Telangana High Court

The English And Foreign Languages ... vs Union Of India on 28 September, 2021

Bench: M.S.Ramachandra Rao, T.Vinod Kumar

       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

(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

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

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:

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.



    (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.

                                                              HACJ & TVK,J
                                ::22::                       wp_4364_2021

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.

                                                                         HACJ & TVK,J
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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