WPMS/3396/2019
2022 Latest Caselaw 2584 UK

 IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
       ON THE 23RD DAY OF AUGUST, 2022
                           BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       Writ Petition (M/S) No. 3396 of 2019

BETWEEN:

State of Uttarakhand & others.                   ....Petitioners
      (By Mr. Yogesh Tewari, Standing Counsel)



AND:

Uttarakhand Minority Commission
Dehradun and others.                          ....Respondents
      (Mr. Ganesh Kandpal, Advocate for respondent no. 1 & and
      Mr. Ramji Srivastava, Advocate for respondent no. 2)


                            JUDGMENT

Heard learned counsel for the parties.

2. This writ petition has been filed by State of Uttarakhand challenging an order passed by Uttarakhand Minorities Commission. By the said order dated 31.08.2018, Chief Education Officer, Dehradun was directed to appoint respondent no. 2 on the post of Assistant Teacher, L.T. Grade.

3. Facts, on which there is no dispute is that, two persons, namely respondent no. 2 and one Smt. Pushpa Kathait were appointed as teacher by Parent Teacher Association of a Government Aided Institution, namely- Janta Inter College, Malhan, Dehradun, to impart instructions

in Science subject to the students upto 10th Standard, as one post of Assistant Teacher, L.T. Grade (Science) was lying vacant since 1997. PTA Teachers were paid remuneration by the Parent Teachers Association, from its own sources.

4. Government of Uttarakhand decided to grant remuneration to such PTA Teachers, who were appointed against a substantive vacancy on a teaching post upto certain date and possessed academic qualification necessary for regular appointment to such post. In terms of the policy decision, a list of such PTA Teachers for the State, was prepared, who were found eligible for payment of salary from State Exchequer. The said list mentioned names of 590 Teachers, including respondent no. 2 and Smt. Pushpa Kathait. Since both of them were appointed as PTA Teacher against the same vacancy, therefore, anyone could have received salary from State Exchequer. Thus, dispute arose as to who would be entitled to honorarium from State Exchequer.

5. Respondent 2 was granted salary by the State Government for some time, however, on a complaint made by Smt. Pushpa Kathait, payment of salary, from Government Exchequer to respondent no. 2, was stopped. This dispute was taken by respondent no. 2 to Uttarakhand Minority Commission by making a complaint and the Commission directed the Chief Education Officer, Dehradun to appoint respondent no. 2, as per Rules, on the post of Assistant Teacher. This order

was passed by Uttarakhand Minority Commission on 31.08.2018 which has been challenged by the State Government.

6. Thus, there was a contest between respondent no. 2 and Smt. Pushpa Kathait for salary from Government Exchequer. Respondent no. 2 contended that since he was appointed earlier in point of time, therefore, he alone is entitled to salary, while according to Smt. Pushpa Kathait, she had a better claim for salary from State Exchequer, as she is educationally qualified for appointment to the post of Assistant Teacher L.T. Grade, whereas respondent no. 2 is not qualified, as he did not possess B.Ed. Degree at the time of his appointment in 2003. Thus, the dispute was which of the two persons has a better claim for salary from State Exchequer.

7. In the humble opinion of this Court, such a dispute could not have been decided by Uttarakhand Minority Commission in the absence of power to adjudicate, conferred by the statute. Even otherwise also, one of the facets of principle of natural justice is that no one should be condemned unheard. In the present case, no hearing was given to Smt. Pushpa Kathait by the Commission, while deciding the lis in favour of respondent no. 2.

8. Uttarakhand Minorities Commission is a statutory body established under Uttarakhand Commission for Minorities Act, 2002. Sub-section

(1) of Section 9 of the said Act lays down the functions of the Commission; while, sub-Section (2) of Section 9 provides that the recommendations made by the Commission shall be laid before the State Legislature along with a memorandum explaining the action taken or proposed to be taken on the recommendations and also the reason for non-acceptance of any of such recommendations. Sub-section (3) of Section 9 provides that the Commission while performing any of the functions as mentioned in Clause (a),

(b) & (d) of sub-section (1), shall have the powers of civil Court trying a suit. The functions of the Commission enumerated in sub-section (1) of Section 9 are extracted below:-

"9. Functions of the Commission. - (1) The Commission shall perform all or any of the following functions namely: -

                 (a) evaluate      the    progress of      the
                 development        of      minorities       in
                 Uttarakhand;

                 (b) monitor     the    working of the

safeguards in respect of minorities provided in the constitution and in laws enacted by the State legislature;

(c) make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Government;

(d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities;

(e) cause studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal;

(f) conduct studies, research and analysis on the issues relating to socio-economic

and educational development of minorities;

(g) suggest appropriate measures in respect of any minority to be undertaken by the Government;

(h) make periodical or special reports to the Government on any matter pertaining to minorities and in particular difficulties confronted by them; and

(i) any other matter which may be referred to it by the Government."

9. Although, under sub-section (3) of Section 9, the Commission has been conferred powers of civil Court, however, those powers have to be exercised for summoning and enforcing the attendance of any person; requiring the discovery and production of any document; receiving evidence on affidavits; requisitioning any public record or copy thereof; issuing commissions for examination of witnesses and documents or for any other matter, which may be prescribed. However, from the scheme of aforesaid Act, it is apparent that Commission has no power to adjudicate disputed claims by two or more persons.

10. The Commission has been entrusted the task of evaluating progress/development of minorities, monitor the work of safeguards in respect of minorities provided in the Constitution; make recommendations for the effective implementation of such safeguards etc., however, the Act does not authorise the Commission to decide a lis between two or more private individuals. In other words, Commission is neither

judicial nor quasi-judicial authority to adjudicate upon disputed facts or rival claims. This position is apparent from Section 9(2) of the Act which provides that the Commission can make recommendations, which however, will not be binding upon the State Government.

11. Hon'ble Supreme Court in the case of Ram Krishna Dalmia v. Justice S.R. Tendolkar reported in AIR 1958 SC 538 while dealing with the provisions contained in The Commission of Inquiry Act, 1952 held as under:-

"8. ...The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn, between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case and the elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by and under the American Constitution appears to us, with respect, wholly inappropriate and unnecessary and we do not feel called upon, on the present occasion, to express any opinion on the question whether even in the absence of a specific provision for separation of powers in our Constitution, such as there is under the American Constitution, some such division of powers -- legislative, executive and judicial -- is, nevertheless implicit in our Constitution. In the view we have taken it is also not necessary for us to consider whether, had the Act conferred on the appropriate Government power to set up a Commission of Inquiry with judicial powers,

such law could not, subject, of course, to the other provisions of the Constitution, be supported as a law made under some entry in List I or List III authorising the setting up of courts read with these two entries, for a legislation may well be founded on several entries."

12. In the case in hand, there were competing claims raised by Smt. Pushpa Kathait and respondent no. 2 for getting honorarium from State exchequer. Such a lis could not have been decided by the Uttarakhand Minorities Commission on a complaint made by respondent no. 2. Thus, the impugned order has been passed by the Commission by travelling beyond the scope of its powers.

13. Even otherwise also, Smt. Pushpa Kathait was not heard by the Commission before passing the impugned order, although her interest was vitally involved in the matter.

14. For the aforesaid reasons, the impugned order dated 31.08.2018 passed by Uttarakhand Minorities Commission cannot be sustained in the eyes of law.

15. Accordingly, writ petition is allowed. The impugned order dated 31.08.2018 is set aside. Respondent no. 2 shall be at liberty to approach the Competent Authority for resolution of the dispute.

(MANOJ KUMAR TIWARI, J.) Aswal