Dayaram Vs. Sudhir
Batham & Ors.
J U D G M E N T
R.V. RAVEENDRAN, J.
1.
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 3service 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.
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 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.
5. 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 6who 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.
6. 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. .................
7. 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.
8. 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.
9. 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.
10. 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.
11. 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 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.
12. The order passed by the
Committee shall be final and conclusive only subject to the proceedings under
Article 226 of the Constitution.
13. No suit or other proceedings
before any other authority should lie.
14. 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.
15. 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.
16. 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, 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
1.
2.
3.
4.
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? R e: Question (i) directions (1) to (15) in K umari 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 9invariably 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 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: 11 "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.
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 12 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].
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 14power 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 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 16legislation, 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."
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 18 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 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.
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 : 21 "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 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 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 24verification 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?
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
26.
26
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." 27 (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:
(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.
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 :
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 ]
.........................................J.
[ A.K. Patnaik ]
New
Delhi
October
11, 2011
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