Court in its administrative capacity is “State” under Article 12, Bombay High Court

The Bombay High Court has ruled that Courts and Court establishments in their administrative capacity fall within the definition of “State” under Article 12 of the Constitution..However, the High Court also unambiguously stated that on the judicial side, courts are completely independent and do not fall within the scope of Article 12..The Court was hearing the case of the National Federation of Blind Maharashtra v. High Court of Judicature of Bombay along with the PIL filed one Sachin Bhuarao Chavan against the State of Maharashtra..The judgement was pronounced by a Division Bench comprising Justices Naresh H Patil and GS Kulkarni..The petitions pertained to reservation of posts for persons with disability during recruitment drive initiated by the Bombay High Court to fill up vacancies of stenographers, junior clerks, and peons/hamals..Pursuant to the same, the High Court had issued an advertisement in March this year inviting applications to fill up vacancies in the aforementioned posts..The petitioners had moved the High Court seeking a direction that the advertisement for recruitment should be in consonance with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1995 Act) and The Rights of Persons with Disabilities Act, 2016 (2016 Act)..The respondent, Bombay High Court had contended that the 2016 Act only prescribes rules for recruitment of staff in “Government establishments” and submitted that Court and Court establishments do not constitute “government establishment”. Hence, it had submitted that the 2016 Act was not applicable to the Court’s recruitment process..The submissions made by the respondent also stated that in the past, the Bombay High Court had adopted and applied certain provisions of the 1995 and 2016 Acts but it was a decision made by choice and that the “Act cannot be imposed by a mandate of law to be adopted and implemented by the respondent”.The respondent also told the Court that a large number of vacancies have been created and an even larger number of seats are expected to fall vacant in the coming two years. So, it would not be advisable or feasible to cancel the recruitment process carried out till now and start the same afresh..The Court while dealing with the question of applicability of the Acts to courts and judicial institutions, cited the decisions taken at an Administrative Judges’ meeting in 2004 which decided squarely on this subject. The Court quoted the minutes of the meeting,.“[I]t was decided 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 the State of Maharashtra.”.The Bench also reminded the Counsel for the respondent of the Notification which was issued in furtherance of the decision taken at that meeting of 2004..While considering the question of whether or not Courts and judicial bodies fall within the definition of State under Article 12 of the Constitution, the Bench relied heavily on a catena of decisions, particularly those passed by the Supreme Court and said,.“The afore-stated authorities/observations of the Apex Court clearly indicate that on the judicial side, the courts are not included in the definition of “State”, but while dealing with the employees or taking decisions in administrative capacity, the courts would fall within the definition of “State” under Article 12.”.The Court said that the argument made by the respondent vis-à-vis Courts not being “government establishments” does not hold good and provisions of the Acts of 1995 and 2016 are very well applicable even for recruitments to vacant posts of junior clears, stenographers and peons..The Bench also stressed on the need for implementation of welfare legislations like the Right of Persons with Disabilities Act..Keeping in mind the number of vacancies and the dire need to fill them up, the Court said that while the current recruitment process can continue, a total of 4 per cent of those vacancies should be kept open. These vacancies will have to be filled up in accordance with the provisions of the 2016 Act in a fresh recruitment process..Read the judgement below.