DBCWP NO.11152/08. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R D.B. CIVIL WRIT PETITION (PIL) NO.11152/2008. Akhil Bhartiya Balmiki Mahasabha (Regd.) Vs. National Commission for Scheduled Caste & Anr. Date of order:- October 24, 2008. PRESENT HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Mr. Chetan Bairwa for the petitioner. ***** BY THE COURT :- (Per Mohammad Rafiq J.) Reportable This writ petition has been filed by Akhil Bhartiya Balmiki Mahasabha with the prayer that the National Commission for Scheduled Castes be directed to submit its recommendation to the President of India for giving separate quota of reservation to the people belonging to 'harijan' community in the government services according to the ratio of their population out of the total reservation meant for Scheduled Castes and the State of Rajasthan may also be directed to give separate quota of reservation for such community out of the reservation meant for Scheduled Castes in the State. DBCWP NO.11152/08. 2 2) Shri Chetan Bairwa, learned counsel for the petitioner has argued that the sweeper community stands on lowest pedestal in the caste system of hindu society. The Sweepers are also known as Balmiki, Mehtar, Chuda and Harijans etc. This community is engaged in the work of cleaning roads & drains and removing dirt and filth. This community has suffered ignominy for ages inasmuch as, not only the general hindu society but also other communities in the Scheduled Castes, have treated them unfavourably as untouchables. As a result, their children are not able to study in schools and secure necessary education of the quality that may enable them to compete with other communities included in the Scheduled Castes such as cobbler, washer man, weaver, meat seller, barber etc. Resultantly, Article 16(4) of the Constitution of India, which was specifically engrafted into the Constitution with a view to bringing about the equilibrium in the society, has not been implemented in desired manner and spirit. Most of the quota of Scheduled Castes, whether in appointments or admissions, is consumed by other communities than the 'harijans' because they are not able to compete with them in terms of merit. The State of Punjab vide Notification dated 5/10/2006 has provided that 50% of the vacancies reserved for Scheduled Castes category in direct recruitment shall be first offered to Balmikis and Mazbhi Shikhs i.e. Sweeper Community in DBCWP NO.11152/08. 3 Punjab, if available. Respondents ought to make a similar provision for appointment in the services of the Government of India and the State Government. Inspite of the fact that petitioner has served upon them a notice for demand of justice, no action has been taken by the respondents so as to redress their grievances. Hence, this writ petition. 3) We have given our anxious consideration to the arguments aforesaid and perused the material on record. 4) In our considered view, Article 16(4) of the Constitution of India is merely an enabling provision, which enables the State to provide for making of the reservation in appointments and if the State decides to so provide the reservation, it also decides the proportion in which such reservation has to be provided. It is not in dispute that 'harijans' are included in the Scheduled Castes in the presidential order providing for such reservation, which has also been adopted by the State of Rajasthan. Whether or not, separate quota should be earmarked out of the seats reserved for Scheduled Castes exclusively for 'harijans' is also therefore a policy decision to be taken by the Union/State Government. What is more, according to the scheme of the Constitution as envisaged in Article 338 thereof, whether Union or State Government, they in this connection, while taking such measures as may be beneficial for DBCWP NO.11152/08. 4 Scheduled Castes for their protection, welfare, development and advancement, are required to take into consideration the recommendations of the National Commission for Scheduled Castes. The National Commission for Scheduled Castes has been purposely constituted to investigate and monitor all matters relating to the safeguards provided under the Constitution or under any other law or under any order of the Government and to evaluate the working of such safeguards, to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes, to participate and advise on the planing process of their socio-economic development and to evaluate the progress of their development under the Union and any State and to present to the President, annually and at such other times, as the Commission may deem fit, reports upon the working of those safeguards. 5) According to sub-Article (6) of Article 338 of the Constitution of India, reports submitted by the National Commission for Scheduled Castes are mandatorily required to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken, on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. According to sub-Article (7) thereof, if such recommendation or any part thereof, relates to DBCWP NO.11152/08. 5 any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State, who shall in the like manner cause it to be laid before the legislature of the State. 6) We are afraid, the kind of mandamus prayed for by the petitioner that National Commission for Scheduled Castes be directed to submit its recommendation to the President of India in the terms aforesaid, would tantamount to usurping the powers of the National Commission for Scheduled Castes specifically constituted for the purpose by the Constitution. National Commission though is a constitutional authority, nevertheless its reports are recommendatory in nature. This Court in exercise of its power of judicial review under Article 226 of the Constitution, cannot require such an authority to act in a particular manner or make a particular recommendation, and based on such a contingency, further issue a writ of mandamus directing the Union or the State Government to act accordingly. Doing so would tantamount to encroaching upon the domain exclusively reserved for such authority and circumscribing its power to deal with the matter on its merits. 7) Nothing has been shown as to if the petitioner ever approached the National Commission for Scheduled Castes for the redressal of the perceived DBCWP NO.11152/08. 6 grievances. The National Commission is equipped with the powers to investigate into and make recommendation about such grievances, if found substantiated, not only to the President of India with respect to appointments in Government of India but also to the Governor of the State for consideration of the State Government in respect of appointments in its services. The remedy of writ petitioner therefore lies with the National Commission for Scheduled Castes, which the petitioner can approach even now by raising all those grounds which have been urged before this Court in this writ petition. For the reasons aforestated, we do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil