TMI Blog2011 (10) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - APPEAL NO.3467 of 2005 APPEAL NO.3468 of 2005 - - - Dated:- 11-10-2011 - R.V. RAVEENDRAN, SATHASIVAM, P AND PATNAIK, A.K. , JJ. JUDGMENT R.V. RAVEENDRAN, J. Respondents 1 to 3 claimed that they belonged to Dhobi caste, a scheduled caste in Bhopal district of Madhya Pradesh, and secured appointment to posts reserved for Schedule Castes. The appellant, who was the President of the Schedule Caste Employees Association, made a complaint to the Sub-Divisional Magistrate that respondents 1 to 3 did not belong to any scheduled caste and had produced false caste certificates. The Collector enquired into the matter and gave a report dated 20.1.2000 holding that the caste certificates produced by respondents 1 to 3 were false. Consequently, the appointments of respondents 1 to 3 were cancelled on 20.4.2000. Respondents 1 to 3 challenged the report of the Collector and their consequential termination in WP No. 2666/2000. The Madhya Pradesh High Court directed that the caste certificates of respondents 1 to 3 be veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be prescribed by the concerned Directorate. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of Scheduled Tribes, the Research Officer who has intimated knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/Miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgement due with a request to cancel the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rights in areas with legislative 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 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 issui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in regard to verification of 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. 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 selfaffidavits 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) 27. We may also refer to two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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