TaxTMI 
TaxTMI 
2011 (10) TMI 526
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....nts 1 to 3 be verified by the State Level Screening Committee in accordance with the decision of this court in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development (1994) 6 SCC 241. The appellant, who had also approached the High Court, was permitted by the High Court to pursue his complaint against respondents 1 to 3 before the State Level Screening Committee. 2. The State Level Screening Committee held an enquiry, and after hearing respondents 1 to 3 and the appellant, made an order dated 4.2.2002 holding that respondents 1 to 3 did not belong to 'Dhobi' caste and directed cancellation of the caste certificates issued to them. Aggrieved by the order dated 4.2.2002 of the Committee, respondents 1 to 3 again approached the High Court, in WP No.2074/2002. A learned single Judge of the High Court, by order dated 9.3.2003, allowed the writ petition, quashed the order of the scrutiny committee and declared that the respondents 1 to 3 belonged to a scheduled caste. Consequently he quashed the orders of termination of 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 Lett....
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....n 100 CPC and this can only be done by the legislature and not by the courts. An appeal can be created by the legislature and abolished by the legislature. The court can neither creates an appeal nor abolish it. Since the aforesaid direction in Kumari Madhuri Patil case (supra), are in our opinion not valid, we are of the opinion that they require reconsideration by a larger bench." The directions in Madhuri Patil 4. In Madhuri Patil, a two Judge Bench of this Court found that spurious tribes and persons not belonging to scheduled tribes were snatching away the reservation benefits given to genuine tribals, by claiming to belong to scheduled tribes. This Court found that the admission wrongly gained or appointment wrongly obtained on the basis of false caste certificates had the effect of depriving the genuine scheduled castes or scheduled tribes of the benefits conferred on them by the Constitution. It also found that genuine candidates were denied admission to educational institutions or appointments to posts under the State, for want of social status certificate; and that ineligible or spurious candidates who falsely gained entry resorted to dilatory tactics and created....
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....pt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the concerned educational institution in which the candidate is studying or employed........... After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents/ guardian also in case candidate is minor to appear before the Committee with all evidenc....
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....authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. [emphasis supplied] This Court also observed that as the aforesaid procedure by providing for a fair and just verification, could shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine scheduled castes/scheduled tribes are not defeated by unscrupulous persons. Questions for consideration 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 Pati....
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....in a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal oriented approach." "What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives." In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 expanded upon the role of this Court thus: "But the question then arises as to what is the power which may be exercised by the Supreme Co....
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....ettled practice which has taken firm roots in our constitutional jurisprudence and that such exercise was essential to fill the void in the absence of suitable legislation to cover the field. Consequently this Court issued various directions with the following preamble: "As pointed out in Vishakha (supra), it is the duty of the executive to fill the vacuum by executive orders because its field is co-terminus with that the legislature, and where there is inaction even by the executive for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field. 59. On this basis, we now proceed to give the directions enumerated hereafter for rigid compliance till such time as the legislature steps in to substitute them by proper legislation. These directions made under Article 32 read with Article 142 to implement the rule of law wherein the concept of equality enshrined in Article 14 is embedded, have the force of law under Article 141 and by virtue of Article 144 it is the duty of all authorities, ....
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....ive action, the directions given by this Court to ensure that only genuine members of the scheduled castes or scheduled tribes were afforded or extended the benefits, are necessarily inherent to the enforcement of fundamental rights. In giving such directions, this court neither re-wrote the Constitution nor resorted to 'judicial legislation'. The Judicial Power was exercised to interpret the Constitution as a 'living document' and enforce fundamental rights in an area where the will of the elected legislatures have not expressed themselves. Benjamin Cardozo in his inimitable style said that the power, to declare the law carries with it the power and within limits the duty, to make law when none exists. (Nature of the Judicial Process, page 124). Directions issued in the exercise of Judicial Power can fashion modalities out of existing executive apparatus, to ensure that eligible citizens entitled to affirmative action alone derive benefits of such affirmative action. The directions issued in Madhuri Patil are intrinsic to the fulfillment of fundamental rights of backward classes of citizens and are also intended to preclude denial of fundamental rights to such persons who are trul....
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....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 directions, this court was not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law. Re: Question (ii) : Whether civil courts jurisdiction could be barred? 15. Direction (11) in Madhuri Patil states that order passed by the scrutiny committee shall be final and conclusive, subject only to challenge under Article 226 of the Constitution. Direction (12) states that no suit (before a civil court) or other proceedings before any other authority should lie against the orders of the scrutiny committee. The appellant contends that the right to file a civil suit cannot be taken away by a judicial order and that a suit could be barred only by a statute, either expressly or impliedly. Section 9 of the Code of Civil Procedure ('Code' for short) provides that courts have to try all civil suits unless barred. The relevant portion of the said section is extracted below : "The Courts shall (subject to the ....
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....CC 299 as under: "Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless barred by statute, either expressly or by necessary implication.." (emphasis supplied) 18. In Dhulabai v. State of MP (1968) 3 SCR 662 this Court enumerated the circumstances wherein civil court jurisdiction could be held to be excluded. They are: "(1) Where the statute gives a finality to the orders of the special tribunals, the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of ....
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....ne incidental submission about the nature and constitution of the scrutiny committee requires to be dealt with. It is submitted that scrutiny committee, directed to be constituted by Madhuri Patil, is neither a court nor a tribunal, but a committee consisting of government officers, namely, (i) an officer of Additional or Joint Secretary level or other officer higher in rank than the Director of the department concerned; (ii) the Director, Social Welfare/Tribal Welfare/Backward Classes Welfare, as the case may be; and (iii) an officer, who has an intimate knowledge in the verification and issuance of social status certificates in the case of scheduled castes and a Research Officer who has intimate knowledge in identifying tribes, communities etc., in the case of scheduled tribes. The scrutiny committee does not have any judicial member. It is submitted that in the event of caste status being erroneously decided by the scrutiny committee, which does not have any 'judicial' mind, the only remedy available for the aggrieved person would be a writ petition under Article 226 of the Constitution. Such a remedy cannot act as a efficacious substitute to the right to file a civil suit since....
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....ew and nothing more. We make it clear that nothing in para 15 of the decision in Madhuri Patil shall be construed as placing any fetters upon the High Court in dealing with writ petitions relating to caste certificates. 22. Each scrutiny committee has a vigilance cell which acts as the investigating wing of the committee. The core function of the scrutiny committee, in verification of caste certificates, is the investigation carried on by its vigilance cell. When an application for verification of the caste certificate is received by the scrutiny committee, its vigilance cell investigates into the claim, collects the facts, examines the records, examines the relations or friend and persons who have knowledge about the social status of the candidate and submits a report to the committee. If the report supports the claim for caste status, there is no hearing and the caste claim is confirmed. If the report of the vigilance cell discloses that the claim for the social status claimed by the candidate was doubtful or not genuine, a show-cause notice is issued by the committee to the candidate. After giving due opportunity to the candidate to place any material in support of his claim,....
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....id false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning for the last one and a half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil should not continue in the absence of any legislation governing the matter. Re: Question (iii) : Whether a right of appeal can be taken away by way of judicial order? 24. Direction (13) in Madhuri Patil directs that when a writ petition challenging the decision of the scrutiny committee is decided by a Single Judge of the High Court, no further appeal would lie against that order to the division bench and the decision of the learned Single Judge would only be subjected to special leave under Article 136 of the Constitution. 25. The State of Madhya Pradesh enacted the 'Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005" which is deemed to have come into force from 1.7.1981. The said Adhiniyam confers a right of appeal before a division bench against the judgment of the single judge exercising jurisdiction under Article 226 of the Constitutio....
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....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 other decisions dealing with the right of appeal vested in a litigant, on and from the date of commencement of the lis. Though in this case, we are not immediately concerned with interference with the vested right of appeal of a litigant, after the commencement of a lis, the principle underlying these two decisions are useful in understanding the right to appeal. A Constitution Bench of this Court in Hoosein Kasam Dada (India) Ltd.vs. The State of Madhya Pradesh and Ors. - 1953 SCR 987 held that right of appeal is a vested substantive right. This Court held: "The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State [1950] S.C.R. 941 and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd. (1952) S.C.J. 564, uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal t....