Supreme Court of India
DAYARAMversusSUDHIR BATHAM & ORS.
- Citation
- 2011 INSC 737
- Decided
- 11 October 2011
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
The Supreme Court upheld the Madhuri Patil directions as a valid exercise of Articles 142 and 32, held that the scheme can bar civil suits under CPC s.9, and overruled the second sentence of direction 13 as it unlawfully extinguished a vested statutory right of appeal.
Summary
The case concerned the validity of the fifteen directions issued by the Supreme Court in Kumari Madhuri Patil for verification of caste certificates and the procedural rights of parties challenging the orders of the State Level Screening Committee. Dayaram, the President of the Scheduled Caste Employees Association, challenged the cancellation of appointments of three respondents who were alleged to have forged caste certificates. The High Court had allowed a writ petition quashing the committee’s order, but a Letters Patent Appeal was dismissed on the ground that a direction in Madhuri Patil barred intra‑court appeals. The Supreme Court examined (i) whether the Madhuri Patil directions were impermissibly legislative, (ii) whether they barred civil suits under CPC s.9, and (iii) whether they could extinguish a statutory right of appeal under the Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005. The Court held that the directions are a valid exercise of Articles 142 and 32 to fill a legislative vacuum, that the scheme created by the judgment functions as a ‘statute’ and can bar civil suits, and that the second sentence of direction 13, which eliminated the statutory right of appeal, is invalid. Consequently, the appeal was allowed, the writ appeal was restored, and the second appeal under the State Act remains available.
Issues considered
- Whether the fifteen directions issued in Kumari Madhuri Patil are impermissibly legislative in nature.
- Whether directions 11 and 12 of Madhuri Patil, which exclude civil court jurisdiction, violate Section 9 of the Code of Civil Procedure.
- Whether direction 13 of Madhuri Patil, which bars intra‑court appeals against single‑judge writ orders, is valid when a statutory right of appeal exists under the Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005.
Legislation cited
- Code of Civil Procedure, 1908s. Section 9
- Constitution of Indias. Article 136, s. Article 141, s. Article 142, s. Article 144, s. Article 226, s. Article 32, s. Article 36
- Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 (Madhya Pradesh)
Subjects
caste certificatescheduled casteverification committeeArticle 142Article 32Civil Procedure Codejurisdictionintra‑court appeallegislative vacuumaffirmative actionfundamental rights
Judgment
[2011] 15 (ADDL.) S.C.R. 1092
A DAYARAM
v.
SUDHIR BATHAM & ORS.
(CIVIL APPEAL N0.3467 of 2005)
OCTOBER 11, 2011
B
[R.V. RAVEENDRAN, P. SATHASIVAM AND
A.K. PATNAIK, JJ.]
Social Status certificate - Scheduled Caste certificate -
c Verification of - By State Level Screening Committee in
accordance with the Supreme Court decision in Madhuri Ratil
- In Madhuri Patil, a two Judge Bench of Supreme Court
issued fifteen directions to streamline the procedure for
issuance of caste (social status) certificates, their scrutiny and
approval - Whether directions 1 to 15 in Madhuri Patil were
0 impermissible, being legislative in nature - Held: The
Supreme Court has a constitutional duty to protect the
fundamental rights of Indian citizens - The directions issued
in Madhuri Patil are intrinsic to the fulfillment of fundamental
rights of backward classes of citizens and are also intended
E to preclude denial of fundamental rights to such persons who
are truly entitled to affirmative action benefits - In giving such
directions, Supreme court neither re-wrote the Constitution nor
resorted to Judicial legislation' - The directions 1to15 issued
in Madhuri Patil in exercise of power under Articles 142 and
F 32 of the Constitution, are valid and laudable, as they were
made to fill the vacuum in the absence of any legislation, to
ensure t/Jat only genuine scheduled caste and scheduled
tribe candidates secured the benefits of reservation and the
bogus candidates were kept out - By issuing such directions,
G Supreme Court was not taking over the functions of the
legislature but merely filling up the vacuum till legislature
chose to make an appropriate law - Constitution of India,
1950 - Article 142.
Social Status certificate - Scheduled Caste certificate -
H 1092
DAYARAM v. SUDHIR BATHAM & ORS. 1093
Verification of - By State Level Screening Committee in A
accordance with the Supreme Court decision in Madhuri Patil
- 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 s. 9 of CPC - Held: If a suit is to be filed in a civil court 8
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 Supreme Court, by way
of a stop-gap quasi-legislative action - The principle C
underlying s. 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 Supreme Court (and not under a statute), the
scheme formulated by the decision of the court is the 'statute', D
and therefore the scheme can expressly or impliedly bar
cognizance of such suits - 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, E
there is nothing irregular or improper in Supreme 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
- Permitting civil suits with provisions for appeals and further F
appeals would defeat the very scheme and will encourage the
very evils which Supreme Court wanted to eradicate -
Madhuri Patil provides for verification only to avoid false and
bogus claims - No reason why the procedure laid down in
Madhuri Patil should not continue in the absence of any
legislation governing the matter - Code of Civil Procedure, F
1908 - s. 9 "'"" Jurisdiction of civil courts - Constitution of India,
1950 - Article 226 - Writ petition relating to caste certificates.
Social Status certificate - Scheduled Caste certificate -
Verification of - By State Level Screening Committee in H
1094 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A accordance with the Supreme Court decision in Madhuri Patil
- Claim of respondents 1 to 3 that they belonged to 'Dhobi'
caste, a scheduled caste in Bhopal district of Madhya Pradesh
- Whether direction 13 in Madhuri Patil barring intra-court
appeals against decisions of Single Judges in writ petitions,
B when such appeals are specifically provided for in State
enactments/Letters Patents, was valid and proper- Held: The
'Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam,
2005" enacted by the State of Madhya Pradesh confers a right
of appeal before a division bench against the judgment of the
C single judge exercising jurisdiction under Article 226 of the
Constitution - 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
D 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
E to be exercised, when such exercise will directly conflict with
the express provisions of a statute - 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
F 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
G state Jaw or Letters Patent pennits an intra-court appeal, the
same will be available - Constitution of India, 1950-Articles
142 and 226 - 'Uchcha Nyaya/aya (Khandpeeth Ko Appeal)
Adhiniyam, 2005 fas enacted by State of Madhya Pradesh]
- Appeal - Right of appeal.
H
DAYARAM v. SUDHIR BATHAM & ORS. 1095
Respondents 1 to 3 claimed that they belonged to A
'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 8
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 holding that the caste certificates produced
by respondents 1 to 3 were false. Consequently, the
appointments of respondents 1 to 3 were cancelled. C
Respondents 1 to 3 challenged the report of the Collector
and their consequential termination by filing a writ
petition. The 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 D
this court in Madhuri Patil*. 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.
The State Level Screening Committee held an E
enquiry, and after hearing respondents 1 to 3 and the
appellant, made an order 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, respondents 1 to 3 again F
approached the High Court, by filing a writ petition. A
single Judge of the High Court 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 G
of termination of 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. The LPA was dismissed by a
division bench of the High Court, as not maintainable in
H
view of direction (13) of the caste verification procedure
1096 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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 present appeals were referred by a two Judge
B bench, by order of reference doubting the legality and
validity of the directions issued in Madhuri Patil.
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
C benefits given to genuine tribals, by claiming to belong
to scheduled tribes and 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)
D certificates, their scrutiny and approval, this Collrt issued
fifteen directions.
In view of the reference order, the following
questions arose for consideration:
(i) Whether directions 1 to 15 in Madhuri Patil are
E 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
F 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
G enactments/Letters Patents, is valid and
proper?
Disposing the appeals, the Court
HELD:
H
DAYARAM v. SUDHIR BATHAM & ORS. 1097
Re: Question (i) directions (1) to (15) in Kumari Madhuri A
Patil in general
1. The Supreme 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 B
a vacuum on account of the absence of any law to
protect and enforce such rights, this Court has 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 c
traditionally available under writ jurisdiction by issuing
appropriate directions or guidelines to protect the
fundamental rights and make them meaningful. [Para 6]
[1111-F-G]
1.2. In a given situation when laws are found to be D
inadequate for the purpose of grant of relief, the court can
exercise its jurisdiction under Article 142 of the
Constitution. The 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 E
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. [Para 10] [1115-A-C]
F
1.3. 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 G
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 H
1098 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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. Directions
issued in the exercise of Judicial Power can fashion
8 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
C are also intended to preclude denial of fundamental rights
to such persons who are truly entitled to affirmative
action benefits. [Para 12] [1115-H; 1116-A-E]
1.4. The directions in Madhuri Patil are based on a
principle. The principle is wherever the interests of
weaker sections are adversely affected due to
0
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.
[Para 13] [1117-8-D]
E 1.5. The directions 1 to 15 issued in Madhuri Patil 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 legislation, to
ensure that only genuine scheduled caste and scheduled
tribe candidates secured the benefits of reservation and
F 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. [Para 14]
[1117-E-F]
G
S. P. Gupta v. Union of India (1981) Supp. SCC 87;
Bandhua Mukti Morcha v. Union of)ndia (1984) 3 SCC 161;
Vishaka v. State of Rajasthan (1997) 6 SCC 241; Vineet
Narain v. Union of India 1998 (1) SCC 226; Kalyan Chandra
Sarkar v. Rajesh Ranjan (2005) 3 SCC 284; Lakshmi Kant
H Pandey v. Union of India (1984) 2 SCC 244; Common Cause
DAYARAM v. SUDHIR BATHAM & ORS. 1099
v. Union of India (1996) 1 SCC 753; MC. Mehta v. State of A
Tamilnadu (1996) 6 SCC 756; Supreme Court Bar
Association v. Union of India (1998) 4 SCC 409 and
Divisional Manager, Aravali Golf Club vs. Chander Haas
2008 (1) sec 683 - relied on.
Kumari Madhuri Patil v. Additional Commissioner, Tribal B
Development (1994) 6 SCC 241*; and Common Cause vs.
Union of India 2008 (5) SCC 511 - referred to.
Nature of the Judicial process, page 124 - referred to.
Re: Question (ii) : Whether civil courts jurisdiction could c
be barred?
2.1. 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 D
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 E
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 F
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', G
and therefore the scheme can expressly or impliedly bar
cognizance of such suits. 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 H
1100 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A 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
8 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. [Para 19] [1120-8-H; 1121-A]
2.2. The assumption that para 15 of Madhuri Patil
c 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 tile writ
jurisdiction of the High Court under Article 226. AU that· ·
para 15 "Of Madhuri Patil does is to draw attention to the
settled parameters of judicial review and nothing more.
0
It is made 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. [Para 21] [1122-E-F]
E 2.3. 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
F 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
G 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
H giving due opportunity to the candidate to place any
DAYARAM v. SUDHIR BATHAM & ORS. 1101
material in support of his claim, and after making such A
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 B
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 C
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 D
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 E
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 F
claims for caste status as SC/ST and issue of caste
certificates, or in regard to verification of caste certificates
already obtained by candidates who seek the benefit of
reservation, relying upon such caste certificates. [Para
22] [1122-E-H; 1123-A-G]
G
2.4. 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 H
departments of Revenue/Social Welfare/Tribal Welfare,
1102 SUPREME COURT REPORTS [2011] 15 (ADDL) S.C.R.
A 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
8 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
C can always come up with an appropriate legislation to
substitute the said scheme. There is no reason why the
procedure laid down in Madhu:i Patil should not continue
in the absence of any legislation governing the matter.
[Para 23] [1123-H; 1124-A-C]
Vankamamidi Venkata Subba Rao vs. Chatlapal/i
D Seetharamaratna Ranganayakamma (1997) 5 SCC 460;
Rajasthan State Road Transport Corporation v. Bal Mukund
Bairwa (2009) 4 SCC 299; Dhulabai v. State of MP (1968) 3
SCR 662 - referred to.
E Re: Question (iii) : Whether a right of appeal can be taken
away by way of judicial order?
3.1. The State of Madhya Pradesh enacted the
'Uchcha Nyayalaya (Khandpeeth Ko Appeal) Ad'1iniyam,
2005" which is deemed to have come into force from
F 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. [Para 25] [1124-E]
3.2. A remedy by way of appeal, provided expressly
G by a statute cannot be taken away by an executive fiat
or a judicial order. [Para 26] [1124-H; 1125-A]
3.3. 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
H an express amendment to the Act or by repeal of that Act,
DAYARAM v. SUDHIR BATHAM & ORS. 1103
or by necessary intendment, that is where a clear A
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 8
under Article 142 is not intended to be exercised, when
such exercise will directly conflict with the express
provisions of a statute. [Para 28] [1127-F-H]
Asia Industries (P) Ltd. v. S.B. Sarup Singh (1965) 2
SCR 756; A.R. Antulay v. R.s.· Nayak (1988) 2 sec 602; c
Hoosein Kasam Dada (India) Ltd. vs. The State of Madhya
Pradesh and Ors. 1953 SCR 987 and Garikapatti Veeraya
v.N.Subbiah Choudhury (1957) SCR 488 - relied on.
Conclusion
4. In view of the above, it is held that the second D
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 E
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 F
state law or Letters Patent permits an intra-court appeal,
the same will be available. [Para 29] [1128-A-C]
Case Law Reference:
(1994) 6 sec 241 referred to Para 1
(1981) Supp. sec 87 relied on Para 7 G
(1984) 3 sec 161 relied on Para 7
(1997) 6 sec 241 relied on Para 8
1998 (1) sec 226 relied on Para 9
(2005) 3 sec 284 relied on Para 10
H
1104 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A (1984) 2 sec 244 relied on Para 10
(1996) 1 sec 753 relied on Para 10
(1996) 6 sec 756 relied on Para 10
(1998) 4 sec 409 relied on Para 11
2008 (1) sec 683 relied on Para 13
B 2008 (5) sec 511 referred to Para 13
(1997) 5 sec 460 referred to Para 16
(2009) 4 sec 299 referred to Para 17
(1968) 3 SCR 662 referred to Para 18
c (1965) 2 SCR 756 relied on Para 26
(1988) 2 sec 602 relied on Para 26
1953 SCR 987 relied on Para 27
(1957) SCR 488 relied on Para27
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 3467 of 2005.
From the Judgment & Order dated 4.8.2003 of the High
Court of Madhya Pradesh at Jabalpur in Letters Patent Appeal
No. 409 of 2003.
E WITH
C.A. No. 3468 of 2005
Gopal Subramanium, SG, Anand Verma, B.K. Satija,
Akshat Srivastava, P.P. Singh, lnderjeet Yadav, Vikas
Upadhyay, B.S. Banthia, Satyapal Khushal Chand Pasi for the
F appearing parties.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Respondents 1 to 3 claimed
that they belonged to 'Dhobi' caste, a scheduled caste in
G 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
H had produced false caste certificates. The Collector enquired
C!lAYARAM v. SUDHIR BATHAM & ORS. 1105
[R.V. RAVEENDRAN, J.]
into the matter and gave a report dated 20.1.2000 holding that A
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. 266612000. The Madhya Pradesh High Court B
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 C
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 0
an order dated 4.2.2002 holding that respondents 1 to 3 did
not belong to 'Dhabi' 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.207412002. A learned
single Judge of the High Court, by order dated 9.3.2003, E
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 service with a direction to reinstate respondents
1 to 3 with all consequential benefits. The said order was F
challenged by the appellants by filing a Letters Patent Appeal
(LPA No.40912003). 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 G
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.346712005. The appellant has
also challenged the order of the learned Single Judge by filing H
1106 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
8
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
c 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.
D
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
E 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."
F 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
G 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. lt1at 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
H
DAYARAM v. SUDHIR BATHAM & ORS. 1107
[R.V. RAVEENDRAN, J.]
legislature. The court can neither creates an appeal nor A
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
~~: B
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 c
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 D
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 E
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 F
utmost expedition and promptitude. To streamline the
procedure for the issuance of a casie (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 G
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 Manda! level.
2. The parent, guardian or the candidate, as the case may H
1108 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A 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
B 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
c 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/
D Tril.Jal Welfare/Backward Class Welfare, as the case may,
and (Ill) in the case of Scheduled Castes another officer
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
E 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
F investigate into the social status claims................. .
6. The Director concerried, 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
G 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
H
DAYARAM v. SUDHIR BATHAM & ORS. 1109
[R.V. RAVEENDRAN, J.]
Committee may make such inquiry as it deems expedient A
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 B
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 C
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 D
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 E
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 F
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- G
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 H
1110 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 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.
B
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.
c
14. In case, the certificate obtained or social status
claimed is found to be false, the parenUguardian/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
D 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,
E
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
F 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.
G [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
H the education of the candidate admitted/appointed on false
DAYARAM v. SUDHIR BATHAM & ORS. 1111
[R.V. .RAVEENDRAN, J.)
social status or further continuance therein, every State should A
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 B
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? c
(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? D
(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? E
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 F
enforced, but there was a vacuum on account of the absence
of any law to protect and enforce such rights, this Court has
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 G
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 : H
1112 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A "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
B 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
c 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-
D 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
E 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
F 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
G
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
H in the constitutional values and who are ready to use law
DAYARAM v. SUDHIR BATHAM & ORS. 1113
[R.V. RAVEENDRAN, J.]
as an instrument for achieving the constitutional A
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 B
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 C
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 D
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 E
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." F
(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 G
vacuum. After detailed consideration, this Court held:
"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 H
1114 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 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
8 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
c 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
D 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 becaJse
its field is co-terminus with that the legislature, and where
E 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.
F
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
G
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 authorities, civil and judicial,
· in the territory of India to act in aid of this Court."
H (emphasis supplied)
DAYARAM v. SUDHIR BATHAM & ORS. 1115
[R.V. RAVEENDRAN, J.)
10. In Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) A
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 B
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, C
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. D
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 t~is Court held:
E
"Indeed this Court is not a court of restri(fted jurisdiction
of only dispute-settling. It is well recognized and
established that this court has always been a Jaw maker
and its role travels beyond merely dispute ~~ttling. It is a
"problem solver in the nebulous provisions dealing with the F
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 exe.rcised
when their exercise may come directly in conflict witli. what G
has been expressly provided for in a statute dealing
expressly with the subject." ·
(emphasis suppli~d)
12. The directions issued in Madhuri Patil were towards_ H
1116 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 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
B 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
C 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 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
D 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
E 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
F 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-ove~ the functions which belong to another organ of
the State. The court also lamented upon the tendency of some
G 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
H of the executive or legislature. In fact in the very decision this
DAYARAM v. SUDHIR BATHAM & ORS. 1117
[R.V. RAVEENDRAN, J.]
court further observed that its observations did not mean that A
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 B
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 C
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 D
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 E
Constitution, are valid and laudable, as they were made to fill
the vacuum in the absence of any 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 dir~ctions, this court was not F
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?
G
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
H
1118 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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
c expressly or impliedly barred."
16. In Vankamamidi Venkata Subba Rao vs. Chatlapal/i
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
D 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 .....
E 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
F provide alternative mode of resolution of disputes with
Jess expensive but expeditious disposal ....... lt 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
G
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
H special right or liability and provides procedure for the
DAYARAM v. SUDHIR BATHAM & ORS. 1119
[R.V. RAVEENDRAN, J.]
determination of the right or liability and further lays down A
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 8
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) c
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 D
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
impliedly barred by any statute. Ex facie, in terms of
Section 9 of the Code, civil courts can try all suits, unless E
barred by statute, either expressly or by necessary
implication .. "
(emphasis supplied)
18. In Dhulabai v. State of MP (1968) 3 SCR 662 this F
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 G
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.
H
1120 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A (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."
B 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
c 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
D 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
E 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
F 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
G 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
H which considered it, state that the civil court will have jurisdiction
DAYARAM v. SUDHIR BATHAM & ORS. 1121
[R.V. RAVEENDRAN, J.]
except where the cognizance of suits of civil nature is either A
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, B
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 c
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 D
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 E
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 : F
"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 G
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 H
1122 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
0
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 Mad/ruri Patil extracted
E 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
F 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
G 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
H relations or friend and persons who have knowledge about the
DAYARAM v. SUDHIR BATHAM & ORS. 1123
[R.V. RAVEENDRAN, J.]
social status of the candidate and submits a report to the A
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 8
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. C
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 D
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 E
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 F
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 ih regard to verification of caste G
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, H
1124 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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
C 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
0
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
E 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
F 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:
G "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."
H 26. A remedy by way of appeal, provided expressly by a
DAYARAM v. SUDHIR BATHAM & ORS. 1125
[R.V. RAVEENDRAN, J.]
statute cannot be taken away by an executive fiat or a judicial A
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 B
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, c
expressly or by necessary implication, not taken away the
right of 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) D
In AR. 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 E
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 F
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 G
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 H
1126 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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."
(emphasis supplied)
B
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
C 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:
D "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
E 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.
F Shaikh bin Andu (1908) ILR 32 Born 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
G 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
H
DAYARAM v. SUDHIR BATHAM & ORS. 1127
[R.V. RAVEENDRAN, J.]
away only by a subsequent enactment. The following principles A
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. B
(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 C
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 0
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 E
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. F
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 G
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. H
1128 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 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
B 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
C 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
D 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
E 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
F learned Single Judge is dismissed as infructuous.
We record our appreciation for the assistance rendered
by Mr. Gopal Subramanian, as Amicus Curiae.
B.B.B. Appeals disposed of.
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