Indian Institute Of Technology vs National Commission For ...
2004 Latest Caselaw 305 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With the consent of learned counsel for the parties, the matter is taken up for final disposal.

3. The present petition raises a legal issue about powers of National Commission for Scheduled Caste and Scheduled Tribes to exercise jurisdiction of review in respect of an earlier order passed by the said Commission.

4. The factual matrix is limited. Respondent No.2 applied for admission to Ph.D (Programme) in the Department of Mechanical Engineering of the petitioner Indian Institute of Technology, Delhi, and was offered admission. On such admission the following communications were issued to respondent No.2 which was accepted by the said respondent.

"Through another letter you have been offered admission to the Ph.D. Programme from the 2nd semester 2001-2002 commencing from 1.01.2002.

I am glad to inform you that you have also been selected for the award of half-time teaching/research assistantship as per rules, for which you will be required to render 8 hours of the work per week outside your normal academic work. In addition, you will also be eligible for contingency grant every year as per rules of the Institute. The above Assistantship has been awarded only for the IInd semester 2001-2002 and will be renewed for the next semesters) subject to your satisfactory academic performance; minimum SGPA of 7.00 in the preceding semester (if assigned course work during that semester) and your satisfactory performance in the discharge of responsibilities assigned under the Assistantship scheme. The maximum period for which this Assistantship can be drawn is 5 years for Ph.D and 4 semester for M.S. (Research) students."

5. In view of the aforesaid, the assistantship had been offered to respondent No.2 subject to the minimum SGPA grade of 7.00 The Ordinance and Regulations for the degree of Doctor of Philosophy of Indian Institute of Technology of Delhi also provided in Regulations 6.3 and 20.1 as under:

"6.3 The minimum CGPA requirement shall be 7.50 on a 10 point scale for admission to the candidacy of Ph.D. Degree. If the CGPA of any student is below 7.00 at the end of any semester, his registration will be terminated with immediate effect. However, if his CGPA is above 7.00 but less than 7.50, he may be asked to take more courses in order to enhance his CGPA to 7.50 or above, subject to the condition that this should be achieved within one semester."

"20.1 Registration of a student/candidate shall be cancelled in any one of the following eventualities, after due approval of Dean PGS&R

(vi) if his CGPA is below 7.00 at any time while doing

course work."

6. In the first semester respondent No.2 was, however, granted only CGPA 3.00. The petitioner complained of discrimination by addressing a representation to respondent No.1 Commission and on such representation respondent No.1 Commission issued a letter dated 01.07.2002 to the petitioner calling for the relevant records since it proposed to hold an enquiry within the parameters of Article 338 of the Constitution of India. The petitioner produced the relevant records and appeared on various dates of hearing and ultimately an order was passed on 23.09.2002 finding no discrimination against respondent No.2. It was noted that respondent No.2 had also made some grievance about the Research Supervisor and findings were recorded by the Commission on both the said aspects and the issue of discrimination. The relevant findings are as under :

"The Registrar pointed out that the petitioner himself has confirmed in the appraisal of the teaching quality of the Research Supervisor stating that Dr. Ravi (Research Supervisor) has great proficiency in the subject and it was outstanding. Moreover, this was after the examination and before the declaration of the results. Had he not been satisfied with the teaching he could have given some other kind of appraisal. I feel that since the petitioner has not got the minimum marks required in the Semester examination, he is unable to continue the course/programme. His contention is that Professor Ravi had agreed to supervise his work in January and on having gone back on his acceptance in March, cannot be accepted. I, therefore, feel that the petitioner has not been allowed to study in the Ph.D because of his failure to get the minimum marks required. Six other students along with him also have been sent out despite having obtained more marks than the petitioner. When the candidates who have obtained even six marks have not been allowed to continue, I do not think that there is any justification to request the authorities to reconsider. The Registrar also said that according to the system followed in the IIT, there is no possibility of conducting re-valuation. Under the given circumstances, I feel that his allegations that his course has been terminated, as he belongs to the SC community, cannot be accepted."

7. It appears that after the said decision, respondent No.2 made another representation and the Chairman of respondent No.1 Commission directed review of the matter. This resulted in issuance of letter dated 13.11.2002 by respondent No.1 Commission to the petitioner. The said letter records that "The matter has been reviewed after perusing the prospectus of the IIT and the following points need further clarification". The petitioner disputed the authority of respondent No.1 Commission to review its own order and sent a letter dated 15.11.2002 in that behalf followed up by a detailed reply dated 02.12.2002. The contention raised in the said reply, as also the contention raised by learned counsel for the petitioner today in Court, is that the Commission has no power of review since such power of review has not been conferred on the Commission under Article 338 of the Constitution of India.

8. It appears that this letter crossed with another letter of Commission which is dated 27.11.2002. In the said letter of 27.11.2002 it was recorded that after perusal of the answer-sheet of respondent No.2, the Chairman was of the view that zero marks awarded by the examiner have no justification at all and the award of zero marks confirms the prejudice on record since it has no rationale behind it. The letter is in the following terms :

"This has reference to the letter cited above followed by discussion in the Commission and letter thereof. This case was again discussed and examined in length by the Hon'ble Chairman. After perusal of the answer sheets of Mr. Kalyansundram and facts on record, Hon'ble Chairman was of the view that the zero marks awarded by the examiner have no justification at all. Further, in presence of several right tick marks in the answer sheet of Mr. Kalyansundram in the subject Numerical Heat Transfer (ME706) and awarding zero marks for the same confirms the prejudice on the record. Thus, awarding zero marks has no rational behind it.

I am further directed to inform you that in absence of any material produce by IIT Delhi which would support the award of zero marks, the Commission has been compelled to conclude that discrimination has been ensured against an SC student and therefore, advise you to admit and permit continuance to Mr. Kalyansundram to the Ph.D. Course on the same registration along with fellowship, hostel accommodation and other consequential benefits. This may be implemented immediately and without any further delay. Decision of the ITT-Delhi be communicated to the Commission."

9. The petitioner addressed letter dated 04.12.2002 bringing to the notice of respondent No.1 Commission that the letter dated 02.12.2002 has apparently crossed the earlier letter of 27.11.2002 and the same should be considered. There were certain further communications more or less reiterating the same position and finally respondent No.1 Commission issued a summon dated 04.02.2003 to the Director of petitioner Institute for once again production of records.

10. Learned counsel for the petitioner submits that the issue of discrimination was fully examined by the Commission before passing of the order on 23.09.2002 and reasons have been recorded for the same. The same did not call for any review. It is further contended that respondent No.1 Commission in fact does not have power to such review.

11. I have considered the submissions advanced by learned counsel for the parties.

12. In so far as the issue of jurisdiction of the Commission to review its order is concerned, there can be no doubt that the review power has to be specifically conferred and cannot be inferred. In this behalf learned counsel for the petitioner has rightly placed reliance on the judgment of the Supreme court in H.C. Suman and Another Vs. Rehabilitation Ministry Employees' Cooperative House Building Society Ltd, New Delhi & Others, (1991) 4 Supreme Court Cases 485, where the Supreme Court came to the conclusion that it is a settled law that once the quasi judicial order passed, having become final, cannot be reviewed by the authority passing the order unless power of review has been specifically conferred.

13. It has thus to be seen as to whether any such power has been conferred on the Commission under Article 338 of the Constitution of India. Article 338 provides for the Constitution of National Commission for Scheduled Caste and Scheduled Tribes. In this behalf, it may be noticed that subsequently two Commissions have been created through 89th amendment of the Constitution of India. But that in my considered view, it would have no impact in this matter since the order was passed by the then existing Commission and the validity of the order has to be tested as on the date when the notice was issued.

14. Article 338(8) provides for certain power of civil court on the Commission which are as under :

"(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 95), 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 documents;

(c) receiving evidence on affidavits;

(d) requisitioning any public 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.

15. It will thus be seen from the aforesaid that it is only in specific matters that the power of civil court has been conferred on respondent No.1 Commission. This aspect has also to be examined keeping in mind the duties of the Commission set out in Article 338(5) (5) which has to investigate and monitor all matters relating to safeguarding the rights of the scheduled caste and scheduled tribes and to enquire into specific complaint with respect to deprivation of the rights and safeguarding. The jurisdiction is advisory in nature but it is only for the purpose of investigating of the complaint that the powers of civil court have been conferred in respect of certain matters.

16. The aforesaid is in fact no more res integra in view of the judgment of the Supreme Court in All India Indian Overseas Bank SC and St. Employees' Welfare Association and Others, (1996) 6 Supreme Court Cases 606, where the Supreme Court observed in para 6 as under :

"6. Sub-clauses (a) to (f) of clause (8) clearly indicate the area in which the Commission may use the power of a civil court. The Commission has the power to summon and enforce attendance of any person from any part of India and examine him on oath; it can require the discovery and production of documents, so on and so forth. All these powers are essential to facilitate an investigation or an inquiry. Such powers do not convert the Commission into civil court."

17. The said judgment dealt with the issue of power of Commission to grant interim orders and it was held that there is no such powers in existence.

18. In view of the aforesaid position, it is clear that no power of review has been conferred on the Commission under Article 338(8) of the Constitution of India and thus there can be no question of Commission starting the process once again on review.

19. This aspect may be looked into from another point of view. In case it is said that there were certain further investigations to be carried out, no fresh material has really been brought on record for such further investigation. The matter relates to the same very issue and interpretation of the Regulations of the petitioner. The notice dated 13.11.2002 proceeds on a wrong premise as if the whole thing can be re-opened and the fact that the approach is erroneous is also apparent from the subsequent communication dated 27.11.2002 of respondent No.1 Commission. The observations made in the said letter show that the Commission sought to really sit in judgment over the quantum of marks to be assigned to respondent No.2. The Commission is not an expert body to sit as an appellate authority over the marks to be assigned by the competent professors of the petitioner. The conclusion that there is prejudice caused has been arrived at only on the basis that zero marks should not have been assigned to respondent No.2. This approach, in my considered view, is misconceived.

20. In view of the aforesaid, I am of the considered view, that respondent No.1 Commission cannot further investigate into the matter, the complaint of respondent no.2 having already been investigated and the conclusion arrived at by the order dated 23.09.2002. The communications issued after the order dated 23.09.2002 and the summons pursuant thereto are quashed.

21. The rule is made absolute leaving the parties to bear their own costs.

CM No 1780/2003

No further orders are called for in this application in view of the disposal of the writ petition.

Application stands disposed of.