Supreme Court - Daily Orders
Radha Vallabh Mishra vs State Of Rajasthan on 22 February, 2016
Bench: Fakkir Mohamed Ibrahim Kalifulla, S.A. Bobde
ITEM NO.2 COURT NO.6 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 28809/2014
(Arising out of impugned final judgment and order dated 21/03/2014
in CWP No. 1201/2014 passed by the High Court of Rajasthan at
Jodhpur)
RADHA VALLABH MISHRA Petitioner(s)
VERSUS
STATE OF RAJASTHAN AND ORS Respondent(s)
(office report)
Date : 22/02/2016 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
HON'BLE MR. JUSTICE S.A. BOBDE
For Petitioner(s) Ms. Aishwarya Bhati,Adv.
Mr. Dillip Kumar Nayak,Adv.
Mr. T. Gopal,Adv.
Ms. E. Kapur,Adv.
For Respondent(s) Mr. Ajay Kapur,AAG
Mr. Milind Kumar,Adv.
Mr. Sunil Kumar Jain,Adv.
Mr. Kaushik Choudhury,Adv.
UPON hearing the counsel the Court made the following
O R D E R
The short question for consideration is, as to whether the Rules framed under the provisions of The Persons with Disabilities Signature Not Verified Digitally signed by NARENDRA PRASAD (Equal Opportunities, Protection of Rights and Full Participation) Date: 2016.02.25 13:29:10 IST Reason: Act, 1995, in particular, Section 38 of the Act, the State 1 Government should formulate schemes, in the first instance, and while doing so provide for relaxation in the upper age limit for disabled persons. In fact, in the Rajasthan Judicial Service Rules, there is a provision for such relaxation providing for different categories of persons, such as Scheduled Castes, Scheduled Tribes, Other Backward Classes, Women candidates, persons serving in affairs of the State etc., widows, divorced women and so on. The Rajasthan Government formulated their Rules in 2011 under the Act called Rajasthan Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2011, which provides for relaxation in the maximum age limits for General Category, Backward Classes, Special Backward Classes as well as Scheduled Castes and Scheduled Tribes.
However, significantly, when it came to the question of recruitment for the posts of Civil Judges in the Services of the judiciary it is pointed out that neither in the Rules of Rajasthan Judicial Service Rules, 2010, nor in the State Rules of 2011 there is any provision for relaxation in the upper age limit in respect of disabled persons.
The petitioner herein is concerned with the selection by way of direct recruitment through competitive examinations held in 2013 for the post of Civil Judges (Junior Division) and Judicial Magistrate (First Class) in Civil Judge Cadre of Rajasthan Judicial Service under the Rajasthan Judicial Service Rules, 2010. It is necessary to note that this Court has held that while on the one hand reservation as provided under Articles 16(1), 4, (4A) and (4B) falling under Chapter III forms the basic structure of the Constitution, preservation of autonomy and role of High Court as envisaged under Articles 233 to 235 of the Constitution are also part of basic structure of Constitution. We can make a reference to a recent decision of this Court reported as Nawal Kishore Mishra & Ors. Etc. v. High Court of Judicature at Allahabad Through its Registrar General & Ors. Etc. – 2015 (5) SCC 479 wherein, while 2 highlighting the principles on this aspect this Court has held as under in paragraphs 20.10, 20.12, 20.14 and 20.15:
“20.10. Realising the need for a scheme of reservation in appropriate cases by resorting to the enabling provision under Article 16(4), the High Court can be consulted by the Government for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not done, the legislature cannot by an indirect method completely bypass the High Court and by exercising its legislative power circumvent and cut across the very scheme of recruitment and appointment to the District Judiciary as envisaged by the makers of the Constitution.
20.12. Having regard to Article 16(4), the High Court being a high constitutional functionary would also be alive to its social obligations and the constitutional guideline for having a scheme of reservation to ameliorate the lot of deprived reserved categories like SC, ST and OBC. But for that the Governor in consultation with the High Court should make appropriate rules and provide for a scheme of reservation for appointments at grassroots level and even at the highest level of District Judiciary. If that was not done, the State Legislature cannot upset the entire apple cart and by bypassing the constitutional mandate of Articles 233 and 234 lay down a statutory scheme of reservation governing all State services including judiciary.
20.14. If the proper course of formulating the scheme in the form of a rule by the High Court to provide for reservation is not made, that would deprive of the right to suggest the consultative process by way of its own expertise that for maintenance of the efficiency of administration of judicial service controlled by it 50% reservation may not be required and/or and even lesser reservation may be required or even may not be required at all.
20.15. To give Article 335 its full play for enacting a scheme of reservation, the High Court entrusted with the full control of the Subordinate Judiciary as per Article 235 of the Constitution has got to be consulted and cannot be treated to be a stranger to the said service by trying to apply 3 the whole of the Reservation Act.” Therefore, when it comes to the question of reservation on the one hand and independence of Judiciary on the other hand, as between the two it should be left to the High Court to decide and that State should consult the High Court for creating any such reservation and that the High Court being a high constitutional functionary would certainly be alive to the social obligation and befitting the situation come forward to pass a scheme of reservation to such categories.
The lofty and laudable object with which the Act has been formulated, can be noted from the Objects and Reasons which states that the Act was enacted to provide for provisions to spell out the responsibility of the State inter alia in relation to employment and rehabilitation of persons with disabilities, to create barrier free environment for persons with disabilities, to lay down a strategy for comprehensive developmental programmes and thereby equal opportunities for persons with disabilities are made, apart from making special provisions for the incorporation of persons with disabilities into social mainstream. It is imperative that the State Government in co-ordination with the High Court should consider formulating appropriate provision under a scheme for relaxation in tune with the objectives of the legislation, as has been provided under Section 38 of the Act, read along with any other existing Scheme of the State Government.
When we consider the whole issue in the above perspective, we feel that even while appreciating the reasoning of the High Court, while interpreting Section 13 of the Act, the laudable objective with which the legislature brought out the legislation should also be equally kept in mind and when we do so, we can direct the High Court and the State Government to consider providing for an appropriate relaxation in the age of persons with disabilities.
Therefore, without interfering with the judgment impugned in 4 this special leave petition, we direct the High Court and State Government to address this issue appropriately and formulate the required Scheme and consider providing for any age relaxation in the age limit for disabled persons under Section 38(1)(b) of the Act. The said exercise may be carried out expeditiously. With the above observations and directions, the special leave petition stands disposed of.
(NARENDRA PRASAD) (SHARDA KAPOOR)
COURT MASTER COURT MASTER
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