Case Note & Summary
The Bombay High Court heard two petitions together: a writ petition by the National Federation of the Blind Maharashtra and a public interest litigation transferred from the Aurangabad bench. The petitioners challenged an advertisement dated 28 March 2018 issued by the High Court on the administrative side for recruitment of Stenographer (Lower Grade), Junior Clerk, and Peon/Hamal in various district courts across Maharashtra. The advertisement provided only 1% reservation each for hearing impaired and one leg affected categories, ignoring completely the visually impaired and other disabled persons in violation of the Rights of Persons with Disabilities Act, 2016 (RPwD Act). The High Court defended its stand that it is not a 'Government establishment' under Section 2(k) of the RPwD Act and that the 1995 Act was adopted voluntarily, not by compulsion. The petitioners argued that the High Court is 'State' under Article 12, had previously applied the 1995 Act, and the 2016 Act mandates identification of posts and reservation; failure to do so renders the advertisement illegal. After examining the provisions and the previous conduct of the High Court, the bench held that the High Court on its administrative side is indeed a Government establishment, cannot claim exemption without a notification under Section 34 proviso, and must comply with the RPwD Act. The advertisement was quashed; the High Court was directed to identify posts in accordance with Section 33 and issue a fresh advertisement providing reservation as per the Act. The writ petitions were allowed, rule made absolute.
Headnote
A) Constitutional Law - Definition of State - Article 12, Constitution of India, 1950 - High Court on administrative side held to be 'State' and covered by 'Government establishment' under Section 2(k) of Rights of Persons with Disabilities Act, 2016 - Held that the High Court's submission that it is not a Government establishment was rejected as it had previously adopted the Persons with Disabilities Act, 1995 and could not now deny applicability of the 2016 Act (Paras 12-15). B) Service Law - Reservation for Persons with Disabilities - Sections 33, 34, Rights of Persons with Disabilities Act, 2016 - Identification of posts and reservation mandatory before recruitment - Held that failure to identify posts and provide 4% reservation as per the Act vitiated the advertisement; recruitment process quashed (Paras 16-18). C) Service Law - Judicial Service - Article 229, Constitution of India, 1950 - Recruitment to ministerial staff in district courts to be governed by RPwD Act - Held that though Chief Justice controls appointments, the recruitment must comply with central legislation on disability rights; the High Court cannot plead exemption without notification under the proviso to Section 34 (Paras 14, 19).
Issue of Consideration
Whether the High Court on its administrative side is a 'Government establishment' under Section 2(k) of the Rights of Persons with Disabilities Act, 2016, and liable to provide reservation for persons with disabilities in the recruitment to posts in district courts; whether the advertisement dated 28 March 2018 for posts of Stenographer, Junior Clerk and Peon/Hamal is illegal for want of identification and reservation for disabled persons.
Final Decision
Writ petitions allowed. Advertisement quashed. High Court directed to identify posts under Section 33 and issue fresh advertisement with reservation as per RPwD Act, 2016.
Law Points
- Government establishment under Section 2(k) includes High Court on administrative side
- judiciary is bound by reservation under RPwD Act
- failure to identify posts under Section 33 and provide reservation under Section 34 vitiates recruitment
