# 15 (ADDL.) S.C.R. 1092 DAYARAM v. SUDHIR BATHAM & ORS

- **Citation:** [2011] 15 S.C.R. 1092
- **Court:** Supreme Court of India
- **Decided:** 2011-10-11
- **Case number:** Civil Appeal No. D 3467 of 2005
- **Bench:** R.V. Raveendran, P. Sathasivam, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-1092-dayaram-v-sudhir-batham-ors-27587
- **Pages:** 37

## Headnote

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
0 approval - Whether directions 1 to 15 in Madhuri Patil were
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 r

## Text

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A
B
[2011] 15 (ADDL.) S.C.R. 1092
DAYARAM
v.
SUDHIR BATHAM & ORS.
(CIVIL APPEAL N0.3467 of 2005)
OCTOBER 11, 2011
[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
0 approval - Whether directions 1 to 15 in Madhuri Patil were
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
enquiry, and after hearing respondents 1 to 3 and the
appellant, made an order holding that respondents 1 to
E
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
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
view of direction (13) of the caste verification procedure
F
H
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.
E
F
G
H
In view of the reference order, the following
questions arose for consideration:
(i)
Whether directions 1 to 15 in Madhuri Patil are
impermissible, being legislative in nature?
(ii)
Whether directions 11 and 12 in Madhuri Patil,
which exclude the jurisdiction of the civil court
to entertain suits challenging the decisions of
the Caste Scrutiny Committees, violate section
9 of the Code of Civil Procedure?
(iii)
Whether direction 13 in Madhuri Patil barring
intra-court appeals against decisions of Single
Judges in writ petitions, when such appeals
are specifically provided for in State
enactments/Letters Patents, is valid and
proper?
Disposing the appeals, the Court
HELD:
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]
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
F
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
0 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.
[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
0 settled parameters of judicial review and nothing more.
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.
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[R.V. RAVEENDRAN, J.]
into the matter and gave a report dated 20.1.2000 holding that
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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
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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
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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,
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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
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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
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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
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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
8 bench, to a larger bench by order of reference dated 31.3.2010
doubting the legality and validity of the directions issued in
Madhuri Patil. We extract below the relevant portion of the
order of reference:
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"In Kumari Madhuri Patit's case, as many as fifteen
directions were given, which, in our opinion, are all
legislative in nature. In our opinion, if a Court feels that
some law should be made, then it can only make a
recommendation to that effect to the legislature but it
cannot itself legislate. It is upto the legislature to accept
the recommendation or not.
In Kumari Madhuri Patil case, the two Judge Bench of this
Court in direction No.13 observed as follows:
"The High Court would dispose of these cases as
expeditiously as possible within a period of three
months. In case, as per its procedure, the writ
petition/miscellaneous petition/matter is disposed
of by a single Judge, then no further appeal would
lie against that order to the Division Bench but
subject to special leave under Article 136."
In our opinion, the direction that no further appeal will lie
against the decision of a Single Judge of the High Court
to a division bench was clearly not valid. It is well settled
that an appeal is a creature of the statute and if the statute
or the Letters Patent of the High Court or rules provide for
an appeal, then an appeal will lie. For instance, the Court
cannot say that no second appeal under section 100 CPC
will be entertained in future by the High Court. 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
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
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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
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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
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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
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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
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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
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1108 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
be, shall file an affidavit duly sworn and attested by a
competent gazetted officer or non-gazetted officer with
particulars of castes and sub-castes, tribe, tribal
community, parts or groups of tribes or tribal communities,
the place from which he originally hails from and other
particulars as may be prescribed by the concerned
Directorate.
3. Application for verification of the caste certificate by the
Scrutiny Committee shall be filed at least six months in
advance before seeking admission into educational
institution or an appointment to a post.
4. All the State Governments shall constitute a Committee
of three officers, namely, (I) an Additional or Joint Secretary
or any officer higher in rank of the Director of the
concerned department, (II) the Director, Social Welfare/
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
knowledge in identifying the tribes, tribal communities,
parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell
consisting of Senior Deputy Superintendent of Police in
over all charge and such number of Police Inspectors to
investigate into the social status claims ................. .
6. The Director 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
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
DAYARAM v. SUDHIR BATHAM & ORS.
1109
[R.V. RAVEENDRAN, J.]
Committee may make such inquiry as it deems expedient
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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
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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
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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
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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
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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
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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 nonG
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.
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Article 226 of the Constitution.
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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 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
moral turpitude, disqualification for elective posts or offices
under the State or the Union or elections to any local body,
legislature or the Parliament.
15. As soon as the finding is recorded by the Scrutiny
Committee holding that the certificate obtained was false,
on its cancellation and confiscation simultaneously, it
should be communicated to the concerned educational
institution or the appointing authority by registered post with
acknowledgement due with a request to cancel the
admission or the appointment. The principal etc. of the
educational institution responsible for making the
admission or the appointing authority, should cancel the
admission/appointment without any further notice to the
candidate and debar the candidate for further study or
continue in office in a post.
[emphasis supplied]
This Court also observed that as the aforesaid procedure by
providing for a fair and just verification, could shorten.the undue
delay and also prevent avoidable expenditure for the State on
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
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endeavour to give effect to it and see that the constitutional
objectives intended for the benefit and advancement of the
genuine scheduled castes/scheduled tribes are not defeated
by unscrupulous persons.
Questions for consideration
5. In view of the reference order, the following questions
arise for consideration:
(i)
Whether directions 1 to 15 in Madhuri Patil are
impermissible, being legislative in nature?
(ii)
Whether directions 11 and 12 in Madhuri Patil,
which exclude the jurisdiction of the civil court to
entertain suits challenging the decisions of the
Caste Scrutiny Committees, violate section 9 of the
Code of Civil Procedure?
(iii)
Whether direction 13 in Madhuri Patil barring intracourt appeals against decisions of Single Judges
in writ petitions, when such appeals are specifically
provided for in State enactments/Letters Patents,
is valid and proper?
Re: Question (i) directions (1) to (15) in Kumari Madhuri
Patil in general
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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
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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 :
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1112 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
"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.