IN THE HIGH COURT OF JUDICATURE AT PATNA In the matter of applications under Article 226 of the Constitution of India. CWJC No.6637 of 2003 PUNAM KUMARI DAUGHTER OF DR. RAMASHANKAR SINGH RESIDNET OF GOVT. FLAT NO. 551, LAL BAHADUR SHASTRINAGAR, P.S. SHASTRINAGAR, PATNA. Versus 1. PATNA HIGH COURT THROUGH REGISTRAR GENERAL, PATNA HIGH COURT, PATNA. 2. THE REGISTRAR GENERAL, PATNA HIGH COURT, PATNA. with CWJC No.9421 of 2003 ARJUN KUMAR SINGH SON OF SHYAM KISHORE SINGH VILLAGE DAKSHNIPUR, P.S. HARNAUT, DISTRICT NALANDA AT PRESENT RESIDNET OF C/O. SATYADEV PRASAD OF VILLAGE RASALPUR, P.O. BIND, DISTRICT NALANDA. Versus 1. THE STATE OF BIHAR 2. THE HIGH COURT OF JUDICATURE AT PATNA THROUGH REGISTRAR GENERAL, PATNA HIGH COURT, PATNA, 3. THE SECRETARY, PERESONNEL ADMINISTRATIVE REFORMMS DEPARTMENT, PATNA. with CWJC No.9626 of 2003 SANTOSH KUMAR SON OF SRI BHUNESHWAR NATH RESIDENT OF MOHALLA DADAR MANDI, P.S. ALAMGANJ, DISTRICT PATNA Versus 1. PATNA HIGH COURT THROUGH REGISTRAR GENERAL, PATNA HIGH COURT, PATNA. 2. THE REGISTRAR GENERAL, PATNA HIGH COURT, PATNA. ----------- For the Petitioner :- M/S. Surendra Kumar Singh, Prabhat Kumar Singh & Archana Prasad - 2 - For the High Court :- Mr. D. K. Sinha, Sr. Advocate & Mr. Abhinav Raj For the State :- Mrs. Nilu Agrawal, G.A. X & Mr. Jainendra Kumar Sinha, A.C. to G.A. X ------- P R E S E N T THE HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ------ A.K.Tripathi,J. All the three writ applications came to be filed after an advertisement was issued by the High Court for appointment to the post of Assistants. Advertisement in this regard was issued in the year 2002 which is Employment Notice No. 1/2002. Examinations were held, interview conducted and appointments made. It is thereafter that the three writ applications came to be filed, two of them claiming that there ought to have been reservation for physically handicapped candidates and in one writ a demand was made that reservation should have been even provided to the O.B.C. Writ applications came to be admitted and are being taken up now for final disposal. So far as the issue of providing reservation to the physically handicapped candidate is concerned, contention of the learned counsel is that Section 33 of - 3 - the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called the said Act) provides for such a reservation. Section 33 of the Act is quoted here-in- below :- “33. Reservation of posts -- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from --- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability. Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” This section has also to be read in light of the definition clause and the relevant provision in this regard is Section 2(k) of the Act which defines „establishment‟. This definition is also reproduced as it has relevance to the question raised. “establishment” means a corporation established by or under a - 4 - Central Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government Company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government.” The stand of the learned counsel is that the law having been enacted by the Parliament, it is applicable to every Institution or establishment and appropriate provision ought to have been made in the advertisement for appointment issued by the High Court. On a pointed question having been put to the learned counsel on the question whether the High Court was an establishment in terms of the definition given under section 2(k) of the Act, the Court did not get any categorical answer on the issue except for the posturing of the Counsel that the law is all pervasive and it ought to apply to each and every establishment including High Court. This Court has certain reservation on such a wide or pervasive kind of submission being made at the Bar on this question because applicability of the Act will have to be understood in light of the Act, what has been categorically laid down in various provisions of - 5 - the Act. More so if there is a definition clause which defines what „establishment‟ stands for and to whom the provisions are applicable. Learned counsel thereafter brings to my notice a gazette notification dated 20th May, 2009 by virtue of which Patna High Court itself has amended the Patna High Court Officers and Staff (Condition of Service and Conduct) Rules, 1997. Rule 9 stands amended and provision for reservation earlier restricted to Scheduled Caste and Scheduled Tribes has now been expanded to include reservation for O.B.C. as well as physically handicapped category persons. Since appointment in the High Court is made under the Rules enacted under Article 229 of the Constitution of India and the High Court has made provision for such reservation only in the year 2009, this benefit of reservation can accrue to the candidates from the amended date and not prior to the same. The benefit of notification will be prospective in nature and not retrospective. In view of the fact that there was no provision for providing reservation for appointment in the High - 6 - Court in other categories except Scheduled Caste and Scheduled Tribe when the advertisement was issued, no case for a direction upon the administrative side of the High Court for appointment of these petitioners are made out. All these three writ applications are misplaced and they are dismissed but without cost. (Ajay Kumar Tripathi, J.) Patna High Court, The 14th September, 2010. AMIN/ (N.A.F.R.)