IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.1101 of 2002. Date of decision: 16.05.2008. Chamba Scheduled Castes Welfare Association & Another ….Petitioners Versus State of H.P. & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioners: Mr.Raman Sethi, Advocate. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. The petitioners have approached this Court with a prayer that respondents-State may be directed to frame a policy or guidelines to be followed by the Panchayati Raj Institutions for reservation of posts of Scheduled Castes and Scheduled Tribes with respect to all posts to be filled-up by the Panchayati Raj Institutions irrespective of the nature of such posts. A writ of prohibition is prayed for against the respondents-State prohibiting it for filling up any post till the reservation policy is finalized; consequential writ in the nature of mandamus directing 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 the State to follow the reservation roster framed by the Union of India has also been prayed for. The factual matrix need not be gone into as most of the averments made in the petition are admitted. What requires to be determined is as to whether this Court has jurisdiction under Article 226 of the Constitution of India to issue writ in the nature of mandamus directing the State to enforce reservation. A Constitutional Bench of the Supreme Court in C.A. Rajendran vs. Union of India and others, AIR 1968 SC 507, has held that:- “6. … … … … … … … Our conclusion therefore is that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage or recruitment or at the stage of promotion. In other words Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case”. 3 The matter is now beyond the pale of doubt that Article 226 of the Constitution does not vest jurisdiction in this Court to issue a writ directing the State to provide for reservation, as it is a matter in the domain of policy/Rules framed or to be framed within the Constitutional limits. Learned counsel appearing for the petitioners seeks assistance from the decision of the Supreme Court in Post Graduate Institute of Medical Education & Reserarch, Chandigarh vs. Faculty Association and Others, (1998)4 SCC 1. The particular he submits that there is Constitutional obligation on the respondents to enforce reservation. He relies upon the dictum of the Court in para 32 of the judgment which reads: “32. Articles 14, 15 and 16 including Articles 16 (4, 16 (4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution bench decisions of this court in Balaji case2, Devadasan case3 and Sabharwal case4. Even in Indra Sawhney case5 the same view has been 2 AIR 1963 SC 649: 1963 Supp (1) SCR 439; 3 AIR 1964 SC 179: (1964) 4 SCR 680: (1965) 2 LLJ 560; 4 (1995)2 SCC 745 : 1995 SCC (L&S) 548: (1995) 29 ATC 481; 5 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385; 4 held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15 (4) is an enabling provision like Article 16 (4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15 (4) [sic 16 (4) must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this court in State of A. P v. U. S. V. Balram and C. A. Rajendran v. Union of India. It has been indicated in Indra Sawhney case that clause (4) of Article 16 is not in the nature of an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1). It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney case this court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause 5 (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.” In view of the decision in C.A. Rajendran’s case (supra), no writ can be issued directing the State to enforce reservation in the manner pleaded by the petitioner. The State may, if so chooses, frame a policy, policy guidelines or Rules within the Constitutional permissible limits provided for reservation. This petition is accordingly disposed of. There shall be no order as to costs. All miscellaneous applications stand dismissed. All interim orders are vacated. May 16, 2008 (Dev Darshan Sud) (aks) Judge.