NCSC Cannot Direct Payment of Arrears in Service Matters, Supreme Court Rules

A Supreme Court bench of Justices Sanjay Karol and Augustine George Masih holds the National Commission for Scheduled Castes wields only recommendatory, not adjudicatory, power under Article 338.

The Supreme Court has set aside a Bombay High Court order that had upheld directions issued by the National Commission for Scheduled Castes requiring Mumbai Port Authority to pay salary arrears to a demoted SC employee within 30 days. In a judgment dated 28 July 2026 authored by Justice Sanjay Karol, the Court held that the NCSC's powers under Article 338 of the Constitution are recommendatory and advisory in character, and the Commission has no authority to pass binding orders or direct payment of money. The ruling resolves a question that had been contested at least since the NCSC issued its order of 23 October 2024: whether the Commission's constitutional mandate to inquire into complaints of SC employees carries with it an enforcement arm capable of substituting judicial adjudication.

How the Dispute Reached the Court

Madhavi K. Chandorkar, a member of the Scheduled Caste, joined Mumbai Port Authority as a typist-cum-computer clerk on 9 July 1997. Under an Office Memorandum dated 21 January 2002, which gave effect to the Constitution (Eighty-fifth Amendment) Act, 2001, she was promoted to Stenographer Grade-I. That 2002 OM granted SC/ST employees consequential seniority on promotion by reservation, with effect from 17 June 1995, and withdrew a 1997 OM that had directed the opposite.

The 2002 OM was challenged before the Bombay High Court in Writ Petition No. 1164 of 2012 by the Mumbai Port Trust Non-SC/ST Employees Association. The High Court allowed that petition on 30 November/1 December 2016, quashing the 2002 OM. A special leave petition against that judgment is separately pending before the Supreme Court and was expressly kept out of the present proceedings.

To implement the 2016 High Court directions, a circular dated 27 December 2018 was issued by the Deputy Secretary of Mumbai Port Authority. It directed that no promotions would be granted to SC/ST employees except those made in accordance with the 1997 OM, and that all promotions not conforming to M. Nagaraj v. Union of India, AIR 2007 SC 71, would be revisited. A challenge to this circular by the Mumbai Port Trust SC, ST and OBC Welfare Association in Writ Petition (L) No. 121 of 2019 was dismissed by the Bombay High Court on 27 August 2019.

Chandorkar was identified as one of nine stenographers covered by the resetting exercise. A show cause notice was issued to her on 9 March 2020. After a hearing, she was demoted by order dated 11 September 2020 from Stenographer Grade-I to Grade-II, notionally with effect from 19 April 2007 to 30 November 2016.

She then made a representation to the NCSC. After hearing both Mumbai Port Authority and Chandorkar, the NCSC passed an order dated 23 October 2024 containing minutes of its meeting held on 1 October 2024. The Commission directed the port authority to adhere to DoPT reservation guidelines, prepare the reservation roster as per DoPT instructions, grant promotion to Chandorkar to the post of Stenographer and further to PA to HOD as per reservation rules, implement the order and pay arrears within 30 days, and forward the roster for verification to the Ministry of Shipping. An action-taken report was to be submitted within 45 days.

Mumbai Port Authority sought review before the NCSC Chairperson by representations dated 29 November 2024 and 12 December 2024. The status of that review was not before the Court. The authority then challenged the NCSC order before the Bombay High Court. The High Court dismissed the writ petition in its order dated 19 August 2025, holding that the NCSC's minutes did not travel beyond its constitutional powers and that the direction to pay arrears was a restatement of an earlier NCSC order of 1 June 2023 that had become final. Mumbai Port Authority obtained special leave and the matter came before the Supreme Court as Civil Appeal arising out of SLP(C) No. 33359 of 2025.

The Central Question: Does Article 338 Allow the NCSC to Order Enforcement?

The NCSC argued that clause (b) of Article 338(5) — which casts on it a duty to inquire into specific complaints with respect to deprivation of rights and safeguards of Scheduled Castes — contains two limbs: inquiry and safeguarding. It contended that the second limb is an enforcement provision that authorised it to direct payment of arrears.

Mumbai Port Authority's position was the opposite: the NCSC's powers are confined to clause (5) of Article 338 and do not extend to passing binding directions in service matters.

What the Court Held on the Scope of Article 338

The Court rejected the NCSC's two-limb argument. It read Article 338(5) as a whole. Clause (c) uses the words “participate and advise” on socio-economic development; clause (d) requires the Commission to present reports to the President; clause (e) deals with making recommendations to the Union or State for effective implementation of safeguards. These provisions, the Court found, cast the NCSC in a monitoring and advisory role.

Article 338(8) gives the Commission, while investigating or inquiring under clause (5)(a) and (b), the powers of a civil court — but only as enumerated: summoning witnesses, requiring documents, receiving evidence on affidavit, issuing commissions, and similar procedural powers. The Court drew attention to the word “namely” preceding that enumeration, holding that it indicates a closed list. The Commission can record factual findings and then ask the Central or State Government to act. It cannot itself make an order flowing from that evidence.

On the NCSC's argument that “safeguards” in clause (5)(b) is an enforcement limb, the Court said such a reading was “difficult to accept in view of the explicit language of the Article.” The power is to inquire into deprivation of “rights and safeguards”, and the use of the conjunctive “and” means rights and safeguards are to be read together as a bundle, not separated to construct an implied enforcement power.

Sub-clause (a) of Article 338(5) — investigation and monitoring of safeguards — confirmed to the Court that safeguards are a legislative function; the NCSC's role is to monitor that their true intent is being implemented, not to substitute its own determination for a court's.

Precedents Applied

The Court drew on two earlier decisions of coordinate benches. In All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India, (1996) 6 SCC 606, the Court had held that the civil court powers under Article 338(8) are granted for the limited purpose of facilitating investigation and inquiry, and “such powers do not convert the Commission into civil court.” The power of a civil court to grant injunctions — temporary or permanent — was held not to inhere in the Commission.

In Collector v. Ajit Jogi, (2011) 10 SCC 357, dealing with caste certificate verification, the Court had held that the NCSC's power under clause 5(b) allowed it to enquire into complaints and give a report to the Central or State Government requiring effective implementation of safeguards, but went no further. The power to enquire into deprivation of rights did not include the power to decide the caste status of an individual.

The Court also cited Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, where an analogous question arose concerning a State Women's Commission. That Court had held that no implied power to decide complaints could be read into a provision that expressly permitted the Commission only to receive complaints and take up the matter with authorities for remedial measures. The State Commission was not a tribunal of judicial character.

Bringing these threads together, the Court stated that the NCSC and its counterparts under Articles 338A and 338B are constitutional bodies with a socially beneficent purpose, but the Legislature has prescribed a role that is “recommendatory and advisory, but certainly not adjudicatory.”

The High Court's Error

The Bombay High Court's Division Bench had concluded that the NCSC's directions of 23 October 2024 did not go beyond the scope of Article 338, and that the direction to pay arrears within 30 days was merely a restatement of an earlier NCSC order of 1 June 2023 that had become final. The Supreme Court found this reasoning flawed. Whether a prior NCSC order had become final could not cure the constitutional infirmity in the Commission issuing binding payment directions in the first place. The High Court fell in error by upholding directions that exceeded the NCSC's constitutional mandate.

Outcome

The Supreme Court allowed the appeal and set aside the judgment of the Bombay High Court dated 19 August 2025. The NCSC's direction relating to payment of arrears, contained in its order of 23 October 2024, was declared contrary to the provisions of the Constitution and non-est in law. Pending applications, if any, were disposed of. The judgment was delivered on 28 July 2026 by the bench of Justice Sanjay Karol and Justice Augustine George Masih.