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Delhi Equity Forum And Ors vs National Commission For Scheduled ... on 1 December, 2022

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~62
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      W.P.(C) 16550/2022
                                 DELHI EQUITY FORUM AND ORS.           ..... Petitioners
                                               Through: Mr. M.K. Bhardwaj and
                                               Ms. Alisha Saini, Advocates.

                                                    versus

                                 NATIONAL COMMISSION FOR SCHEDULED
                                 CASTE AND ORS.                      ..... Respondents
                                              Through: Mr.      Anil      Soni,   Central
                                              Government Standing Counsel for R-1.

                                 CORAM:
                                 HON'BLE MS. JUSTICE JYOTI SINGH
                                                    ORDER

% 01.12.2022 C.M. No. 52035/2022

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

W.P.(C) 16550/2022 & C.M. No. 52034/2022

3. Issue notice.

4. Mr. Anil Soni, learned Central Government Standing Counsel accepts notice on behalf of Respondent No. 1.

5. Notice be issued to Respondents No. 2 to 5, through all prescribed modes, returnable on 18.07.2023.

6. By way of present writ petition, Petitioners have sought quashing of the impugned order dated 11.11.2022, passed by Respondent No. 1 as also the Circular dated 29.10.2022 and order dated 11.05.2022, issued by Respondents No. 2 and 3 under directions of Respondent No. 1.

7. Petitioners No. 2 to 5 herein were appointed as Staff Nurse (re- designated as Nursing Officer) during 1990-91 and promoted as Signature Not Verified Digitally Signed W.P.(C) 16550/2022 Page 1 of 4 By:KAMAL KUMAR Signing Date:07.12.2022 19:23:56 Senior Nursing Officer in the year 2011. Juniors of Petitioners No. 2 to 5 were promoted as Senior Nursing Officers by giving the benefit of reservation. Aggrieved with this action, Petitioner No. 1 herein and other similarly placed persons filed O.A. No. 2434/2012 before the Central Administrative Tribunal and vide order dated 05.12.2013, O.A. was allowed with directions to the official Respondents to review all promotions applying the reservation Rules and redo the entire exercise. The order was challenged before this Court and Writ Petition No. 4376/2014 along with Writ Petition No. 6824/2014 was disposed of affirming the order of the Tribunal. When the Respondents did not implement the directions of the Court, Petitioners filed a contempt petition and finally on 15.07.2015, official Respondents conducted a review DPC and reverted 42 reserved category persons. On reversion the said persons approached Respondent No. 1 and after hearing the stakeholders, Respondent No. 1, vide the impugned order recommended to the concerned Authority to conduct a DPC on or before 30.11.2022, which according to the Petitioners amounts to undoing the directions of the Tribunal and this Court.

8. It is the contention of the Petitioners that Respondent No. 1 has no authority to make a recommendation contrary to the directions passed by the Tribunal and this Court. Moreover, the impugned order is ultra vires the power conferred on the said Commission under Article 338 of the Constitution of India inasmuch as it has no powers to adjudicate service-related grievances. Respondent No. 1 has also acted contrary to the law laid down by the Supreme Court in All India Indian Overseas Bank SC & ST Employees Welfare Association & Ors. v. Union of India & Ors., (1996) 6 SCC 606.

9. I have heard the learned counsels for the parties.

10. The Supreme Court in All India Indian Overseas Bank SC & ST Employees Welfare Association & Ors. (supra), has held as under:

"Interestingly, here, in clause 8 of Article 138, the words used are "the Commission shall... have all the powers of the Civil Court trying a suit." But the words "all the powers of a Civil Court" have to be exercised "while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5". All the procedural powers of a Civil Court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a Civil Court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause 8 of Article 338 of the Constitution. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated March 4, 1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant The High Court was justified in taking the view it did. The appeal is dismissed. No costs."

11. In Maharaja Agrasen College & Anr. v. Narendra Kumar & Ors., in W.P.(C) 521/2018, decided on 26.03.2019, this Court has held as follows:

"7. The controversy involved in the case is, ex facie, a service matter. It is now a settled position that the NCSC does not have the jurisdiction to adjudicate service matters. The Supreme Court in All India Indian Overseas Bank SC & ST Employees Welfare Association and Ors. v. Union of India &Ors.: 1996 Supp(8) SCR 295 had examined the powers of the NCSC and had held that although the NCSC has certain powers of a Court, it was not a Court and thus would not adjudicate disputes. The said view was also followed by the Coordinate Benches of this Court in Union of India v. National Commission for Scheduled Castes and Ann: W.P.(C) 2390/2012 decided on 28.05.2014 and Delhi Transport Corporation v. Manohar Lal and Anr: W.P.(C) 1613/2013 decided on 16.02.2016. This court had also considered the powers of the National Commission for Scheduled Tribes under Article 338A of the Constitution of India, which is similarly worded as Article 338 of the Constitution of India.

8. The learned counsel for NCSC submits that the impugned order is only a recommendation and is not an order. The said contention is unpersuasive as the plain reading of the operative part of the impugned order indicates that the petitioner has been called upon to submit an action taken report. Clearly, NCSC is insisting on the implementation of its recommendations. Even, otherwise the tenor of the impugned order clearly indicates that it is an order although couched as a recommendation, it is in substance, an order."

12. Two other Co-ordinate Benches of this Court have had the occasion to analyse parameters of exercise of power by the Commission in Union of India & Anr. v. National Commission for Scheduled Castes and Anr., W.P. (C) 2390/2012, decided on 28.05.2014 and in Delhi Transport Corporation v. Manohar Lal and Anr., W.P. (C) 1613/2013, decided on 16.02.2016. In light of Article 338 of the Constitution and the judgments referred to above, this Court is of the prima facie opinion that there is a jurisdictional error while passing the impugned order. In Maharaja Agrasen College & Anr. (supra), Court has clearly observed that the Commission cannot function as a Court to adjudicate service matters. Petitioners are also right in contending that once the Tribunal passed an order directing holding of DPCs in a particular manner, in accordance with law, which was affirmed by this Court, it was not open to Respondent No. 1 to recommend to the contrary. Even assuming, for the sake of argument that Respondent No.5 had any grievance, she should have approached the Appropriate Forum.

13. In view of the aforesaid, Petitioners have made out a prima facie case for grant of interim relief. Accordingly, till the next date of hearing, the impugned order dated 11.11.2022, passed by Respondent No. 1, is hereby stayed.

JYOTI SINGH, J DECEMBER 01, 2022/shivam/rk Signature Not Verified Digitally Signed W.P.(C) 16550/2022 Page 4 of 4 By:KAMAL KUMAR Signing Date:07.12.2022 19:23:56