JUDGMENT :

MOUSHUMI BHATTACHARYA, J.

1. The first petitioner is the State of West Bengal through the Department of Health and Family Welfare and the other petitioners are the Principal Secretary, Senior Special Secretary and the Director of the said Department. The petitioners seek a mandamus commanding the National Commission for Scheduled Castes and the Vice Chairperson of the Commission to rescind the recommendation made by the Commission on 3.2.2023 and not to give any further effect thereto. The recommendations were made pursuant to a hearing dated 3.2.2023 and were communicated to the petitioners by way of a letter dated 9.2.2023.

2. The impugned recommendations, which is part of the Minutes of the hearing dated 3.2.2023, were made on a complaint filed by the private respondent no. 3. It was recommended that respondent no. 3 be allowed to join his duty in the Department of Health and Family Welfare. The Commission further recommended that the respondent no. 3 be paid his salary with effect from 23.6.2021. The concerned competent authority of the Department was also directed to appear before the Commission on the scheduled date of hearing and submit an Action Taken Report within 15 days from the date of the signature on the Minutes by the respondent no. 2 / Vice Chairperson of the Commission.

3. The learned Advocate General assisted by the learned Government Pleader urges that the impugned recommendations suffer from a lack of jurisdiction. Counsel places the correspondence between the parties to show that the complaint made by the respondent no. 3 related to a service matter and hence the Commission does not have the power to adjudicate on the complaint. Counsel submits that the Commission could not have directed the petitioners to submit an Action Taken Report which essentially amounts to a direction on the petitioners, which is also beyond the jurisdiction of the Commission under Article 338 of the Constitution. It is also submitted that no case has been made out by the Commission to initiate proceedings on the complaint made by the private respondent no. 3.

4. The learned DSG appearing for the Commission places documents to show that the petitioners participated in the proceedings and sought exemption to appear on the ground of intervening festivals and holidays. Counsel submits that Article 338A(8) empowers the Commission to investigate any matter and that the Commission has been vested with all the powers of a civil court trying a suit including summoning any person from any part of the country. Counsel refers to the Rules of Procedure of the National Commission for Scheduled Castes notified on 25.3.2009 under which Rule 7.2 (a)(vii) provides for service and employment of Scheduled Castes and related matters. Counsel submits that the writ petition has only been filed on the apprehension of arrest of the petitioner nos. 2-4 and that too from a “BREAKING NEWS” aired in the electronic media. Counsel submits that the petitioners should be asked to participate in the proceedings and deal with the allegations made by the respondent no. 3.

5. Learned counsel appearing for the private respondent no. 3 / complainant before the Commission submits that the respondent no. 3 is a member of a Scheduled Caste. Counsel submits that the respondent no. 3 has been harassed by the concerned Department of the State and further that the petitioners refused to appear and participate in the proceedings.

6. The National Commission for Scheduled Castes/respondent no. 1 derives its existence and source of power from Article 338 of the Constitution of India. The duties of the Commission may be found under Article 338(5) which covers investigation and monitoring of all matters related to the safeguards provided for the Scheduled Castes under the Constitution or under any other law for the time being in force, the evaluation of the working of such safeguards and inquiry into specific complaints with respect to deprivation of rights and safeguards of th