Shri Ram College Of Commerce vs Union Of India And Ors.
2013 Latest Caselaw 4622 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 6298/1998

%                                                  5th October , 2013

SHRI RAM COLLEGE OF COMMERCE                             ..... Petitioner
                  Through: None.


                          Versus


UNION OF INDIA AND ORS.                            ......Respondents
                  Through:               None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.           Petitioner is Shri Ram College of Commerce.           Petitioner-

college impugns the order dated 8.10.1998 passed by the respondent

No.2/National Commission for Scheduled Castes and Scheduled Tribes

directing appointing of SC candidates against reserved posts.   The

impugned order was passed pursuant to the complaint filed by the

respondent No.4-Ms. Sunita Mehra.

2.           Supreme Court in the recent judgment in the case of State Bank

of Patiala and Ors. Vs. Vinesh Kumar Bhasin (2010) 4 SCC 368 has held

W.P.(C) No.6298/1998                                            Page 1 of 5
 that national commissions only act as per the powers conferred to them

under their respective Acts and they do not have powers to give

directions/injunctions. In the case of Vinesh Kumar Bhasin (supra), an

earlier judgment of the Supreme Court with respect to the respondent No.2

herein has been referred to that respondent No.2/National Commission for

Scheduled Castes and Scheduled Tribes does not have powers to issue

directions for appointment etc. This judgment of the Supreme Court is in

the case of All India Indian Overseas Bank SC and ST Employees'

Welfare Assn. Vs. Union of India (1996) 6 SCC 606. The relevant paras in

the case of Vinesh Kumar Bhasin (supra) are as under:-


 "12. Under the Rules, an officer of the Bank, shall retire on
 completion of 30 years of service. The respondent was accordingly
 retired on completion of thirty years. He was not denied any retiral
 benefits. He was not entitled, as of right, to continue beyond thirty
 years of service. In fact, he did not want to continue in service, as his
 grievance was that he ought to have been permitted to retire under the
 Exit Policy Scheme. The grievance of the respondent had apparently
 nothing to do with his being a person with a disability.

 13. Prima facie neither Section 47 nor any other provision of the
 Disabilities Act was attracted. But, the Chief Commissioner chose to
 issue a show cause notice on the complaint and also issued an ex parte
 direction not to give effect to the order of retirement. He overlooked
 and ignored the fact that the retirement from service was on
 completion of the prescribed period of service as per the service
 regulations, which was clearly mentioned in the letter of retirement
 dated 17.11.2006; and that when an employee was retired in
W.P.(C) No.6298/1998                                             Page 2 of 5
  accordance with the regulations, no interim order can be issued to
 continue him in service beyond the age of retirement.

 14. The Chief Commissioner also overlooked and ignored the fact
 that as an authority functioning under the Disabilities Act, he has no
 power or jurisdiction to issue a direction to the employer not to retire
 an employee. In fact, under the Scheme of the Disabilities Act, the
 Chief Commissioner (or the Commissioner) has no power to grant any
 interim direction.

 15. The functions of the Chief Commissioner are set out in
 Sections 58 and 59 of the Act. Section 58 provides that the Chief
 Commissioner shall have the following functions:

   "58. (a) coordinate the work of the Commissioners;

   (b) monitor the utilisation of funds disbursed by the Central
   Government;

   (c) take steps to safeguard the rights and facilities made available
   to persons with disabilities;

   (d) submit: reports to the Central Government on the
   implementation of the Act at such intervals as the Government may
   prescribe."

 16. Section 59 provides that without prejudice to the provisions of
 Section 58, the Commissioner may of his own motion or on the
 application of any aggrieved person or otherwise look into complaints
 and take up the matter with the appropriate authorities, any matters
 relating to (a) deprivation of rights of persons with disabilities; and (b)
 non-implementation of laws, rules, bye-laws, regulations, executive
 orders, guidelines or instructions made or issued by the appropriate
 Governments and the local authorities for the welfare and protection
 of rights of persons with disabilities. The Commissioners appointed by


W.P.(C) No.6298/1998                                               Page 3 of 5
  the State Governments          also    have    similar   powers     under
 Section 61 and 62.

 17. Section 63 provides that the Chief Commissioner and the
 Commissioners shall, for the purpose of discharging their functions
 under this Act, have the same powers as are vested in a court under
 the Code of Civil Procedure while trying a suit, in regard to the
 following matters:

    "63.(a) summoning and enforcing the attendance for witnesses;

    (b) requiring the discovery and production of any document;

    (c) requisitioning any public record or copy thereof from any court
    or officer;

    (d) receiving evidence on affidavits; and

    (e) issuing commissions for the examination of witnesses or
    documents."

 Rule 42 of the Persons with Disabilities (Equal opportunities,
 Protection of Rights and Full Participation) Rules, 1996 lays down the
 procedure to be followed by the Chief Commissioner.

 18. It is evident from the said provisions, that neither the Chief
 Commissioner nor any Commissioner functioning under the
 Disabilities Act has power to issue any mandatory or prohibitory
 injunction or other interim directions. The fact that the Disabilities Act
 clothes them with certain powers of a civil court for discharge of their
 functions (which include power to look into complaints), does not
 enable them to assume the other powers of a civil court which are not
 vested in them by the provisions of the Disabilities Act. In All India
 Indian Overseas Bank SC and ST Employees' Welfare Association v.
 Union of India 1996 (6) SCC 606 this Court, dealing with


W.P.(C) No.6298/1998                                               Page 4 of 5
  Article 338(8) of the Constitution of India (similar to Section 63 of the
 Disabilities Act), observed as follows:

     "It can be seen from a plain reading of Clause (8) that the
     Commission has 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 Article338 of the Constitution

       *                   *                   *                    *

     10.      .... 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 no 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."

 19. The order of the Chief Commissioner, not to implement the order
 of retirement was illegal and without jurisdiction."

3.            In view of the aforesaid judgments of the Supreme Court in the

cases of Vinesh Kumar Bhasin (supra) and All India Indian Overseas

Bank SC and ST Employees' Welfare Assn. (supra), this writ petition is

allowed and the impugned order passed by the respondent No.2 dated

8.10.1998 is set aside. Parties are left to bear their own costs.




OCTOBER 05, 2013                                VALMIKI J. MEHTA, J.

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