Chief Commissioner's Recommendation To Prevent Deprivation Of PwD Rights Binding On Authority Except When Valid Reasons Exist: Delhi HC

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela noted,

“…we are of the considered opinion that the recommendations made by the Chief Commissioner in relation to the exercise undertaken by it under Section 75(1)(a)(b) of the 2016 Act will bind the authority concerned which shall take necessary remedial measures and corrective steps, however, such recommendation may not be acted upon or will not bind the authority concerned only and only in a situation such an authority has valid reasons for not accepting a recommendation which are required to be conveyed to the Chief Commissioner as also to the person aggrieved.”

The brief facts of the case are that the appellant was working at the National Power Training Institute (respondent no. 1) as a Deputy Director. He suffered from 70% permanent disability in his leg.

The respondent-institute transferred him from its Corporate Office at Faridabad to Durgapur. He challenged this transfer before the CCPD, which directed the institute to keep the transfer order in abeyance till the matter was pending before the CCPD.

The respondent-institute then approached the High Court, where a single judge set aside the CCPD's order to the extent it directed the Institute to keep the transfer order of the appellant in abeyance. The single judge had recorded that the CCPD does not have the authority to pass an 'interim order' under Section 76 of the 2016 Act that halts actions such as transfer. The appellant thus filed the present appeal against the single judge's order.

The appellant argued that the single judge's order to the effect that the CCPD does not possess the authority to pass interim order was erroneous. He contended that in view of Sections 75 and 76 of the 2016 Act, CCPD has the power to look into the deprivation of rights of PwDs and direct corrective measures to the concerned authority.

However, the respondent-institute contended that the recommendations of the CCPD under Section 76 are not binding. It further argued that CCPD has no jurisdiction to interfere in the internal management of an organization, especially in service disputes.

Recommendations of CCPD binding under Section 76

Analyzing the provisions of the 2016 Act, the Court was of the view that the recommendations of the CCPD under Section 76 are binding. It stated that based on such recommendations, the concerned authority has to take necessary remedial measures.

It further observed that the authority might not act upon such a recommendation only when a valid reason exists to not accept it. Giving an example, it noted that a case where a PwD employee is transferred due to administrative exigencies is a valid reason for not accepting recommendations of CCPD.

“…for illustration we may observe that in a situation where an employee with disabilities is transferred in administrative exigencies taking into account the need and operational necessity of the organization and the skills and capability of the employee concerned, such a situation may give rise to a valid reason for the origination for not accepting the recommendation made to it by the Chief Commissioner, though, in such a situation reasons are to be conveyed to the Chief Commissioner as also to the person aggrieved.”

CCPD can pass Interim Orders under Section 76

On the power of Chief Commissioner to issue interim orders, it observed that the CCPD has the power to make certain interim recommendations to the authority concerned, which shall then take appropriate remedial measures for implementing such interim orders or recommendations. It noted that if the authority is unable to implement such interim measures, it can do so by giving valid reasons.

“Our finding, thus, is that be it an interim order/recommendation or a final order or recommendation made by the Chief Commissioner, the authority concerned is under statutory obligation to take appropriate remedial measures/corrective steps with the exception that such recommendation may not be acceded to in a situation where the authority concerned has some valid reasons for non-acceptance of an order or recommendation made by the Chief Commissioner which will have to be conveyed both to the CCPD and the person aggrieved.”

CCPD's Jurisdiction in Service Matters

The Court observed that service issues are primarily between the employee and the employer which are governed by statutory rules made under Article 309 of the Constitution or appointment orders, administrative orders or office memorandums. It stated that generally, service matters such as transfer, promotion, grant of pay scale or grant of accelerated promotion are the preserve of the employer.

Nonetheless, it observed that if any rights available to PwD in service-related issues are violated, the 2016 Act should be given effect. It noted that if the provisions of the 2016 Act are not infringed, the transfer due to exigencies of administration is valid. As an example the court said that in a recruitment process, if provision reserving posts/vacancies as per RpwD Act 2016 is not made, the same may amount to infringement of rights of persons with disabilities and accordingly, the interference in such a matter of the CCPD will be permissible, justified and well within the power of the CCPD.

“In a situation where no such infringement is found and transfer is sought to be effected in the exigencies of administration, taking into account the need and requirement of the administration, such transfer may not attract infringement of any right otherwise available to an employee with disability and, therefore, in such a situation, the provisions of the 2016 Act will not be attracted.”

In the present case, the Court stated that the CCPD's order is to be treated as an interim recommendation under Section 76 of the 2016 Act. It said that the order needs to be considered by the National Power Training Institute and in case it is unable to accept the recommendation, it needs to convey the valid reasons to the CCPD.

With these observations, the Court disposed of the petition.

Case title: Mukesh Kumar vs. National Power Training Institute & Ors

Citation: 2025 LiveLaw (Del) 416