Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3467 of 2005

WITH

CIVIL APPEAL NO.3468 of 2005

Dayaram … Appellant

Vs.

Sudhir Batham & Ors. … Respondents

J U D G M E N T

R.V. RAVEENDRAN, J.

Respondents 1 to 3 claimed that they belonged to ‘Dhobi’ caste, a

scheduled caste in Bhopal district of Madhya Pradesh, and secured

appointment to posts reserved for Schedule Castes. The appellant, who was

the President of the Schedule Caste Employees Association, made a

complaint to the Sub-Divisional Magistrate that respondents 1 to 3 did not

belong to any scheduled caste and had produced false caste certificates.

The Collector enquired into the matter and gave a report dated 20.1.2000

holding that the caste certificates produced by respondents 1 to 3 were false.

Consequently, the appointments of respondents 1 to 3 were cancelled on

20.4.2000. Respondents 1 to 3 challenged the report of the Collector and

their consequential termination in WP No. 2666/2000. The Madhya Pradesh

High Court directed that the caste certificates of respondents 1 to 3 be

verified by the State Level Screening Committee in accordance with the

decision of this court in Kumari Madhuri Patil v. Additional Commissioner,

Tribal Development (1994) 6 SCC 241. The appellant, who had also

approached the High Court, was permitted by the High Court to pursue his

complaint against respondents 1 to 3 before the State Level Screening

Committee.

2.The State Level Screening Committee held an enquiry, and after

hearing respondents 1 to 3 and the appellant, made an order dated 4.2.2002

holding that respondents 1 to 3 did not belong to ‘Dhobi’ caste and directed

cancellation of the caste certificates issued to them. Aggrieved by the order

dated 4.2.2002 of the Committee, respondents 1 to 3 again approached the

High Court, in WP No.2074/2002. A learned single Judge of the High Court,

by order dated 9.3.2003, allowed the writ petition, quashed the order of the

scrutiny committee and declared that the respondents 1 to 3 belonged to a

scheduled caste. Consequently he quashed the orders of termination of

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service with a direction to reinstate respondents 1 to 3 with all consequential

benefits. The said order was challenged by the appellants by filing a Letters

Patent Appeal (LPA No.409/2003). The LPA was dismissed by a division

bench of the High Court, by order dated 4.8.2003 as not maintainable in

view of direction (13) of the caste verification procedure in Madhuri Patil,

which directed that “in case the writ petition is disposed of by a single

Judge, then no further appeal would lie against that order to the division

bench, but subject to special leave under Article 136.” The said order of the

division bench holding the appeal as not maintainable is challenged in Civil

Appeal No.3467/2005. The appellant has also challenged the order of the

learned Single Judge by filing a separate appeal in CA No.3468/2005, to

avoid difficulties in the event of being unsuccessful in CA No.3467/2005.

The Reference

3.These two appeals have been referred by a two Judge bench, to a

larger bench by order of reference dated 31.3.2010 doubting the legality and

validity of the directions issued in Madhuri Patil. We extract below the

relevant portion of the order of reference:

“In Kumari Madhuri Patit’s case, as many as fifteen directions were

given, which, in our opinion, are all legislative in nature. In our opinion, if

a Court feels that some law should be made, then it can only make a

recommendation to that effect to the legislature but it cannot itself

legislate. It is upto the legislature to accept the recommendation or not.

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In Kumari Madhuri Patil case, the two Judge Bench of this Court in

direction No.13 observed as follows:

“The High Court would dispose of these cases as

expeditiously as possible within a period of three months.

In case, as per its procedure, the writ petition/miscellaneous

petition/matter is disposed of by a single Judge, then no

further appeal would lie against that order to the Division

Bench but subject to special leave under Article 136.”

In our opinion, the direction that no further appeal will lie against the

decision of a Single Judge of the High Court to a division bench was

clearly not valid. It is well settled that an appeal is a creature of the statute

and if the statute or the Letters Patent of the High Court or rules provide

for an appeal, then an appeal will lie. For instance, the Court cannot say

that no second appeal under section 100 CPC will be entertained in future

by the High Court. That will be really abolishing section 100 CPC and this

can only be done by the legislature and not by the courts. An appeal can

be created by the legislature and abolished by the legislature. The court

can neither creates an appeal nor abolish it.

Since the aforesaid direction in Kumari Madhuri Patil case (supra), are in

our opinion not valid, we are of the opinion that they require

reconsideration by a larger bench.”

The directions in Madhuri Patil

4.In Madhuri Patil, a two Judge Bench of this Court found that spurious

tribes and persons not belonging to scheduled tribes were snatching away

the reservation benefits given to genuine tribals, by claiming to belong to

scheduled tribes. This Court found that the admission wrongly gained or

appointment wrongly obtained on the basis of false caste certificates had the

effect of depriving the genuine scheduled castes or scheduled tribes of the

benefits conferred on them by the Constitution. It also found that genuine

candidates were denied admission to educational institutions or

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appointments to posts under the State, for want of social status certificate;

and that ineligible or spurious candidates who falsely gained entry resorted

to dilatory tactics and created hurdles in completion of the inquiries by the

Scrutiny Committee, regarding their caste status. It noticed that admissions

to educational institutions were generally made by the parents, as the

students will be minors, and they (parents or the guardians) played fraud in

claiming false status certificate. This Court was therefore of the view that the

caste certificates issued should be scrutinised with utmost expedition and

promptitude. To streamline the procedure for the issuance of a caste (social

status) certificates, their scrutiny and approval, this Court issued the fifteen

directions, relevant portions of which are extracted below:

1. The application for grant of social status certificate shall be made to

the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy

Commissioner and the certificate shall be issued by such Officer rather

than at the Officer, Taluk or Mandal level.

2. The parent, guardian or the candidate, as the case may be, shall file

an affidavit duly sworn and attested by a competent gazetted officer or

non-gazetted officer with particulars of castes and sub-castes, tribe,

tribal community, parts or groups of tribes or tribal communities, the

place from which he originally hails from and other particulars as may

be prescribed by the concerned Directorate.

3. Application for verification of the caste certificate by the Scrutiny

Committee shall be filed at least six months in advance before seeking

admission into educational institution or an appointment to a post.

4. All the State Governments shall constitute a Committee of three

officers, namely, (I) an Additional or Joint Secretary or any officer

higher in rank of the Director of the concerned department, (II) the

Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as

the case may, and (III) in the case of Scheduled Castes another officer

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who has intimate knowledge in the verification and issuance of the

social status certificates. In the case of Scheduled Tribes, the Research

Officer who has intimated knowledge in identifying the tribes, tribal

communities, parts of or groups of tribes or tribal communities.

5. Each Directorate should constitute a vigilance cell consisting of

Senior Deputy Superintendent of Police in over all charge and such

number of Police Inspectors to investigate into the social status claims.

……………..

6. The Director concerned, on receipt of the report from the vigilance

officer if he found the claim for social status to be "not genuine" or

"doubtful" or spurious or falsely or wrongly claimed, the Director

concerned should issue show cause notice supplying a copy of the

report of the vigilance officer to the candidate by a registered post with

acknowledgement due or through the head of the concerned

educational institution in which the candidate is studying or

employed……….. After giving such opportunity either in person or

through counsel, the Committee may make such inquiry as it deems

expedient and consider the claims vis-a-vis the objections raised by the

candidate or opponent and pass an appropriate order with brief reasons

in support thereof.

7. In case the report is in favour of the candidate and found to be

genuine and true, no further action need be taken except where the

report or the particulars given are procured or found to be false or

fraudulently obtained and in the latter event the same procedure as is

envisaged in para 6 be followed.

8. Notice contemplated in para 6 should be issued to the parents/

guardian also in case candidate is minor to appear before the

Committee with all evidence in his or their support of the claim for the

social status certificates.

9. The inquiry should be completed as expeditiously as possible

preferably by day-to-day proceedings within such period not

exceeding two months. If after inquiry, the caste Scrutiny Committee

finds the claim to be false or spurious, they should pass an order

cancelling the certificate issued and confiscate the same. It should

communicate within one month from the date of the conclusion of the

proceedings the result of enquiry to the parent/guardian and the

applicant.

10. In case of any delay in finalizing the proceedings, and in the

meanwhile the last date for admission into an educational institution or

appointment to an officer post, is getting expired, the candidate be

admitted by the Principal or such other authority competent in that

behalf or appointed on the basis of the social status certificate already

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issued or an affidavit duly sworn by the parent/guardian/candidate

before the competent officer or non-official and such admission or

appointment should be only provisional, subject to the result of the

inquiry by the Scrutiny Committee.

11. The order passed by the Committee shall be final and

conclusive only subject to the proceedings under Article 226 of the

Constitution.

12. No suit or other proceedings before any other authority should

lie.

13. The High Court would dispose of these cases as expeditiously

as possible within a period of three months. In case, as per its

procedure, the writ petition/Miscellaneous petition/matter is

disposed of by a Single Judge, then no further appeal would lie

against that order to the Division Bench but subject to special

leave under Article 136.

14. In case, the certificate obtained or social status claimed is found to

be false, the parent/guardian/the candidate should be prosecuted for

making false claim. If the prosecution ends in a conviction and

sentence of the accused, it could be regarded as an offence involving

moral turpitude, disqualification for elective posts or offices under the

State or the Union or elections to any local body, legislature or the

Parliament.

15. As soon as the finding is recorded by the Scrutiny Committee

holding that the certificate obtained was false, on its cancellation and

confiscation simultaneously, it should be communicated to the

concerned educational institution or the appointing authority by

registered post with acknowledgement due with a request to cancel the

admission or the appointment. The principal etc. of the educational

institution responsible for making the admission or the appointing

authority, should cancel the admission/appointment without any

further notice to the candidate and debar the candidate for further

study or continue in office in a post.

[emphasis supplied]

This Court also observed that as the aforesaid procedure by providing for a

fair and just verification, could shorten the undue delay and also prevent

avoidable expenditure for the State on the education of the candidate

admitted/appointed on false social status or further continuance therein,

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every State should endeavour to give effect to it and see that the

constitutional objectives intended for the benefit and advancement of the

genuine scheduled castes/scheduled tribes are not defeated by unscrupulous

persons.

Questions for consideration

5.In view of the reference order, the following questions arise for

consideration:

(i)Whether directions 1 to 15 in Madhuri Patil are impermissible,

being legislative in nature?

(ii)Whether directions 11 and 12 in Madhuri Patil, which exclude the

jurisdiction of the civil court to entertain suits challenging the

decisions of the Caste Scrutiny Committees, violate section 9 of the

Code of Civil Procedure?

(iii)Whether direction 13 in Madhuri Patil barring intra-court

appeals against decisions of Single Judges in writ petitions, when such

appeals are specifically provided for in State enactments/Letters

Patents, is valid and proper?

Re: Question (i) directions (1) to (15) in Kumari Madhuri Patil in general

6.This Court has a constitutional duty to protect the fundamental rights

of Indian citizens. Whenever this Court found that the socio-economic rights

of citizens required to be enforced, but there was a vacuum on account of the

absence of any law to protect and enforce such rights, this Court has

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invariably stepped in and evolved new mechanisms to protect and enforce

such rights, to do complete justice. This has been done by re-fashioning

remedies beyond those traditionally available under writ jurisdiction by

issuing appropriate directions or guidelines to protect the fundamental rights

and make them meaningful.

7.In S. P. Gupta v. Union of India (1981) Supp. SCC 87, this Court

observed :

“The judiciary has therefore a socio-economic destination and a creative

function. It has, to use the words of Glanville Austin, to become an arm of

the socio-economic revolution and perform an active role calculated to

bring social justice within the reach of the common man. It cannot remain

content to act merely as an umpire but it must be functionally involved in

the goal of socio-economic justice.”

Referring to the British concept of judging, that is, a Judge is only a neutral

and passive umpire, who merely hears and determines issues of fact and law,

this Court further observed thus :

“Now this approach to the judicial function may be all right for a stable

and static society but not for a society pulsating with urges of gender

justice, worker justice, minorities justice, dalit justice and equal justice

between chronic un-equals. Where the contest is between those who are

socially or economically unequal, the judicial process may prove

disastrous from the point of view of social justice, if the Judge adopts a

merely passive or negative role and does not adopt a positive and creative

approach. The judiciary cannot remain a mere bystander or spectator but it

must become an active participant in the judicial process ready to use law

in the service of social justice through a pro-active goal oriented

approach.”

“What is necessary is to have Judges who are prepared to fashion new

tools, forge new methods, innovate new strategies and evolve a new

jurisprudence, who are judicial statesmen with a social vision and a

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creative faculty and who have, above all, a deep sense of commitment to

the Constitution with an activist approach and obligation for

accountability, not to any party in power nor to the opposition nor to the

classes which are vociferous but to the half hungry millions of India who

are continually denied their basic human rights. We need Judges who are

alive to the socio-economic realities of Indian life, who are anxious to

wipe every tear from every eye, who have faith in the constitutional values

and who are ready to use law as an instrument for achieving the

constitutional objectives.”

In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 expanded

upon the role of this Court thus:

“But the question then arises as to what is the power which may be

exercised by the Supreme Court when it is moved by an "appropriate"

proceeding for enforcement of a fundamental right. It is not only the high

prerogative writs of mandamus, habeas corpus, prohibition, quo warranto

and certiorari which can be issued by the Supreme Court but also writs in

the nature of these high prerogative writs and therefore even if the

conditions for issue of any of these high prerogative writs are not fulfilled,

the Supreme Court would not be constrained to fold its hands in despair

and plead its inability to help the citizen who has come before it for

judicial redress, but would have power to issue any direction, order or

writ including a writ in the nature of any high prerogative writ. This

provision conferring on the Supreme Court power to enforce the

fundamental rights in the widest possible terms shows the anxiety of the

Constitution makers not to allow any procedural technicalities to stand in

the way of enforcement of fundamental rights. The Constitution makers

clearly intended that the Supreme Court should have the amplest power to

issue whatever direction, order or writ may be appropriate in a given case

for enforcement of a fundamental right.”

(emphasis supplied)

8.In Vishaka v. State of Rajasthan (1997) 6 SCC 241 this court

recognized its obligation under Article 32 to provide for the enforcement of

fundamental rights in areas with legislative vacuum. After detailed

consideration, this Court held:

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“In view of the above, and the absence of enacted law to provide for the

effective enforcement of the basic human right of gender equality and

guarantee against sexual harassment and abuse, more particularly against

sexual harassment at work places, we lay down the guidelines and norms

specified hereinafter for due observance at all work places or other

institutions, until a legislation is enacted for the purpose. This is done in

exercise of the power available under Article 32 of the Constitution for

enforcement of the fundamental rights and it is further emphasised that

this would be treated as the law declared by this Court under

Article 141 of the Constitution.”

9.In Vineet Narain v. Union of India 1998 (1) SCC 226 this court took

note of the fact that in exercise of the powers under Article 32 read with

Article 142, guidelines and directions had been issued in a large number of

cases; and that issue of such guidelines and directions is a well settled

practice which has taken firm roots in our constitutional jurisprudence and

that such exercise was essential to fill the void in the absence of suitable

legislation to cover the field. Consequently this Court issued various

directions with the following preamble:

“As pointed out in Vishakha (supra), it is the duty of the executive to fill

the vacuum by executive orders because its field is co-terminus with that

the legislature, and where there is inaction even by the executive for

whatever reason, the judiciary must step in, in exercise of its

constitutional obligations under the aforesaid provisions to provide a

solution till such time as the legislature acts to perform its role by

enacting proper legislation to cover the field.

59. On this basis, we now proceed to give the directions enumerated

hereafter for rigid compliance till such time as the legislature steps in to

substitute them by proper legislation. These directions made under

Article 32 read with Article 142 to implement the rule of law wherein the

concept of equality enshrined in Article 14 is embedded, have the force of

law under Article 141 and by virtue of Article 144 it is the duty of all

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authorities, civil and judicial, in the territory of India to act in aid of this

Court.”

(emphasis supplied)

10.In Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 3 SCC 284 this

Court held that Article 142 is an important constitutional power granted to

this court to protect the citizens. In a given situation when laws are found to

be inadequate for the purpose of grant of relief, the court can exercise its

jurisdiction under Article 142 of the Constitution. This court reiterated that

directions issued by this court under Article 142 from the law of the land in

the absence of any substantive law covering the field and such directions

“fill the vacuum” until the legislature enacts substantive law. This court has

issued guidelines and directions in several cases for safeguarding,

implementing and promoting the fundamental rights, in the absence of

legislative enactments. By way of illustrations, we may refer to Lakshmi

Kant Pandey v. Union of India (1984) 2 SCC 244 [regulating inter-country

adoptions], Common Cause v. Union of India (1996) 1 SCC 753 [regulating

collection, storage and supply of blood for blood transfusions], M.C. Mehta

v. State of Tamilnadu (1996) 6 SCC 756 [enforcing prohibition on child

labour].

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11.In Supreme Court Bar Association v.Union of India (1998) 4 SCC 409

a Constitution Bench of this Court held:

“Indeed this Court is not a court of restricted jurisdiction of only dispute-

settling. It is well recognized and established that this court has always

been a law maker and its role travels beyond merely dispute settling. It is

a “problem solver in the nebulous provisions dealing with the subject

matter of a given case cannot be altogether ignored by this Court, while

making an order under Article 142. Indeed, these constitutional powers

cannot, in any way, be controlled by any statutory provisions but at the

same time these powers are not meant to be exercised when their exercise

may come directly in conflict with what has been expressly provided for in

a statute dealing expressly with the subject.”

(emphasis supplied)

12.The directions issued in Madhuri Patil were towards furtherance of the

constitutional rights of scheduled castes/scheduled tribes. As the rights in

favour of the scheduled castes and scheduled tribes are a part of legitimate and

constitutionally accepted affirmative action, the directions given by this Court

to ensure that only genuine members of the scheduled castes or scheduled

tribes were afforded or extended the benefits, are necessarily inherent to the

enforcement of fundamental rights. In giving such directions, this court

neither re-wrote the Constitution nor resorted to ‘judicial legislation’. The

Judicial Power was exercised to interpret the Constitution as a ‘living

document’ and enforce fundamental rights in an area where the will of the

elected legislatures have not expressed themselves. Benjamin Cardozo in his

inimitable style said that the power, to declare the law carries with it the

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power and within limits the duty, to make law when none exists. (Nature of

the Judicial Process, page 124). Directions issued in the exercise of Judicial

Power can fashion modalities out of existing executive apparatus, to ensure

that eligible citizens entitled to affirmative action alone derive benefits of such

affirmative action. The directions issued in Madhuri Patil are intrinsic to the

fulfillment of fundamental rights of backward classes of citizens and are also

intended to preclude denial of fundamental rights to such persons who are

truly entitled to affirmative action benefits.

13.We may now deal with the two decisions relied upon in the reference

order. The first is the decision in Divisional Manager, Aravali Golf Club vs.

Chander Haas [2008 (1) SCC 683]. In that case it was observed that Judges

should not unjustifiably try to perform executive or legislative functions and

in the name of judicial activism, cannot cross their limits and try to take-over

the functions which belong to another organ of the State. The court also

lamented upon the tendency of some Judges to interfere in matters of policy.

These observations no doubt, deserve acceptance. These observations were

made in the context of setting aside a direction of the High Court to create

the posts of drivers and then regularize the services of respondents against

such newly created posts. It was held that courts cannot direct creation of

posts which is the prerogative of the executive or legislature. In fact in the

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very decision this court further observed that its observations did not mean

that Judges should never be activists as many a time judicial activism is a

useful adjunct to democracy and such activism should be resorted to only in

exceptional circumstances where the situation forcefully demands it in the

interest of the nation or the poorer or weaker sections of the society, keeping

in mind that ordinarily the task of legislation or administrative decisions is

for the legislature and the executive and not for the judiciary. Thus the

decision in Aravali Golf Club in effect supports the principle which is the

basis for the directions in Madhuri Patil. The principle is wherever the

interests of weaker sections are adversely affected due to unscrupulous acts

of persons attempting to usurp the benefits meant for such weaker sections,

court can, and in fact should, step in, till a proper legislation is in place. It is

not necessary to refer to the second case mentioned in the reference order,

that is Common Cause vs. Union of India - 2008 (5) SCC 511, for two

reasons. First is, it reiterates Aravali Golf Club. Second is, on the relevant

issue, the two learned Judges have differed and therefore the discussion is

not of any assistance.

14.Therefore we are of the view that directions 1 to 15 issued in exercise

of power under Articles 142 and 32 of the Constitution, are valid and

laudable, as they were made to fill the vacuum in the absence of any

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legislation, to ensure that only genuine scheduled caste and scheduled tribe

candidates secured the benefits of reservation and the bogus candidates were

kept out. By issuing such directions, this court was not taking over the

functions of the legislature but merely filling up the vacuum till legislature

chose to make an appropriate law.

Re: Question (ii) : Whether civil courts jurisdiction could be barred?

15.Direction (11) in Madhuri Patil states that order passed by the

scrutiny committee shall be final and conclusive, subject only to challenge

under Article 226 of the Constitution. Direction (12) states that no suit

(before a civil court) or other proceedings before any other authority should

lie against the orders of the scrutiny committee. The appellant contends that

the right to file a civil suit cannot be taken away by a judicial order and that

a suit could be barred only by a statute, either expressly or impliedly.

Section 9 of the Code of Civil Procedure (‘Code’ for short) provides that

courts have to try all civil suits unless barred. The relevant portion of the

said section is extracted below :

“The Courts shall (subject to the provisions herein contained) have

jurisdiction to try all suits of a civil nature excepting suits of which their

cognizance is either expressly or impliedly barred.”

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16.In Vankamamidi Venkata Subba Rao vs. Chatlapalli Seetharamaratna

Ranganayakamma (1997) 5 SCC 460 this Court explained the scope of

section 9 thus :

“When a legal right is infringed, a suit would lie unless there is a bar

against entertainment of such civil suit and the civil Court would take

cognizance of it. Therefore, the normal rule of law is that Civil Courts

have jurisdiction to try all suits of civil nature except those of which

cognizance is either expressly or by necessary implication excluded…..

Courts generally construe the provisions strictly when jurisdiction of the

civil courts is claimed to be excluded. However, in the development of

civil adjudication of civil disputes, due to pendency of adjudication and

abnormal delay at hierarchical stages, statutes intervene and provide

alternative mode of resolution of disputes with less expensive but

expeditious disposal…….It is also an equally settled legal position that

where a statute gives finality to the orders of the special tribunal, the civil

court’s jurisdiction must be held to be excluded, if there is adequate

remedy to do what the civil court would normally do in a suit. Where

there is no express exclusion, the examination of the remedies and the

scheme of the particular Act to find out the intendment becomes necessary

and the result of the inquiry may be decisive. In the latter case, it is

necessary that the statute creates a special right or liability and provides

procedure for the determination of the right or liability and further lays

down that all questions about the said right or liability shall be determined

by the Tribunal so constituted and whether remedies is normally

associated with the action in civil Courts or prescribed by the statutes or

not. Therefore, each case requires examination whether the statute

provides right and remedies and whether the scheme of the Act is that the

procedure provided will be conclusive and thereby excludes the

jurisdiction of the civil Court in respect thereof.”

(emphasis supplied)

17.Scope of section 9 of the Code was again explained by this Court in

Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa

(2009) 4 SCC 299 as under:

“Section 9 of the Code is in enforcement of the fundamental principles

of law laid down in the maxim Ubi jus ibi remedium. A litigant, thus,

having a grievance of a civil nature has a right to institute a civil suit in a

competent civil court unless its cognizance is either expressly or

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impliedly barred by any statute. Ex facie, in terms of Section 9 of the

Code, civil courts can try all suits, unless barred by statute, either

expressly or by necessary implication..”

(emphasis supplied)

18.In Dhulabai v. State of MP (1968) 3 SCR 662 this Court enumerated

the circumstances wherein civil court jurisdiction could be held to be

excluded. They are:

“(1) Where the statute gives a finality to the orders of the special tribunals,

the Civil Court's jurisdiction must be held to be excluded if there is

adequate remedy to do what the Civil Courts would normally do in a suit.

Such provision, however, does not exclude those cases where the

provisions of the particular Act have not been complied with or the

statutory tribunal has not acted in conformity with the fundamental

principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an

examination of the scheme of the particular Act to find the adequacy or

the sufficiency of the remedies provided may be relevant but is not

decisive to sustain the jurisdiction of the civil court.”

19.It is therefore clear that the jurisdiction of the civil court to entertain

any suit of a civil nature arising under a statute can be excluded only when

cognizance is expressly or impliedly barred by the statute which gives rise to

such suits. In this case, the creation of the scrutiny committee is by the

judgment of this Court. The procedure and functioning of the scrutiny

committee is also in accordance with the scheme formulated by the said

judgment. Thus if a suit is to be filed in a civil court in regard to the decision

of the scrutiny committee, the cause of action for such suit would not arise

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under any statute, but with reference to an order of a committee constituted

in pursuance of a scheme formulated by this court, by way of a stop-gap

quasi –legislative action. The principle underlying section 9 is that

cognizance of any category of suits arising under a statute, can be barred

(either expressly or impliedly) by that Statute. But in regard to cognizance of

the category of suits arising from the scheme formulated by a decision of

this Court (and not under a statute), the scheme formulated by the decision

of the court is the ‘statute’, and therefore the scheme can expressly or

impliedly bar cognizance of such suits. This is because the ‘statute’ which

gives rise to a cause of action referred to in the aforesaid decisions in V.

Venkata Subha Rao, Bal Mukund Bairwa and Dhulabai, in this case is

substituted by the ‘quasi-legislative’ stop-gap scheme created by the

decision of this Court. As the scrutiny committee is a creature of the

judgment in Madhuri Patil and the procedure for verification and passing of

appropriate orders by the scrutiny committee is also provided for in the said

judgment, there is nothing irregular or improper in this court directing that

orders of the scrutiny committee should be challenged only in a proceeding

under Article 226 of the Constitution and not by way of any suit or other

proceedings. Section 9 of the Code and plethora of decisions which

considered it, state that the civil court will have jurisdiction except where the

cognizance of suits of civil nature is either expressly or impliedly barred.

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20.One incidental submission about the nature and constitution of the

scrutiny committee requires to be dealt with. It is submitted that scrutiny

committee, directed to be constituted by Madhuri Patil, is neither a court nor

a tribunal, but a committee consisting of government officers, namely, (i) an

officer of Additional or Joint Secretary level or other officer higher in rank

than the Director of the department concerned; (ii) the Director, Social

Welfare/Tribal Welfare/Backward Classes Welfare, as the case may be; and

(iii) an officer, who has an intimate knowledge in the verification and

issuance of social status certificates in the case of scheduled castes and a

Research Officer who has intimate knowledge in identifying tribes,

communities etc., in the case of scheduled tribes. The scrutiny committee

does not have any judicial member. It is submitted that in the event of caste

status being erroneously decided by the scrutiny committee, which does not

have any ‘judicial’ mind, the only remedy available for the aggrieved person

would be a writ petition under Article 226 of the Constitution. Such a

remedy cannot act as a efficacious substitute to the right to file a civil suit

since the High Court exercising writ jurisdiction will not re-appreciate

evidence whereas a civil court could do so. It is contended that the High

Court’s writ jurisdiction, which is concerned only with decision making

process, is further curtailed by paragraph 15 in Madhuri Patil which directs

as under :

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“The question then is whether the approach adopted by the high court in

not elaborately considering the case is vitiated by an error of law. High

Court is not a court of appeal to appreciate the evidence. The Committee

which is empowered to evaluate the evidence placed before it when

records a finding of fact, it ought to prevail unless found vitiated by

judicial review of any High Court subject to limitations of interference

with findings of fact. The Committee when considers all the material facts

and records a finding, though another view, as a court of appeal may be

possible it is not a ground to reverse the findings. The court has to see

whether the committee considered all the relevant material placed before it

or has not applied its mind to relevant facts which have led the committee

ultimately record the finding. Each case must be considered in the

backdrop of its own facts.”

It was submitted that not only the decision of the scrutiny committee is

given finality on questions of fact, but even the power of judicial review is

sought to be curtailed by the aforesaid observation in Madhuri Patil. It is

pointed out that if the scrutiny committee wrongly holds a genuine caste

certificate is to be a false certificate, and the certificate holder is prevented

from approaching the civil court, such erroneous findings of fact by the

committee which is a non-judicial body would attain finality, without any

remedy to the certificate holder. It was therefore submitted that denial of the

right to approach the civil court and restricting the remedy to only writ

proceedings, in the anxiety to provide speedy remedy, has the potential of

causing severe miscarriage of justice.

21. The assumption that para 15 of Madhuri Patil extracted above curtails

the power of judicial review under Article 226 is not correct. It is

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inconceivable to even think that this Court, by a judicial order would curtail

or regulate the writ jurisdiction of the High Court under Article 226. All that

para 15 of Madhuri Patil does is to draw attention to the settled parameters

of judicial review and nothing more. We make it clear that nothing in para

15 of the decision in Madhuri Patil shall be construed as placing any fetters

upon the High Court in dealing with writ petitions relating to caste

certificates.

22.Each scrutiny committee has a vigilance cell which acts as the

investigating wing of the committee. The core function of the scrutiny

committee, in verification of caste certificates, is the investigation carried on

by its vigilance cell. When an application for verification of the caste

certificate is received by the scrutiny committee, its vigilance cell

investigates into the claim, collects the facts, examines the records,

examines the relations or friend and persons who have knowledge about the

social status of the candidate and submits a report to the committee. If the

report supports the claim for caste status, there is no hearing and the caste

claim is confirmed. If the report of the vigilance cell discloses that the claim

for the social status claimed by the candidate was doubtful or not genuine, a

show-cause notice is issued by the committee to the candidate. After giving

due opportunity to the candidate to place any material in support of his

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claim, and after making such enquiry as it deems expedient, the scrutiny

committee considers the claim for caste status and the vigilance cell report,

as also any objections that may be raised by any opponent to the claim of the

candidate for caste status, and passes appropriate orders. The scrutiny

committee is not an adjudicating authority like a Court or Tribunal, but an

administrative body which verifies the facts, investigates into a specific

claim (of caste status) and ascertains whether the caste/tribal status claimed

is correct or not. Like any other decisions of administrative authorities, the

orders of the scrutiny committee are also open to challenge in proceedings

under Article 226 of the Constitution. Permitting civil suits with provisions

for appeals and further appeals would defeat the very scheme and will

encourage the very evils which this court wanted to eradicate. As this Court

found that a large number of seats or posts reserved for scheduled castes and

scheduled tribes were being taken away by bogus candidates claiming to

belong to scheduled castes and scheduled tribes, this Court directed

constitution of such scrutiny committees, to provide an expeditious,

effective and efficacious remedy, in the absence of any statute or a legal

framework for proper verification of false claims regarding SCs/STs status.

This entire scheme in Madhuri Patil will only continue till the concerned

legislature makes appropriate legislation in regard to verification of claims

for caste status as SC/ST and issue of caste certificates, or in regard to

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verification of caste certificates already obtained by candidates who seek the

benefit of reservation, relying upon such caste certificates.

23.Having regard to the scheme for verification formulated by this Court

in Madhuri Patil, the scrutiny committees carry out verification of caste

certificates issued without prior enquiry, as for example the caste certificates

issued by Tehsildars or other officers of the departments of Revenue/Social

Welfare/Tribal Welfare, without any enquiry or on the basis of self-

affidavits about caste. If there were to be a legislation governing or

regulating grant of caste certificates, and if caste certificates are issued after

due and proper inquiry, such caste certificates will not call for verification

by the scrutiny committees. Madhuri Patil provides for verification only to

avoid false and bogus claims. The said scheme and the directions therein

have been satisfactorily functioning for the last one and a half decades. If

there are any shortcomings, the Government can always come up with an

appropriate legislation to substitute the said scheme. We see no reason why

the procedure laid down in Madhuri Patil should not continue in the absence

of any legislation governing the matter.

Re: Question (iii) : Whether a right of appeal can be taken away by way

of judicial order?

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24.Direction (13) in Madhuri Patil directs that when a writ petition

challenging the decision of the scrutiny committee is decided by a Single

Judge of the High Court, no further appeal would lie against that order to the

division bench and the decision of the learned Single Judge would only be

subjected to special leave under Article 136 of the Constitution.

25.The State of Madhya Pradesh enacted the ‘Uchcha Nyayalaya

(Khandpeeth Ko Appeal) Adhiniyam, 2005” which is deemed to have come

into force from 1.7.1981. The said Adhiniyam confers a right of appeal

before a division bench against the judgment of the single judge exercising

jurisdiction under Article 226 of the Constitution of India. The relevant

provision is as follows:

“An appeal shall lie from a judgment or order passed by one Judge of the

High Court in exercise of original jurisdiction under Article 226 of the

Constitution of India, to a division bench comprising of two judges of the

same High Court.”

26.A remedy by way of appeal, provided expressly by a statute cannot be

taken away by an executive fiat or a judicial order. In Asia Industries (P)

Ltd. v.S.B. Sarup Singh (1965) 2 SCR 756 this Court held:

“Under the rules made by the High Court in exercise of the powers

conferred on it under section 108 of the Government of India Act, 1915,

an appeal under section 39 of the Act will be heard by a single Judge. Any

judgment made by the single Judge in the said appeal will, under Clause

10 of the Letters Patent, be subject to appeal to that Court. If the order

made by a single Judge is a judgment and if the appropriate Legislature

has, expressly or by necessary implication, not taken away the right of

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appeal, the conclusion is inevitable that an appeal shall lie from the

judgment of a single Judge under Clause 10 of the Letters Patent to the

High Court.”

(emphasis supplied)

In A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602, an earlier bench had

transferred the criminal trials pending before the Special Judge to the High

Court of Bombay. A bench of seven judges while overruling the earlier

decision held that section 7(1) of the Criminal Law Amendment Act, 1952

created a condition that notwithstanding anything contained in the Code of

Criminal Procedure or any other law, the offences under section 6(1) of the

said Act to be tried by special judges only; and therefore the order dated

16.2.1984 [reported in (1984) 2 SCC 183] transferring the cases to High

Court was not authorized by law. It was also submitted that if the case was

tried by a special judge, the accused had a right of appeal to the High Court

and by transferring the trial to the High Court the said vested right of appeal

was taken away which was impermissible in law. This court held that

Parliament alone can take away vested right of appeal and no court whether

inferior or superior can take away the said vested right. The following

observations in that context are relevant:

“The power to create or enlarge jurisdiction is legislative in character, so

also the power to confer a right of appeal or to take away a right of

appeal. Parliament alone can do it by law and no Court, whether superior

or inferior or both combined can enlarge the jurisdiction of a Court or

divest a person of his rights of revision and appeal.”

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(emphasis supplied)

27.We may also refer to two other decisions dealing with the right of

appeal vested in a litigant, on and from the date of commencement of the lis.

Though in this case, we are not immediately concerned with interference

with the vested right of appeal of a litigant, after the commencement of a lis,

the principle underlying these two decisions are useful in understanding the

right to appeal. A Constitution Bench of this Court in Hoosein Kasam Dada

(India) Ltd.vs. The State of Madhya Pradesh and Ors. – 1953 SCR 987 held

that right of appeal is a vested substantive right. This Court held:

“The above decisions quite firmly establish and our decisions in Janardan

Reddy v. The State [1950] S.C.R. 941 and in Ganpat Rai v. Agarwal

Chamber of Commerce Ltd. (1952) S.C.J. 564, uphold the principle that a

right of appeal is not merely a matter of procedure. It is matter of

substantive right. This right of appeal from the decision of an inferior

tribunal to a superior tribunal becomes vested in a party when proceedings

are first initiated in, and before a decision is given by, the inferior court. In

the language of Jenkins C.J. in Nana bin Aba v. Shaikh bin Andu (1908)

ILR 32 Bom 337 to disturb an existing right of appeal is not a mere

alteration in procedure. Such a vested right cannot be taken away except

by express enactment or necessary intendment. An intention to interfere

with or to impair or imperil such a vested right cannot be presumed unless

such intention be clearly manifested by express words or necessary

implication.”

In Garikapatti Veeraya v.N.Subbiah Choudhury (1957) SCR 488, this Court

held that the vested right of appeal can be taken away only by a subsequent

enactment. The following principles were enunciated:

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(i) That the legal pursuit of a remedy, suit, appeal and second appeal are

really but steps in a series of proceedings all connected by an intrinsic

unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a

substantive right.

(iii) The institution of the suit carries with it the implication that all rights

of appeal then in force are preserved to the parties there to till the rest of

the carrier of the suit.

(iv) The right of appeal is a vested right and such a right to enter the

superior Court accrues to the litigant and exists as on and from the date the

lis commences and although it may be actually exercised when the adverse

judgment is pronounced such right is to be governed by the law prevailing

at the date of the institution of the suit of proceeding and not by the law

that prevails at the date of its decision or at the date of the filing of the

appeal.

(v) This vested right of appeal can be taken away only by a

subsequent enactment, if it so provides expressly or by necessary

intendment and not otherwise.

(emphasis supplied)

28.The right to file a writ appeal under the Adhiniyam (State Act) is a

‘vested right’, to any person filing a writ petition. That right can be taken

away only by an express amendment to the Act or by repeal of that Act, or

by necessary intendment, that is where a clear inference could be drawn

from some legislation that the legislature intended to take away the said

right. The right of appeal to a division bench, made available to a party to a

writ petition, either under a statute or Letters Patent, cannot be taken away

by a judicial order. The power under Article 142 is not intended to be

exercised, when such exercise will directly conflict with the express

provisions of a statute.

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Conclusion

29.In view of the above, we hold that the second sentence of clause 13

providing that where the writ petition is disposed of by a single judge, no

further appeal would lie against the order of the division bench (even when

there is a vested right to file such intra-court appeal) and will only be subject

to a special leave under Article 136, is not legally proper and therefore, to

that extent, is held to be not a good law. The second sentence of direction

No.(13) stands overruled. As a consequence, wherever the writ petitions

against the orders of the scrutiny committee are heard by a single judge and

the state law or Letters Patent permits an intra-court appeal, the same will be

available.

Civil Appeal No.3467/2005

30.In the light of the above, we allow this appeal (CA No.3467/2005) and

set aside the judgment of the Division Bench of the High Court holding the

writ appeal as not maintainable. Consequently, the writ appeal (earlier

Letters Patent Appeal) will stand restored to the file of the High Court. We

request the High Court to hear and dispose of the said appeal (against order

dated 9.5.2003 in W.P.No.2074/2002) on merits, expeditiously.

Civil Appeal No.3468/2005 :

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31.In view of our order in CA No.3467/2005 as above, CA

No.3468/2005 challenging the order dated 9.5.2003 of the learned Single

Judge is dismissed as infructuous.

We record our appreciation for the assistance rendered by Mr. Gopal

Subramanian, as Amicus Curiae.

.........................................J.

[ R.V. Raveendran ]

.........................................J.

[ P. Sathasivam ]

New Delhi ..........................................J.

October 11 , 2011 [ A.K. Patnaik ]

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