Delhi High Court
Ambedkar University Of Delhi vs Govt. Of Nct Of Delhi & Ors. on 19 July, 2019
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6597/2014 and CM APPL. 15694/2014
AMBEDKAR UNIVERSITY OF DELHI ..... Petitioner
Through: Mr Mohinder J.S. Rupal, Mr
Hardik Rupal, Mr Prang andMr
Koushik Ghosh, Advocates.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 19.07.2019
VIBHU BAKHRU, J
1. None appears for the respondents.
2. It is seen that none had appeared for the respondents on the
previous occasions as well. In the circumstances, this Court does not
consider it apposite to defer the hearing of the present petition to await
the representation on behalf of the respondents.
3. The petitioner is a University established by Government of
National Capital Territory of Delhi and had filed the present petition
impugning an order dated 20.08.2014 (hereafter 'the impugned order')
passed by respondent no.2 (Commissioner for Persons with
Disabilities - hereafter 'the Commissioner').
4. The Commissioner had passed the impugned order on a
complaint filed by respondent no.3 (Dr Ram Kishan) alleging that the
petitioner was not implementing the provision of Sections 33 and 39
of the Persons with Disabilities Act, 1995 (hereafter 'the 1995 Act').
5. The petitioner claims that it has complied with the provisions of
Sections 33 and 39 of the 1995 Act and had earmarked posts to be
filled by persons with disabilities. The controversy, essentially, relates
to whether petitioner is required to fill the post of an Associate
Professor (School of Education Studies) by appointing persons with
disabilities.
6. Before proceeding further, it would be relevant to refer to
Sections 33 and 39 of the Act, which reads as under:-
"33. 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) Bearing impairment;
(iii) Loco motor 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.
xxxx xxxx xxxx xxxx
39. All Government educational institutions and other
educational institutions receiving aid from the
Government, shall reserve not less than three per cent seat
for persons with disabilities."
7. It is apparent from the above that Section 39 of the 1995 Act
relates to reserving seats in Educational Institutions. The said Section
would have no relevance to the controversy raised by respondent no.2
which essentially relates to reservations of posts (teaching and non-
teaching) for persons with disabilities.
8. There is no dispute that the petitioner is required to reserve at
least 3% posts for persons with disabilities. On 01.07.2013,
respondent no.3 had filed a complaint before the Commissioner
pointing out that the advertisements issued by the petitioner for filling
up various posts did not indicate post-wise seats that were reserved for
persons with disabilities. It is stated that the petitioner accepted the
above on 08.07.2013 and made a statement before the Commissioner
that it would comply with all provisions of the 1995 Act. The
petitioner also, unequivocally, stated that it would cure the deficiency
in the advertisements issued and indicate the category wise
reservations for disabled persons by issuing a separate advertisement.
9. Thereafter, the Vice Chancellor of the petitioner University
constituted a Committee comprising of experts in the field for, inter
alia, identifying posts to be filled up by persons with specified
disabilities and to implement the reservation policy.
10. On 12.02.2014, the Committee so constituted submitted a report
for implementing the reservation policy and the same was accepted by
the Academic Council of the petitioner on 04.03.2014. The Academic
Council also resolved that specific faculty positions for specific
disabilities be earmarked and further directed that such faculty
positions be identified in consultation with various schools.
11. The petitioner states that thereafter, on 22.05.2014, the Senior
Management Team, comprising of Deans of all schools / Heads of all
division discussed the matter of reserving 3% faculty positions for
persons with disabilities. It was noted that the petitioner had received
clear instructions that seats would have to be filled for both Visually
Handicapped (VH) and Orthopedically Handicapped (OH) for all
categories, namely, Assistant Professor, Associate Professor and
Professors. It was also noted that the seats reserved for persons with
disabilities would have to be filled by following a roster system, that
is, to ensure that vacancies are filled in a numerical order in a manner
so as to ensure that 3% reservation is maintained. The senior
management team considered the list of five positions from different
schools which were identified to be reserved for persons with
disabilities.
12. The details of five posts identified for being reserved for
persons with disabilities are set out below:-
"
School/Subject Name of No. of Category
the Post post(s)
Centre for English Language Associate One VH
Teaching Professor
School of Human Studies Disability Professor One OH
Studies
School of Liberal Studies: Assistant One VH
Comp. Lit. & Trans. Studies Professor
School of Culture and Creative Associate One OH
Expression Professor
School of Law, Governance & Assistant One VH
Citizenship Professor
"
13. The above posts were also notified and a corrigendum was
published in a daily newspaper (The Hindu) on 11.06.2014 and was
also published on the website of the petitioner.
14. Respondent no.3 was not satisfied with the above and once
again filed a representation, inter alia, alleging that reservation had
not been provided for posts identified as per the government norms
and no posts had been reserved for the Discipline of Education. He
also stated that no reservation had been made on the roster points as
per notification dated 29.12.2005 issued by Department of Personnel
and Training (DoPT).
15. The Commissioner accepted the aforesaid contentions and
passed the impugned order directing the petitioner to include the post
of Associate Professor (School of Education Studies) in the
advertisement issued for posts to be filled by appointment of persons
with disabilities. The Commissioner directed that the said posts be
also included in the advertisements by way of a corrigendum.
16. Mr Rupal, learned counsel appearing for the petitioner submits
that the directions issued by the respondents are beyond the powers of
Commissioner as specified under Sections 61 and 62 of the 1995 Act.
He relied on the decision of this Court in Jaikishan Aggarwal v.
Union of India and Ors.: W.P.(C) 8299/2009, decided on 09.07.2018
and the decision of the Supreme Court in State Bank of Patiala and
Ors. V. Vinesh Kumar Bhasin: 2010 (4) SCC 368 in support of his
contention.
17. Section 61 of the 1995 Act specifies the powers of the
Commissioner and Section 62 of the 1995 Act enables the
Commissioner to "look into complaints" with respect to the specified
matters. Sections 61 and 62 of the 1995 Act are set out below:-
"61. The Commissioner within the State shall-
(a) Coordinate with the departments of the State
Government for the programmes and schemes, for the
benefit of persons with disabilities;
(b) Monitor the utilization of funds disbursed by the State
Government;
(c) Take steps to safeguard the rights and facilities made
available to persons with disabilities.
(d) Submit reports to the State Government on the
implementation of the Act at such intervals as that
Government may prescribe and forward a copy thereof to
the Chief Commissioner.
62. Without prejudice to the provisions of section 61 the
Commissioner may of his own motion or on the
application of any aggrieved person or otherwise look into
complaints with respect to matters relating to---
(a) Deprivation of rights of persons with disabilities;
(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, And take up the matter with the
appropriate authorities."
18. It is relevant to note that Section 62 is similarly worded as
Section 59 of the 1995 Act which enables the Chief Commissioner to
look into the complaints with respect to the specified matters.
19. In Shah Afzal (Md.) v. Medical Council of India and Anr.:
2010 VI AD (Delhi) 762, the Division Bench of this Court had
examined the provisions of Section 59 of the 1995 Act and had held
that the Chief Commissioner is empowered to look into complaints
and take up the matter with the appropriate authority, however, the
orders and directions issued by him cannot be elevated to status of an
order passed by a Court. The relevant extract of the said decision is
set out below:-
"27. We also notice that Section 59 begins with the word
"without prejudice to the provisions of Section 58" and
empowers the Chief Commissioner to look into the
complaints (either on his own motion or on an application
by an aggrieved person or otherwise) with respect to
matters relating to (a) deprivation of rights of persons with
disabilities; (b) non-implementation of laws, rules,
byelaws, regulations, executive orders, guidelines or
instructions made or issued by the appropriate
Governments and the local authorities for the welfare and
protection of rights or persons with disabilities and to take
up the matter with the appropriate authorities. We are
mindful of the fact that we are dealing with a beneficial
legislation and, therefore, the provisions should be
interpreted and construed in a manner which advances the
benefits given under the said legislation. Consequently, the
powers and functions of the Commissioner would have to
be given the widest amplitude possible within the four
corners of the provisions of the said Act itself. We cannot,
of course, while giving a liberal interpretation, travel
beyond the provisions of the Act or some other statutory
provisions which could never have been the intention of
Parliament. Therefore, the expressions "look into
complaints" and "to take up the matter with the appropriate
authorities" cannot be elevated to the status of a case in
court and an order or judgment passed by a court. The
Chief Commissioner is certainly required to and is
empowered to look into any transgression of the rights of
persons with disabilities as also to examine the issue of
non-implementation of laws etc. which are for the welfare
and protection of rights of persons with disabilities, but,
having considered the complaint, the Chief Commissioner
is required to take up the matter with the appropriate
authorities so as to prevent and or remove any deprivation
of rights of persons with disabilities and also to ensure
implementation of the laws for the welfare and protection
of the rights of persons with disabilities. There is no doubt
that, for certain purposes, the Chief Commissioner as also
the Commissioners, by virtue of Section 63 of the said Act,
have been given certain powers of a civil court while trying
a suit. However, such powers are exercisable by the Chief
Commissioner for summoning and enforcing the
attendance of witnesses, requiring the discovery and
production of any documents, requisitioning any public
record or copy thereof from any court or office, receiving
evidence on affidavits and issuing commissions for the
examination of witnesses or documents. The powers are
limited to such matters only and do not entail that because
such powers in certain matters have been given to the Chief
Commissioner and the Commissioners, as the case may be,
they are to be equated with civil courts. That is certainly
not the intention of the legislature and that is not how we
read it.
28. xxxx xxxx xxxx xxxx
29. Going back to Section 59 of the said Act, we find that
the Chief Commissioner has only been empowered to look
into complaints and to take up the matter with the
appropriate authorities. Once the Chief Commissioner has
looked into the complaint and has come to a 'decision' and
thereupon the Chief Commissioner takes up the matter with
the appropriate authorities, the said authorities cannot
contend that the view of the Chief Commissioner can be
totally ignored or side-stepped. We feel that once the Chief
Commissioner takes a view on a particular complaint and
then takes up the matter with an appropriate authority, if
such view is permissible in law, then the appropriate
authority would be obliged to redress and remove the
grievance of the complainant. In case the concerned
authority does not take any action whatsoever, it would
then be open to the aggrieved person to approach the High
Court under Article 226 for an appropriate writ, direction
or order, if he makes out a case of deprivation of a right or
non-implementation of laws, rules etc. providing for the
welfare and protection of rights of persons with disabilities.
But, this does not mean that the order or direction given by
the Chief Commissioner, by itself, is elevated to the status
of an order passed by a court."
20. The aforesaid decision was also followed by this Court in
Jaikishan Aggarwal v. Union of India and Ors. (supra).
21. In State Bank of Patiala and Ors. v. Vinesh Kumar Bhasin
(supra), the Supreme Court had referred to the provisions of the 1995
Act and had observed as under:-
"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."
22. In view of the above, the contention that directions issued by
the Commissioner in the impugned order are beyond his powers are
merited. The impugned order is, accordingly, set aside. However, it is
clarified that this would not preclude the Commissioner to take up the
matter with the appropriate authorities for issuance of the necessary
directions. Respondent no.3 is also not precluded from availing all
remedies as available in law.
23. The petition is disposed of with the aforesaid observations.
24. The pending application is also disposed of.
VIBHU BAKHRU, J
JULY 19, 2019
RK
