IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.9379 of 2009 (O&M) Date of decision: 26.10.2009 Tirath Singh. -----Petitioner Vs. State of Punjab and others. -----Respondents AND C.W.P. No.9389 of 2009(O&M) Mohan Lal Sharma. -----Petitioner Vs. The State of Punjab and others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. G.K. Chatrath, Sr. Advocate with Ms. Anu Chatrath, Advocate for the petitioner in CWP No.9379/09 & respondent No.4 in CWP No.9389/09. Mr. Pawan Kumar, Sr. Advocate with Mr. Swapan Shorey, Advocate for respondent No.5 in CWP No.9379/09 & for the petitioner in CWP No.9389/09. Mr. Suvir Sehgal, Addl.A.G., Punjab. --- ORDER: CWP No.9379 & 9389 of 2009 1. This order will dispose of CWP No.9379 of 2009 filed by Tirath Singh and CWP No.9389 of 2009 filed by Mohan Lal Sharma, as both the petitions involve same issue i.e. validity and effect of promotion of Mohan Lal Sharma to the post of Director, Economic and Statistical Organisation. 2. Grievance in C.W.P. No.9379 of 2009 is that the appointment of Mohan Lal Sharma was against roster point for General Category candidates and on that account, he was liable to be reverted and case of Tirath Singh for promotion as Joint Director w.e.f. 20.10.2006 was liable to be considered in accordance with law laid down by the Hon’ble Supreme Court in R.K. Sabharwal v. State of Punjab and others 1995(2) SCC 745 and M. Nagraj v. Union of India (2006) 8 SCC 212. 3. It is also clear from the record that the matter was brought before Punjab State Commission for Scheduled Castes constituted under the provisions of Punjab State Commission for Scheduled Castes Act, 2004 (for short, “the Act”) and the said Commission passed an ‘order’ under Section 10(2)(h) of the Act, holding that there was violation of provisions of Section 7(1) and (2) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 and attracted penalty under Section 8 of the said Act. Recommendations were, accordingly, made in the light of observations in the said order. 4. In C.W.P. No.9389 of 2009, Mohan Lal Sharma challenged the ‘order’ of the Commission dated 1.6.2009 on the 2 CWP No.9379 & 9389 of 2009 ground that the Commission had no adjudicatory power or power to issue direction and has only power of investigation, which could thereafter lead to making a recommendation, as held by the Hon’ble Supreme Court in All India Indian Overseas Bank SC and ST Employees Welfare Association and others v. Union of India and others (1996) 6 SCC 606. In the said judgment, issue of powers of Commission was examined. It was observed that the power of Civil Court was available only for the purpose of investigation. Observations of the Hon’ble Supreme Court are as under:- 9. The judgment in the case of M.V. Rajwade AIR 1954 NAG 71 was referred to with approval by this Court in Baliram Waman Hiray (Dr.) v. Justice B. Lentin 1988) 4 SCC 419. The question in that case was whether the Commission of Inquiry constituted under Section 3(1) of the Commissions of Inquiry Act, 1952 was a court for the purposes of Section 195(1) (b) Criminal Procedure Code, 1973. It was contended before the Court that sub-section 4 of Section 5 of the Commission of Inquiry Act created a legal fiction by which the Commission of Inquiry was deemed to be a civil court for all purposes. It was held that the words “for all purposes” are not there in the first part of sub- section (4) and the Court cannot, in the guise of interpreting the provision, supply any casus omissus. The Court went on to say that the purpose of creating the fiction was reflected in the second part of sub- clause (4), viz., for the purpose of proceedings under Section 482 of the old Code and Section 346 of the new Code of Criminal Procedure. 3 CWP No.9379 & 9389 of 2009 10. Interestingly, here, in clause (8) of Article 338, the words used are “the Commission shall..... have all the powers of the Civil Court trying a suit”. But the words “all the powers of a Civil Court” 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”. 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 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. 11. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4.3.1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed. No costs.” 5. The question for consideration is whether promotion of Mohan Lal Sharma was valid and whether Tirath Singh was entitled to be given promotion? 6. Learned counsel for the State points out that in the light of recommendations of the Commission, Show Cause Notice dated 8.6.2009 has been issued to the petitioners in CWP No.9389 of 2009 and after considering his view point, decision will 4 CWP No.9379 & 9389 of 2009 be taken in the matter in accordance with law within two months. Recommendation of the Commission was not being considered to be ‘order’ or ‘direction’, but was being considered on its merit. Case of the petitioner in CWP No.9379 of 2009 was inter-linked to the said decision and his view point will also be considered. 7. Since the issue of promotion to the post of Director, Economic and Statistical Organisation is pending consideration with the State Government, on which decision is proposed to be taken in two months, no further order is called for, at this stage. 8. The petitions are disposed of. (ADARSH KUMAR GOEL) JUDGE October 26, 2009 ( GURDEV SINGH ) ashwani JUDGE 5