudice to the candidates who have so far submitted online applications.
“Conscious of the situation, we have to find a balanced solution to the emerging issue. We find that in the facts scenario, the recruitment process shall be allowed to continue with a rider that the respondent – 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.
Thereafter by a special drive, recruitment process could be initiated for filling up vacancies for persons who are covered under the provisions of Act of 2016. Such an approach will not only benefit the candidates in general but protect the legal rights of the candidates, who find themselves deprived of getting benefits of the Act of 2016”.
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