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2013 DIGILAW 880 (ALL)

STATE OF U. P. v. STATE BACKWARD COMMISSION U. P.

2013-03-19

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Hon’ble Devendra Kumar Upadhyaya, J.—As to whether U.P. State Commission for Backward Classes (hereinafter referred to as ‘ Commission’) constituted under U.P. State Commission for Backward Classes Act, 1996 is couched with power and authority under Section 9 read with Section 10 of the said Act to determine a lis relating to service matter of an individual is the question which is engaging attention of this Court in the instant writ petition. 2. Heard Sri Himanshu Shekhar, learned counsel appearing for the petitioners-State of U.P. through Principal Secretary Education Civil Secretariat, Lucknow and others and learned counsel for Commission as well as learned counsel for complainants and perused the documents and material available on record. 3. Facts of the case which led to filing of the instant writ petition whereby a challenge has been thrown by the State of U.P. to an order dated 13.8.2004, passed by the Commission in Case No. 226 of 2000, Ram Sewak and others v. Regional Joint Director of Education, Lucknow, are that a complaint by Sri Ram Sewak, Sri Divakar Singh and Sri Brij Gopal was made to the Commission praying therein that an appropriate direction be issued to make available lecturer’s pay-scale to them and to relieve them of alleged exploitation. In the said complaint, it was stated by the complainants that they had teaching in intermediate classes of Sohan Lal Higher Secondary School, Rajendra Nagar, Lucknow since July, 1998 (hereinafter referred to as ‘Institution’) but no efforts were made by the Management of the said Institution regarding their promotion and payment of pay-scale of lecture grade. It was also stated in the said complaint that the Institution was recognized to run high school and intermediate classes alongwith the financial grant under which the high school and intermediate classes are being run. However, for certain reasons, with the consent and concurrence of the District Inspector of Schools, Lucknow, intermediate classes were suspended for some years. 4. On the aforesaid complaint, it appears that the Commission required District Inspector of Schools and other authorities of the Education Department to furnish their reply, in compliance thereof the District Inspector of Schools submitted his reply by means of a letter dated 17.2.2003, which has been annexed as Annexure 6 to the writ petition. 4. On the aforesaid complaint, it appears that the Commission required District Inspector of Schools and other authorities of the Education Department to furnish their reply, in compliance thereof the District Inspector of Schools submitted his reply by means of a letter dated 17.2.2003, which has been annexed as Annexure 6 to the writ petition. In the said reply, it was stated by the District Inspector of Schools that the Institution in question is recognized for high school classes and is in grant-in-aid scheme for the classes upto high school level. Further, so far as the intermediate classes (11th and 12th) are concerned, the recognition to the Institution though has been granted, however, intermediate classes are not covered by grant-in-aid scheme. It was further replied by the District Inspector of Schools that no posts in the Institution have been sanctioned in lecturer’s grade. It was also informed that the intermediate classes were earlier ordered to be abolished by means of an order dated 12.7.1961 and thereafter, the Institution was recognized for intermediate classes without any grant from the State Government, vide order dated 13.9.1997. The District Inspector of Schools further submitted in his reply to the Commission that the complainants, namely, Sri Ram Sewak, Sri Divakar Singh and Sri Brij Gopal are regular/permanent LT Grade teachers in the Institution and they are getting their salary in the said grade from the State exchequer. He also stated that as per report submitted by the principal of the Institution, the complainants were required to teach the intermediate classes for sometime when the Institution received recognition for intermediate classes without any grant, however, subsequently, the teaching work from the complaints was stopped being taken. The District Inspector of Schools further stated that in case recognition is granted in an Institution without any State grant then in that event payment to the teachers teaching in subjects which are recognized without State grant is made by the college management. Lastly, he categorically stated in his reply that in absence of any sanctioned post of lecturer’s grade available in the institution, the complainants are not legally entitled to be paid the pay-scale of lecturer’s grade. 5. The matter was considered by the Commission which appears to have treated the complaint to be decided as a lis between complainants and authorities of education department of the District, Lucknow. 5. The matter was considered by the Commission which appears to have treated the complaint to be decided as a lis between complainants and authorities of education department of the District, Lucknow. The Commission, thus, passed impugned order dated 13.8.2004 holding therein that the complainants Ram Sewak and Brij Gopal are entitled to be promoted on the lecturer’s grade and they are also entitled to be paid salary of the said grade. 6. Assailing the order dated 13.8.2004, Sri Himanshu Shekher, learned counsel appearing for the State has submitted that though Commission is a creation of statute made by the State Legislature, however, under the statutory scheme of the said legislative enactment under which Commission has been created, the Commission has not been trusted any lawful authority to adjudicate any individual dispute between the parties, specially a dispute of nature which was enquired into and adjudicated by the Commission in the instant case. 7. On the other hand, learned counsels appearing for the complainants-opposite parties and the Commission have tried their best, though in vain, to defend the order dated 13.8.2004, passed by the Commission arguing, inter alia, that the Commission has been vested with ample powers under Section 9 (b and c) of U.P. State Commission for Backward Classes Act, 1996. Drawing attention of the Court to the aforesaid provisions of the Act, it has been submitted by the learned counsels appearing for the Commission as well as complainants that under sub-clause (b) of Section 9 of the Act, the Commission has been vested with ample authority to investigate and monitor all the matters relating to safeguards provided for the backward classes and further that the Commission can enquire into a specific complaint as well and make appropriate orders and recommendations. It has also been stated that the order dated 13.8.2004 is not a direction; rather it is an opinion of the Commission. 8. I have given my anxious consideration to the competing arguments raised by the learned counsels for the respective parties. 9. State Commission for Backward Classes has been constituted by the State Government under Section 3 of the Act. The functions and powers of the Commission can be found in Chapter 3 of the Act. Section 9 contains prescriptions which provide for functions of the Commission. Section 9 of the Act runs as under : “9. 9. State Commission for Backward Classes has been constituted by the State Government under Section 3 of the Act. The functions and powers of the Commission can be found in Chapter 3 of the Act. Section 9 contains prescriptions which provide for functions of the Commission. Section 9 of the Act runs as under : “9. Functions of the Commission.—(1) The Commission shall perform all or any of the following functions, namely— (a) the Commission shall examine requests for inclusion of any class of citizens as a Backward Class in the Schedule and hear complains of wrong inclusion or non-inclusion of any Backward Class in the Schedule and tender such advice to the State Government as it deems appropriate; (b) to investigate and monitor all matters relating to the safeguards provided for the Backward Classes under any law for the time being in force or under any order of the State Government and to evaluate the working of such safeguards; (c) to enquire into specific complaints with respect to the deprivation of rights and safeguards of the backward Classes; (d) to participate and advise on the planning process of socio-economic development of the backward Classes and to evaluate the progress of their development; (e) to present to the State Government annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (f) to make in such reports recommendations, as to the measures that should be taken by the State Government or the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the backward Classes; and (g) to discharge such other function in relation to the protection, welfare, development and advancement of the backward Classes as may be referred to it by the State Government. (2) The State Government shall cause the reports of the Commission to be laid before each House of the State Legislature alongwith it memorandum explaining the action taken or proposed to be taken on the recommendations and the reason for the non-acceptance, if any, of any such recommendations.” 10. (2) The State Government shall cause the reports of the Commission to be laid before each House of the State Legislature alongwith it memorandum explaining the action taken or proposed to be taken on the recommendations and the reason for the non-acceptance, if any, of any such recommendations.” 10. Section 10 of the Act vests certain powers to the Commission and states that while performing its functions under Section 9 of the Act, the Commission shall have all the powers of a Civil Court in respect of matter pertaining to summoning and enforcing the attendance and examining the person on oath, requiring the discovery and production of any document, receiving evidence on affidavits, calling for any public record or its copy, issuing commissions for examination of witnesses and documents and any other matter which may be prescribed. Section 10 of the Act is also quoted herein as under : “10. Powers of the Commission.—The Commission shall, while performing its functions under sub-section (1) of Section 9, 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 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; and (f) any other matter which may be prescribed.” 11. As observed above, the issue which needs an answer in the instant case is as to whether in exercise of its functions and powers under Sections 9 and 10 of the Act, the Commission can entertain and decide an individual dispute pertaining to the alleged grievances of an individual relating to matter concerning his service conditions. 12. So far as Section 10 of the Act is concerned, it gives power to the Commission in certain matters enumerated therein to exercise certain powers of a Civil Court. A close scrutiny of Section 9 of the Act discloses that the basic function of the Commission is to entertain the requests for inclusion of any class of citizens as a backward class in the Schedule and to hear complaints of wrong inclusion or non-inclusion of any backward class in the Schedule of the Act. A close scrutiny of Section 9 of the Act discloses that the basic function of the Commission is to entertain the requests for inclusion of any class of citizens as a backward class in the Schedule and to hear complaints of wrong inclusion or non-inclusion of any backward class in the Schedule of the Act. The Commission has further been mandated to tender its advise to the State Government as may be deemed appropriate by it. The Commission has also been given authority to investigate and monitor all matters relating to the safeguards provided for the Backward Classes under law and also to make an evaluation of the working of such safeguards. It can also enquire into specific complaints with respect to deprivation of rights and safeguards of the Backward Classes. Various other functions have also been prescribed under Section 9 including presentation of reports to the State Government annually on working of such safeguards provided for to the Backward Classes. It is also couched with an authority to make recommendations as regards the measures which should be taken by the State Government for effectively implementing the safeguards and measures for protection, welfare and socio-economic development of the Backward Classes. 13. The functions, thus, entrusted by the State Legislature to the Commission are related to a class action, meaning thereby, the Commission is mandated to discharge its functions in a manner that appropriately ensures safeguarding the protections and rights provided by law to the Backward Classes. The Commission is not vested with an authority or power or jurisdiction to decide an individual dispute, specially the dispute of the nature which has been decided in the instant case which is primarily related to the alleged grievance of the complainant that they are not being promoted to the lecturer grade and further that they are not being paid their salary in the said grade. 14. The intermediate institutions in the State of U.P. are governed by the provisions of U.P. Intermediate Education Act, 1921. The matters relating to service conditions of the teachers and non-teaching staffs working in these institutions are governed by the provisions of U.P. Intermediate Education Act, 1921, the U.P. Secondary Education (Services Selection Boards) Act 1982 and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The matters relating to service conditions of the teachers and non-teaching staffs working in these institutions are governed by the provisions of U.P. Intermediate Education Act, 1921, the U.P. Secondary Education (Services Selection Boards) Act 1982 and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The complainants, or for that matter any other teaching or non-teaching staff, having any grievance concerning the matters related to their service conditions in the institution could approach the authorities of the education department or could take recourse to knocking the doors of the Courts seeking appropriate legal remedy which may be available to such a person under law. However, as observed above, the scheme of the Act under which the Commission has been constituted clearly shows that the Commission has not been constituted to entertain or decide an individual dispute concerning service conditions of the employees including teachers working in an intermediate institutions. 15. The aforesaid view finds support from a Division Bench judgment of this Court in Prof. Banarsi Tripathi v. State of U.P. and others, 2011(1) ADJ 112 (DB). In this judgment, this Court has in unequivocal terms held that investigation and enquiry referred to in various sub-clauses of Section 9 of the Act are not provided to be made in respect of any grievance relating to enforcement of the rights of any individual. It has further been held that Section 9 (a, b, d, e, f and g) also talks of rights and safeguards of Backward Classes and not of an individual. The relevant paragraphs 36, 38, 39, 40, 41 and 42 of the said judgment in the case of Prof. Banarsi Tripathi (supra) are reproduced below : 36. Section 9 (1) (a) of the State Act is couched in the same language as Section 9 (1) of the Central Act, except that the word ‘wrong inclusion’ in place of ‘over-inclusion’. The word more or less carry the same meaning. The State Act provides for further powers to the Commission under Section 9 (1) (b), (c), (d), (e) and (f). The Commission may also discharge such other function under Clause (g) in relation to protection, welfare, development and advancement of the Backward Classes as may be referred to it by the State Government. The State Act provides for further powers to the Commission under Section 9 (1) (b), (c), (d), (e) and (f). The Commission may also discharge such other function under Clause (g) in relation to protection, welfare, development and advancement of the Backward Classes as may be referred to it by the State Government. Sub-clause (b) provide for investigation and monitoring of all matters relating to safeguards provided for backward class under any law for the time being enforced or under the orders of the State Government. Sub-clause (c) provides for enquiry into specified complaints with respect to deprivation of rights and safeguards of the backward classes. Both these sub-clauses provide for class action in respect of safeguards provided for backwardness under any law and in respect of deprivation of their rights. The investigation and enquiry referred to in the sub-clauses are not provided to be made in respect of any complaint relating to enforcement of the rights of any individual. The word ‘backward classes’ has to be read in the context of the complaints of deprivation of rights and safeguards of group of persons. The Commission can inquire into violation of their rights, and submit its report to the State Government, which shall cause the report to be laid before each house of the State Legislature alongwith a memorandum explaining action taken or proposed to be taken and the reasons for the non-acceptance, if any of any such recommendation. The powers enumerated in Section 9 (1) are not to be exercised in respect of complaints of any individuals regarding enforcement of their rights. The deprivation of the rights and safeguards of backward classes do not include an individual complaint of enforcement of any right, and would certainly not include a recommendation or direction to the Court to give payment of salary, appointment, to lodge first information report against any person or to punish a person. It would definitely not include a direction not to appoint a person as Head of the Department or a members of any statutory committee. 38.The object and purpose of establishing the Backward Classes Commission at the Centre and in the State is to examine the requests for inclusion of any class of citizens as a backward class in the lists, and hear complaints of over-inclusion or under-inclusion of any backward class in such lists, and tender such advice to the Government as it deems appropriate. The State Act has extended the functions of State Commission to investigate and monitor all the matters relating to the safeguards provided for the Backward Classes under any law or under any order of the State Government, and to evaluate the working of such safeguards. Section 9 of the State Act further provides to enquire into specific complaints with respect to the deprivation of rights and safeguards of the Backward Classes, to participate and advise on the planning process of socio-economic development of the Backward Classes and to evaluate the progress of their development. The State Commission is also empowered to present to the State Government annually upon the working of those safeguards. The functions enumerated under sub clauses (f) and (g) of Section 9 of the State Act include the powers to make such reports and recommendations, as to the measures that should be taken by the State Government or the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Backward Classes, and to discharge such other function in relation to the protection, welfare, development and advancement of the Backward Classes as may be referred to it by the State Government. 39.The individuals belonging to Backward Classes like all other citizens of the country have the rights, under various statutes and also under Article 226 and a fundamental right under Article 32 of the Constitution of India to raise their grievances and to seek relief from Courts. 40. When the statute includes an explicit function, we must follow and understand that function in the same light and purpose. These functions are restricted to the enumerated functions with the conditions that the Commission shall perform all or any of the functions. The doctrine of ‘noscitur a sociis’, used to interpret statutes provides that, an ambiguous term may be given more precise content by the neighboring words with which it is associated, can be used here to interpret the scope and content of functions of the Commission under Section 9 (1) (c). All the functions under sub Sections (1) (a),(b), and (d) to (g), are class actions. Section 9 (1) (c), also talks of rights and safeguard of backward classes, and not of an individual belonging to backward class. All the functions under sub Sections (1) (a),(b), and (d) to (g), are class actions. Section 9 (1) (c), also talks of rights and safeguard of backward classes, and not of an individual belonging to backward class. The Commission, in our considered opinion therefore, does not have power to investigate, monitor or advise the State Government in respect of any functions other than the functions enumerated in Section 9. Basically the functions of the Central Commission and State Commission is to look into the wrong inclusion or non-inclusion of any Backward Class in the Schedule, and such class action relating to the Backward Classes, which are necessary for protecting their rights given under any law, for their protection, welfare and socio-economic development. The individual complaints regarding non fulfillment of any right guaranteed under Constitution by any law are required to be investigated and redressed in accordance with the process prescribed for adjudication by the Courts of law and not by the Commission. 41. The Commission for the purpose of dealing with the complaints, is not a Court or Tribunal, to adjudicate such complaints. The powers of the Commission under Section 10 of the Act or in respect of investigation and enquiry into a class action, is for the purpose of recommendation, and not for deciding any issue brought before it. The Commission has not been established to substitute the Courts of law nor can be clothed with powers of imposing penalties and punishment, separated and given to Courts under Article 50 of the Constitution of India. 42. The service conditions of the Government servants, employees of any Corporations, Government Societies, Public Sector Undertakings, Local Bodies, or Universities are governed by statutory rules, regulations, statutes, ordinances and Government orders. The State Commission is not empowered and authorised to direct any action to be taken against any employee, on the pretext of oppression, victimization, or protection of the rights of persons of Backward Classes. Any such recommendation will be wholly illegal and will be overreaching the jurisdiction conferred on the Commission. The State Government in such case will act beyond its executive powers and duties to recommend action against individuals. 16. In the aforesaid judgment, it has, thus, clearly been held that the Commission is not a Court or Tribunal to adjudicate individual complaints. Incidentally, it is also noticeable that the aforesaid judgment in the case of Prof. The State Government in such case will act beyond its executive powers and duties to recommend action against individuals. 16. In the aforesaid judgment, it has, thus, clearly been held that the Commission is not a Court or Tribunal to adjudicate individual complaints. Incidentally, it is also noticeable that the aforesaid judgment in the case of Prof. Banarsi Tripathi (supra) also relates to service related grievances of an individual. 17. So far as instant case is concerned, a complaint by complainants was made to the Commission, which is on record as Annexure 5 to the writ petition, perusal of which makes it explicit that grievances of the complainants related to their alleged non-promotion in lecture’s grade and non-payment of salary to them in the said grade. Clearly, the grievance/complaint raised by the complainants was individual in nature and the same concerned the matter relating to their service conditions. 18. A perusal of impugned order dated 13.8.2004, passed by the Commission reveals that the Commission not only required the authorities of the Education Department to submit their reply but also proceeded to decide the complaint as a lis between the complainants and authorities of the Education Department and after discussing the matter at length has given a finding to the effect that the complainants are liable to be promoted in lecturer’s grade and further that they are entitled to the salary of the said grade. The manner in which the Commission appears to have proceeded and recorded its finding leaves no room of doubt that it not only entertained but even decided the individual dispute raised by the complainants in respect of their individual grievances pertaining to their service conditions. 19. In view of discussions made above and having regard to the judgment of Division Bench of this Court in the case of Prof. Banarsi Tripathi (supra), I have no hesitation to hold that the order dated 13.8.2004, passed by the Commission is well beyond its jurisdiction and authority vested in it under the provisions of Act. 20. This, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued and the impugned order dated 13.8.2004, passed by the State Commission for Backward Classes, U.P. in Case No. 226 of 2000, Sri Ram Sewak and others v. Regional Joint Director of Education, Lucknow, is hereby quashed. 20. This, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued and the impugned order dated 13.8.2004, passed by the State Commission for Backward Classes, U.P. in Case No. 226 of 2000, Sri Ram Sewak and others v. Regional Joint Director of Education, Lucknow, is hereby quashed. There will be no order as to cost. —————