R.V. Raveendran, J. - (1.) Respondents 1 to 3 claimed that they belonged to Dhobi caste, a scheduled caste in Bhopal district of Madhya Pradesh, and secured appointment to posts reserved for Schedule Castes. The Appellant, who was the President of the Schedule Caste Employees Association, made a complaint to the Sub-Divisional Magistrate that Respondents 1 to 3 did not belong to any scheduled caste and had produced false caste certificates. The Collector enquired into the matter and gave a report dated 20.1.2000 holding that the caste certificates produced by Respondents 1 to 3 were false. Consequently, the appointments of Respondents 1 to 3 were cancelled on 20.4.2000. Respondents 1 to 3 challenged the report of the Collector and their consequential termination in WP No. 2666/2000. The Madhya Pradesh High Court directed that the caste certificates of Respondents 1 to 3 be verified by the State Level Screening Committee in accordance with the decision of this Court in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, (1994) 6 SCC 241. The Appellant, who had also approached the High Court, was permitted by the High Court to pursue his complaint against Respondents 1 to 3 before the State Level Screening Committee.
(2.) The State Level Screening Committee held an enquiry, and after hearing Respondents 1 to 3 and the Appellant, made an order dated 4.2.2002 holding that Respondents 1 to 3 did not belong to Dhobi caste and directed cancellation of the caste certificates issued to them. Aggrieved by the order dated 4.2.2002 of the Committee, Respondents 1 to 3 again approached the High Court, in WP No. 2074/2002. A learned single Judge of the High Court, by order dated 9.3.2003, allowed the writ petition, quashed the order of the scrutiny committee and declared that the Respondents 1 to 3 belonged to a scheduled caste. Consequently he quashed the orders of termination of 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 (LPA No. 409/2003). The LPA was dismissed by a division bench of the High Court, by order dated 4.8.2003 as not maintainable in view of direction (13) of the caste verification procedure in Madhuri Patil, which directed that "in case the writ petition is disposed of by a single Judge, then no further appeal would lie against that order to the division bench, but subject to special leave under Article 136." The said order of the division bench holding the appeal as not maintainable is challenged in Civil Appeal No. 3467/2005. The Appellant has also challenged the order of the learned Single Judge by filing a separate appeal in CA No. 3468/2005, to avoid difficulties in the event of being unsuccessful in CA No. 3467/2005. The Reference
(3.) These two appeals have been referred by a two Judge bench, to a larger bench by order of reference dated 31.3.2010 doubting the legality and validity of the directions issued in Madhuri Patil. We extract below the relevant portion of the order of reference: In Kumari Madhuri Patits 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 Code of Civil Procedure will be entertained in future by the High Court. That will be really abolishing Section 100 Code of Civil Procedure 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 ;