THE HONOURABLE THE ACTING CHIEF JUSTICE
SRI M.S. RAMACHANDRA RAO
AND
THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.4364 of 2021
ORDER: (Per Hon'ble the Acting Chief Justice Sri M.S.Ramachandra Rao)
In this Writ Petition, the Writ Petitioner has sought a Writ of
Mandamus declaring Rule 3.2.7 of the Rules of Procedure of the
National Commission for Backward Classes framed on 23.01.2020 as
ultra vires Article 338-B of the Constitution of India, and to quash or set
aside the same by declaring it as unconstitutional. A declaration is also
sought that the orders vide NCBC / MEMBER(AT) / 2020 / FILE - 215,
dt.02.02.201 and 05.02.2021, passed by 2nd respondent with respect to
recruitment of various posts being carried out by petitioner vide Notification No.I/2020 dt.23.05.2020 as arbitrary, illegal and without jurisdiction.
2. On 03.03.2021, a Division Bench of this Court presided over by the Chief Justice, while issuing notice to respondent nos.1 and 3 directed that the proceedings before the 2nd respondent - Commission shall remain stayed, and it further directed that the petitioner-University shall be at liberty to continue with the interviewing process without declaring the results till the next date of hearing.
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3. This order was extended on 13.09.2021 for a period of one (01) week. The matter was again heard on 14.09.2021 and orders were reserved in the Writ Petition.
The background facts
4. The petitioner herein is a Central University established by the English and Foreign Languages University Act, 2006 (for short, 'the EFLU University'). The Act envisages establishment and incorporation of a teaching University for the promotion and development of English and Foreign Languages and their literatures and to provide matters connected therewith or incidental thereto. It has campuses at Hyderabad, Shillong and Lucknow.
5. The petitioner had issued Notification No.III/2019 dt.12.07.2019 calling for applications from eligible candidates for recruitment to 52 vacancies in the cadres of Professor, Associate Professor and Assistant Professor in various departments.
6. In supersession of the said Notification, it issued Notification No.I/2020 dt.23.05.2020 (recruitment notification) calling for applications from eligible candidates for recruitment to 58 vacancies in the cadres of Professor, Associate Professor and Assistant Professor.
7. It is averred that it is duly following the existing policy for reservations for all categories as laid down by the Union of India through various Orders / Acts and amendments made from time to time, HACJ & TVK,J ::3:: wp_4364_2021 and more particularly, the Central Educational Institutions (Reservation in Teachers' Cadre) Act, 2019 (Reservation Act), and the notifications issued thereunder; that it has been strictly following the post based roster system for providing reservation to various categories including other backward classes ever since its implementation in 1997 while making appointments to various teaching and non-teaching cadre posts; and that the process of selection is governed by the University Grants Commission Regulations of Minimum Qualifications for Appointment of Teachers and other Academic staff in Universities and Colleges and Measures for Maintenance of Standards in Higher Education, 2018 dt.18.07.2018.
The complaint of 3rd respondent
8. The 3rd respondent made a complaint before the 2nd respondent on 21.01.2021 alleging that petitioner University has not been adhering to the reservation of quota meant for 'Other Backward Classes' while making recruitment to teaching posts.
The actions of 2nd respondent Commission
9. The 2nd respondent, vide Notice in NCBC/ MEMBER(AT) / 2020 / FILE - 215 dt.22.01.2021 directed the Vice Chancellor and the Registrar of petitioner University to appear before it for enquiring into the complaint on 25.01.2021.
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10. They appeared before the 2nd respondent and claimed to have submitted a report on 25.01.2021 in proof that the EFLU University has been strictly following all the rules and the law with respect to reservations for other backward classes while making recruitment to the various teaching posts and followed up the same with another report dt.30.01.2021 explaining the steps taken by the petitioner University to provide the reservations for other backward classes in accordance with law.
11. Pursuant to the above recruitment notification, the EFLU University commenced interviews for recruitment to various posts on 21.01.2021 and the said interviews were due to be concluded on 05.02.2021.
The impugned order passed by the 2nd respondent Commission
12. But the 2nd respondent vide letter NCBC / MEMBER(AT) / 2020 / FILE - 215 dt.27.01.2021 directed petitioner University to put on hold the entire recruitment process until further orders while directing the officials of the EFLU University to attend the next date of enquiry at New Delhi on 02.02.2021.
Contentions of petitioner
13. Petitioner contends that it engaged the services of one Smt. Mrinal Elker Majundar, Advocate-on-Record, Supreme Court to represent it before the respondent nos.1 and 2; that respondent nos.1 and 2 along HACJ & TVK,J ::5:: wp_4364_2021 with other officials of petitioner University attended the enquiry and were astonished to see that the Members of 2nd respondent were entertaining the complainant and did not allow them nor their counsel to attend the same; that when the counsel requested to allow her to represent, she was rudely shooed away by the Members of 2nd respondent stating that she has no right to appear before it; and left with no other alternative, the petitioner's counsel left the place after filing memo of her appearance.
14. It is alleged that without referring to the happenings that took place on 02.02.2021, the 2nd respondent issued NCBC/ MEMBER(AT) / 2020 / FILE - 215 dt.02.02.2021 ordering stay of interviews with immediate effect until further orders in purported exercise of power under Rules 3.2.7 of the Rules of Procedure of the National Commission for Backward Classes dt.23.01.2020; and that the 2nd respondent followed it up with another stay order dt.05.02.2021.
15. Petitioner therefore challenges the constitutionality, legality and validity of Rule 3.2.7 of the Rules of Procedure of the National Commission for Backward Classes dt.27.01.2020 (Rules) and the orders NCBC/ MEMBER(AT) / 2020 / FILE - 215 dt.02.02.2021 and 05.02.2021 (impugned orders) issued by the 2nd respondent and contends that the petitioner and 2nd respondent are not authorized by the Constitution to act as a judicial body and cannot pass verdicts of stay HACJ & TVK,J ::6:: wp_4364_2021 and status quo on the functioning of any authority, leave alone a Central University like the EFLU University.
16. The petitioner herein challenges the action of 2nd respondent on the ground that 2nd respondent has been constituted under Article 338-B of the Constitution of India with power to 'investigate, monitor and report' matters relating to the safeguards provided for the socially and educationally backward classes under the Constitution; that the role envisaged for 2nd respondent by the constitutional provision is advisory, and that the action of 2nd respondent in passing the impugned orders is arbitrary, illegal and without power, authority or jurisdiction; that the role envisaged for the 2nd respondent is akin to the National Commission for Scheduled Castes under Article 338, the National Commission for Scheduled Tribes under Article 338-A, the National and State Human Rights Commissions, the National Commission for Women, the National Commission for Minorities, the National Commission for Safai Karamcharis and the Commissions for Protection of Child Rights constituted under the relevant statutes which are only advisory in nature, and the said bodies have no power in the nature of interdicting the recruitment process being carried out by a Central University like the EFLU University, and that Rule 3.2.7 of the Rules is liable to be struck down as being unconstitutional.
17. It was further alleged that Sub-article (4) of Article 338-B of the Constitution confers power on the 2nd respondent to regulate its own HACJ & TVK,J ::7:: wp_4364_2021 procedure and in pursuance thereof, the 2nd respondent framed the Rules and Rule 3.2.7 which reads as under :
"Where the property, service / employment, recovery of the socially and educationally backward classes and other related matters are under immediate threat and prompt attention of the Commission is required, the matter shall be taken cognizance by issue of e-mail / fax to the concerned authority for making it known to them that the commission is seized of the issue and that authority will be prohibited to take any action till the completion of the enquiry in the matter by the NCBC. Urgent reply by email or fax shall be called from the concerned authority. In case no reply is received within three working days, the authority concerned may be required to appear before the Commission at three days' notice for enquiry.'( emphasis supplied)
18. The petitioner submits that the power to grant stay is a substantive power and the Constitution vests the 2nd respondent with power only to regulate its procedure. The power to regulate its own procedure cannot extend to conferring upon itself the substantive power to grant stay of a recruitment process.
19. The petitioner alleges that the substantive powers of the Commission are governed by Article 338-B(8) which states that the Commission shall have powers of a Civil Court 'in respect of' certain matters enumerated therein, including the power to compel production of documents and attendance of witnesses, the power to receive evidence, the power to requisition public records, the power to issue commission, and 'any other matter which the President may, by rule, determine'; and that the said words make it amply clear that the scope of Commission's substantive powers are limited to the matters enumerated in the said sub-
HACJ & TVK,J ::8:: wp_4364_2021 article, and any substantive additions to the powers can only be made by the President through rules made in that behalf.
20. It was further contended by the petitioner that the phrase 'powers of a Civil Court' must be read in the context of the fact that the Commission is a purely advisory body having no judicial authority; and therefore, Rule 3.2.7 is ultra vires Article 338-B of the Constitution, and is thus liable to be struck down by declaring it as unconstitutional.
21. The other contentions on merits of the issues raised by the 3rd respondent before the 2nd respondent are also pleaded and reliance is placed by the petitioner on the decision of the Supreme Court in All India Indian Overseas Bank SC and ST Employees' Welfare Association and others vs. Union of India and others1. The stand of the 2nd respondent
22. These contentions are refuted in the counter affidavit filed on behalf of the 2nd respondent.
23. It is stated that the 2nd respondent is a Constitutional Body formed through 102nd Constitutional Amendment dt.11.08.2018 and under Article 338B, empowered to investigate and monitor all matters relating to the safeguards provided for socially and educationally backward classes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the 1 (1996) 6 SCC 606 HACJ & TVK,J ::9:: wp_4364_2021 working of such safeguards. It is stated that the 2nd respondent has acted in accordance with the powers endowed on them by Constitution of India.
24. It is alleged that the petitioner initially issued Notification No. III/2019 dt.12.07.2019 for recruitment of faculty positions of 52 and in which it has shown the reservation for OBCs of 04 posts (8% reservation for OBCs) instead of 14 posts (27% reservation for OBCs as per MHRD, Dept. of Higher Education Notification dt.12.07.2019).
25. The said Notification dt.12.07.2019 was cancelled and suppressing it, a fresh Notification No.1/2020 dt.29.05.2020 (herein referred as "Notification 2020") was issued for 58 faculty positions, out of which 08 positions (14% reservation for OBCs) were shown for OBCs instead of 16 positions (27% reservation for OBCs as per MHRD, Dept. of Higher Education Notification dt.12.07.2019).
26. When reviewed, it shows that Notification dt.12.07.2019 has even denied reservations for OBCs for Professor positions and later realizing, in Notification 2020 they have considered some OBC reservation in Professor posts also making overall OBC posts as 08 instead of 16 posts as per notification alone or 28 posts calculating a total strength of 236 sanctioned posts in the petitioner University.
27. It is submitted that on 21.01.2020, the 3rd respondent has approached the 2nd respondent and submitted a representation / HACJ & TVK,J ::10:: wp_4364_2021 complaint regarding the deliberate denial of OBC quota by violating rule of reservation according to Central Educational Institutions (Reservation in Teachers' Cadre) Act, 2019.
28. It is submitted that the 3rd respondent contended before the 2nd respondent that the petitioner had been violating the provisions of Indian Constitution with regard to the OBC reservations in faculty recruitment since 2007 and indulging in gross injustice; that despite giving many representations, the petitioner never bothered to listen to the concerns of OBCs and the petitioner continued to deprive their constitutional rights with a perpetual ploy to scuttle OBCs and fraudulently deny them recruitment opportunities; and the 3rd respondent requested the 2nd respondent to enquire into the matter and directed the petitioner to cancel the "notification 2020" if any irregularities are found. Reference is made in detail to the contention of the 3rd respondent that the rules of reservation of OBCs have been violated.
29. It is submitted that the 2nd respondent received the representation and under Article 338B(5)(a) & (b) of the Constitution of India had issued notice to the petitioner to submit their report regarding the implementation of OBC reservations in their Notification No. 1/2020 dt.23.05.2020.
30. According to 2nd respondent, Article 338B(5)(a) & (b) of the Constitution of India, under which the 2nd respondent is empowered, state:
HACJ & TVK,J ::11:: wp_4364_2021 "Art.338B(5): It shall be the duty of the Commission
(a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to enquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes."
31. It is submitted that the OBC candidates will be deprived of their right and their OBC vacancies will be filled with non-reserved candidates causing irreparable loss to the OBC candidates.
32. For this reason, it is contended that the 2nd respondent directed the petitioner to keep on hold the present interviews and asked it to submit further documents for a detailed enquiry; and it is submitted that the High Court must not interfere and exercise its extraordinary jurisdiction under Article 226 at the behest of such a person who has abused the process of the Court.
33. It is submitted that the 2nd respondent has rightly taken a decision to stop the interviews as there was a grave injustice caused to the OBCs through the Notification 2020 issued by the petitioner University without following the law.
34. It is submitted that the rules of the Commission (2nd respondent) are framed under Article 338B(4), which mandates the Commission to regulate its own procedure. Accordingly after the constitutional body is HACJ & TVK,J ::12:: wp_4364_2021 formed through the 102nd Amendment, the Commission Chairman & Members have formed rules to function without deviating the spirit of the Article 338B.
The NCBC Rules, Chapter-III contemplates the investigation and inquiry method.
A bare review of the rules framed for investigation and inquiry by the Commission show that they are very much procedural in all matters. However, when there is any matter where immediate threats and prompt attention of the Commission is required, the authorities to whom a notice is served shall not take any action till the completion of the enquiry.
This provision is operative only in two situations, (1) where there is an immediate threat and (2) prompt attention of the Commission is required.
In the present matter, as the 3rd respondent had made a complaint and the petitioner is making a ploy to complete the interviews by 05.05.2021 before the investigation is completed, the Commission (2nd respondent) has issued direction not to proceed with the interviews as there is a grave violation of OBCs/SEBCs rights in the recruitment.
It is contended that the Commission noticed that if the vacancies are filled by the notification 2020, the OBC candidates will be deprived of their right and their OBC vacancies will be filled with Non-reserved candidates causing irreparable loss to the OBC candidates. In this HACJ & TVK,J ::13:: wp_4364_2021 situation, issuing a direction to hold the interviews will not hinder anything except a small time delay. But, if such stay is not directed, there may cause a lot of irreparable loss and also makes the selected candidates confused.
35. Other contentions on merits have also been advanced by the 2nd respondent.
36. Reliance is placed on the decision of the Supreme Court in Dr. Jaishri Laxmanarao Patil Vs. The Chief Minister and others2.
37. The 3rd respondent has also filed a counter affidavit supporting the stand of the 2nd respondent and also tried to justify the contents of the complaint made by him to the 2nd respondent.
Points for consideration in this Writ Petition
38. From the rival contentions of the parties, the following points arise for consideration:
(a) Whether the National Commission for Backward Classes constituted under Article 338B of the Constitution of India is empowered under Clauses (4) and (8) thereof to exercise all the powers of a Civil Court including orders in the nature of temporary or permanent injunctions / stay orders/ directions to any party to keep on hold / stop activities such as interviews for selection to posts ?
(b) Whether Rule 3.2.7 of the Rules of Procedure of the National Commission for Backward Classes notified vide Notification F.No.NCBC/7/57/2019-RW MISC in so far as it authorizes the said Commission to prohibit taking of any action by any party till the 2 Civil Appeal No.3123 of 2020 and batch dt.05.05.2021 HACJ & TVK,J ::14:: wp_4364_2021 completion of the enquiry in the matter before it, is ultra vires or intra vires Article 338B of the Constitution of India ?
(c) Whether the orders ref. NCBC/Member(AT)/2020/File-215 dt.02.02.2021 and 05.02.2021 passed by the 2nd respondent Commission with respect to recruitment to various posts being carried out by the petitioner vide Notification No.I/2020 dt.23.05.2020 is arbitrary, illegal and without jurisdiction ?
Consideration by the Court
39. We shall first consider the following point:
(a) "Whether the National Commission for Backward Classes constituted under Article 338B of the Constitution of India is empowered under Clauses (4) and (8) thereof to exercise all the powers of a Civil Court including orders in the nature of temporary or permanent injunctions / stay orders/ directions to any party to keep on hold / stop activities such as interviews for selection to posts ?"
40. The National Commission for Backward Classes was created in 1993 under National Commission for Backward Classes Act, 1993 as per a direction issues by the Supreme Court of India in Indra Sawhney Vs. Union of India3 to the Central and State Governments to constitute a permanent Body / Commission to decide issues pertaining to over and under inclusion of Other Backward Classes. It was held:
"847. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be 3 1992 Supp (3) SCC 217 HACJ & TVK,J ::15:: wp_4364_2021 binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under clause (4) of Article 16 itself -- or under Article 16(4) read with Article 340 -- as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of OBCs. As suggested by Chandrachud, CJ in Vasanth Kumar4 there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be."
41. But in 2018, Parliament passed the Constitution (102nd Amendment) Act, 2018 inserting new Article 338B elevating the National Commission for Backward Classes to the status of a Constitutional Body.
42. As per Article 338B the said Commission has various powers as mentioned in Clause (5) thereof such as:
4
1985 Supp SCC 714 HACJ & TVK,J ::16:: wp_4364_2021 "Article 338B:
(1) to (4) ... ......
(5) It shall be the duty of the Commission--
(a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes;
(c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the socially and educationally backward classes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify."
43. Clause (4) of Article 338B confers on the Commission the power to regulate its own procedure.
44. In exercise of the said power conferred on it, Rules of Procedure were framed by the Commission, which contain Rule 3.2.7 which inter alia authorizes the said Commission to prohibit any Authority from taking any action till the completion of the enquiry in the matter by it.
45. While the petitioner seeks to contend that such a jurisdiction is not conferred on the Commission to exercise powers akin to a Civil Court of HACJ & TVK,J ::17:: wp_4364_2021 granting injunctions, temporary or permanent, or stay or prohibitory orders or keep on hold orders, the respondents 2 and 3 refute the same by placing reliance on Clause (8) of Article 338B.
46. Clause (8) of Article 338B states:
"Article 338B:
(1)to (7) ... ... ...
(8) The Commission shall, while investigating any matter referred to in sub- clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine."
47. In particular the respondents lay special emphasis on the words 'all the powers of a civil court' used in the said Clause to contend that such a power to grant orders in the nature of temporary or permanent injunctions, stay orders, prohibitory orders, keep on hold orders is conferred on the Commission.
48. The counsel for the petitioner on the other hand contended that notwithstanding the said words occurring in Clause (8) of Article 338B, conferment of such a power cannot be inferred, and only such procedural powers of a Civil Court as are necessary for the purpose of investigating HACJ & TVK,J ::18:: wp_4364_2021 into the matters specified in sub-Clause (a) or for inquiring into any complaint referred to in sub-Clause (b) of Article 338B are conferred on the Commission. He places reliance on the decisions of the Supreme Court in All India Indian Overseas Bank SC and ST Employees' Welfare Association and others (1 supra) and State Bank of Patiala and others Vs. Vinesh Kumar Bhasin5.
49. We shall therefore examine the said decisions.
50. In All India Indian Overseas Bank SC and ST Employees' Welfare Association and others (1 supra), a letter dt.04.03.1993 was addressed by the National Commission for Scheduled Caste and Scheduled Tribes constituted under Art.338 of the Constitution ( as it then stood) to the Executive Director of the Indian Overseas Bank stating that certain directives issues by it relating to reservation for Scheduled Castes and Scheduled Tribes persons in the said Bank had been informed to the Bank through a letter dt.18.02.1993; that it had sought a reply of the Bank within 7 days, but the same had not reached the Commission till 04.03.1993; in view of the prima facie examination of the matter and considering the fact that the Bank was reportedly going ahead with the promotion process, the Commission, in exercise of the powers conferred on it under Section 2 of the Constitution (65th Amendment) Act, 1990 directs the Bank to stop the promotion process pending further investigation and final verdict in the matter.
5
(2010) 4 SCC 368
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The Bank challenged it by way a Writ Petition in the High Court of Delhi and on 17.05.1993, the said Writ Petition was allowed and the order dt.04.03.1993 issued by the National Commission for Scheduled Castes and Scheduled Tribes was quashed holding that the said Commission had no power to issue interim orders like the one in question.
This order of the High Court was challenged in the Supreme Court by the appellant quoting Clauses (5) and (8) of Article 338 of the Constitution introduced by the Constitution (65th Amendment) Act, 1990 which are identical to Clauses (5) and (8) of Article 338B of the Constitution dealing with the National Commission for Backward Classes.
The Supreme Court held that a plain reading of Clause (8) of Article 338 indicates that the Commission had the power of the Civil Court for the purpose of conducting an investigation contemplated in sub-clause (a) and an inquiry into a complaint referred to in sub-clause
(b) of Clause (5) of Article 338 of the Constitution; that Sub-clauses (a) to (f) of Clause (8) clearly indicate the area in which the Commission may use the powers of a Civil Court; it has power to summon and enforce attendance of any person from any part of India and examine him on oath and also require the discovery and production of documents etc.,; all these powers are essential to facilitate an investigation or an HACJ & TVK,J ::20:: wp_4364_2021 inquiry, but such powers do not convert the Commission into a Civil Court.
It then held that though Clause (8) of Article 338 uses the words 'the Commission shall ... ... have all the powers of a Civil Court', such powers 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)'; and that all the procedural powers of a Civil Court are given to the Commission for the limited purpose of investigating or inquiring into these matters.
It categorically declared that 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.
51. This Judgment was followed in State Bank of Patiala and others (5 supra) where the Chief Commissioner for Persons with Disabilities, Deharadun exercising powers under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 passed an ex parte order in the nature of a mandatory injunction directing the Bank not to implement its decision to retire the respondent from service until further orders. When the said order was not complied with, the respondent approached the Allahabad High Court by way of a Writ Petition and the said Court directed, by an ex parte interim order, the Bank to implement the order of the Chief Commissioner. When this HACJ & TVK,J ::21:: wp_4364_2021 order also was not complied with, Contempt Applications were filed in the High Court and a direction was issued by the High Court to the Branch Manager of the Bank at Deharadun to appear in person on a date if the interim order was not complied by then. The Bank then approached the Supreme Court.
The Supreme Court held that as an authority functioning under the said Act, the Chief Commissioner had no power to grant any interim direction and he had no power or jurisdiction to issue a direction to the employer not to retire an employee. It relied on its earlier decision in All India Indian Overseas Bank SC and ST Employees' Welfare Association and others (1 supra).
52. Since the wording of Clauses (5) and (8) of Article 338B is identical with the wording of Clauses (5) and (8) of Article 338 considered in the decision of All India Indian Overseas Bank SC and ST Employees' Welfare Association and others (1 supra) ( which was also followed in State Bank of Patiala (5 supra)), the interpretation placed on the language used by the Parliament in Clauses (5) and (8) of Article 338 by the Supreme Court will apply to the language used by the Parliament in Clauses (5) and (8) of Article 338B.
53. No decision of the Supreme Court taking a different view is brought to our notice by the counsel for the respondents.
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54. Also, the decision of the Constitution Bench of the Supreme Court rendered on 05.05.2021 in Dr. Jaishri Laxmanrao Patil (2 supra) did not deal with this aspect of the matter though there is a reference to Article 338B in the Judgment. The Supreme Court in the said case was dealing with other issues such as (i) whether reservation under Article 16(4) of the Constitution should be permitted to exceed 50% and in what circumstances and (ii) whether the reservation provided by the State of Maharashtra to Marathas in the State Services is constitutionally valid etc. Therefore, the said decision cannot be of any assistance of the respondents.
55. Accordingly, we hold on point (a) that the National Commission for Backward Classes is not conferred with any power under Article 338B of the Constitution to grant orders in the nature of injunctions, temporary or permanent, prohibitory or mandatory, put on hold or stop orders of any nature in spite of the use of the words in Clause (8) of Article 338B that 'the Commission shall ... ... have all the powers of the Civil Court trying a suit'. All the procedural powers of the Civil Court which are given to the said Commission are only for limited purpose of investigating and inquiring into the matters specified in Clause (5) of Article 338B and cannot be expanded by way of inference to include power to grant orders in the nature of injunctions, temporary or permanent, prohibitory or mandatory, to put on hold or stop orders of any nature.
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56. Point (a) is answered accordingly in favour of the petitioner and against the respondents.
Point (b):
57. We shall now consider point (b) i.e.,:
"Whether Rule 3.2.7 of the Rules of Procedure of the National Commission for Backward Classes notified vide Notification F.No.NCBC/7/57/2019-RW MISC in so far as it authorizes the said Commission to prohibit taking of any action by any party till the completion of the enquiry in the matter before it, is ultra vires or intra vires Article 338B of the Constitution of India ?"
58. In view of the above finding on point (a), we hold on point (b) that when there is no substantive power or jurisdiction conferred on the Commission under Art.338B of the Constitution to grant orders in the nature of injunctions, temporary or permanent, prohibitory or mandatory, put on hold or stop orders of any nature, by way of subordinate Legislation or by exercising rule making power under Clause (4) of Article 338B, the Commission cannot confer power on itself to prohibit taking of any action by any Authority till the completion of inquiry in the matter by it.
59. So we hold that Rule 3.2.7 of the Rules of Procedure of the National Commission for Backward Classes notified vide Notification F.No.NCBC/7/57/2019-RW MISC in so far as it authorizes the said Commission to prohibit taking of any action by any party till the HACJ & TVK,J ::24:: wp_4364_2021 completion of the enquiry in the matter before it, is ultra vires Article 338B of the Constitution of India.
60. Point (b) is answered accordingly in favour of the petitioner and against the respondents.
Point (c):
61. Point (c) is as under:
"Whether the orders ref. NCBC/Member(AT)/2020/File-215 dt.02.02.2021 and 05.02.2021 passed by the 2nd respondent Commission with respect to recruitment to various posts being carried out by the petitioner vide Notification No.I/2020 dt.23.05.2020 is arbitrary, illegal and without jurisdiction ?"
62. In view of the findings on Points (a) and (b), we hold that the orders ref. NCBC/Member(AT)/2020/File-215 dt.02.02.2021 and 05.02.2021 passed by the 2nd respondent Commission with respect to recruitment to various posts being carried out by the petitioner vide Notification No.I/2020 dt.23.05.2020 are without jurisdiction since Rule 3.2.7 in so far as it conferred on the said Commission the power to issue prohibitory orders prohibiting taking of any action / injunction / put on hold / stay orders has been held to be ultra vires Article 338B of the Constitution of India. Accordingly, the said orders are set aside.
63. Point (c) is answered accordingly.
HACJ & TVK,J
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Conclusion
64. Therefore, the Writ Petition is allowed; Rule 3.2.7 of the Rules of Procedure of the National Commission for Backward Classes notified vide Notification F.No.NCBC/7/57/2019-RW MISC in so far as it authorizes the said Commission to prohibit taking of any action by any party till the completion of the enquiry in the matter before it, is declared ultra vires Article 338B of the Constitution of India; and consequently orders ref. NCBC/Member(AT)/2020/File-215 dt.02.02.2021 and 05.02.2021 passed by the 2nd respondent Commission with respect to recruitment to various posts being carried out by the petitioner vide Notification No.I/2020 dt.23.05.2020 are held to be without jurisdiction and are set aside.
65. The order dt.03.03.2021 passed by this Court is modified and the petitioner is not only permitted to continue with the interview process for filling up the posts pursuant to the above Notification, but is also permitted to declare the results of the said exercise.
66. No costs.
67. We make it clear that we have not expressed any opinion on the question whether the petitioner has properly provided reservation to the Other Backward Classes in the process of recruitment to the vacancies in the Cadres of Professor, Associate Professor and Assistant Professor notified vide Notification No.I/2020 dt.23.05.2020 and the said issue is HACJ & TVK,J ::26:: wp_4364_2021 left open for consideration in an appropriate proceeding already initiated/to be initiated by the aggrieved parties.
68. As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed.
_______________________________ M.S.RAMACHANDRA RAO, ACJ _______________________ T.VINOD KUMAR, J Date: 28.09.2021 Ndr