Full Judgment Text
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PETITIONER:
ASHOKA KUMAR THAKUR
Vs.
RESPONDENT:
STATE OF BIHAR AND ORS.
DATE OF JUDGMENT04/09/1995
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 75 1995 SCC (5) 403
JT 1995 (6) 390 1995 SCALE (5)115
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Kuldip Singh. J.
Constitutional validity of the criteria, for
determining the ‘creamy layer’ for the purpose of exclusion
from backward classes, laid-down by the States of Bihar and
Uttar Pradesh, has been challenged in these writ petitions
under Article 32 of the Constitution of India.
A Nine-Judge Bench of this Court in "Mandal case" -
Indra Sawhney vs. Union of India [1992] Supp. (3) SCC 217] -
authoritatively interpreted various aspects of Article 16(4)
of the Constitution of India. While holding that Article
16(4) aims at group backwardness this Court came to the
conclusion that socially advanced members of backward class
- ‘creamy layer’ - have to be excluded from the said
‘class’. It was held that the ‘class’ which remains after
excluding the ‘creamy layer’ would more appropriately serve
the purpose and object of Article 16(4)
The protective discrimination in the shape of job
reservations under Article 16(4) has to be programmed in
such a manner that the most deserving section of the
backward class is benefitted. Means-test by which ‘creamy
layer’ is excluded, ensures such a result. The process of
identifying backward class cannot be perfected to the extent
that every member of the said class is equally backward.
There are bound to be disparities in the class itself. Some
of the members of the class may have individually crossed
the barriers of backwardness but while identifying the class
they may have come within the collectivity. It is often
seen that comparatively rich persons in the backward class
are able to move in the society without being discriminated
socially. The members of the backward class are
differentiated into superior and inferior. The
discrimination which was practiced on them by the higher
class is in turn practiced by the affluent members of the
backward class on the poorer members of the same class. The
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benefits of social privileges like job reservations are
mostly chewed up by the richer or more affluent sections of
the backward class and the poorer and the really backward
sections among them keep on getting poorer and more
backward. It is only at the lowest level of the backward
class where the standards of deprivation and the extent of
backwardness may be uniform. The jobs are so very few in
comparison to the population of the backward classes that it
is difficult to give them adequate representation in the
State services. It is, therefore, necessary that the
benefit of the reservation must reach the poorer and the
weakest section of the backward class. Economic ceiling to
cut off the backward class for the purpose of job
reservations is necessary to benefit the needy sections of
the class. The means-test is, therefore, imperative to
skim-off the affluent section of the backward class.
We may refer to the opinions given by the learned
Judges in ‘Mandal case’ on the question of exclusion of the
‘creamy layer’ from the backward class.
P.B. Sawant, J. spoke about the ‘creamy layer’ in the
following words:
"The correct criterion for judging the
forwardness of the forwards among the
backward classes is to measure their
capacity not in terms of the capacity of
others in their class, but in terms of
the capacity of the members of the
forward classes, as stated earlier. If
they cross the Rubicon of backwardness,
they should be taken out from the
backward classes and should be made
disentitled to the provisions meant for
the said classes.
It is necessary to highlight
another allied aspect of the issue, in
this connection. What do we mean by
sufficient capacity to compete with
others? Is it the capacity to compete
for Class IV or Class III or higher
class posts? A Class IV employee’s
children may develop capacity to compete
for Class III posts and in that sense,
he and his children may be forward
compared to those in his class who have
not secured even Class IV posts. It
cannot, however, be argued that on that
account, he has reached the "creamy"
level. If the adequacy of
representation in the services as
discussed earlier, is to be evaluated in
terms of qualitative and not mere
quantitative representation, which means
representation in the higher rungs of
administration as well, the competitive
capacity should be determined on the
basis of the capacity to compete for the
higher level posts also. Such capacity
will be acquired only when the backward
sections reach those levels or at least,
near those levels."
R.M. Sahai,J. held that the exclusion of ‘creamy layer’
is a social purpose. Any legislation or executive action to
remove such persons individually or collectively cannot be
constitutionally invalid. The learned Judge elaborated his
conclusions as under:-
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"More backward and backward is an
illusion. No constitutional exercise is
called for it. What is required is
practical approach to the problem. The
collectivity or the group may be
backward class but the individuals from
that class may have achieved the social
status or economic affluence.
Disentitle them from claiming
reservation. Therefore, while reserving
posts for backward classes, the
departments should make a condition
precedent that every candidate must
disclose the annual income of the
parents beyond which one could not be
considered to be backward. What should
be that limit can be determined by the
appropriate State. Income apart,
provision should be made that wards of
those backward classes of persons who
have acheived a particular status in
society either political or social or
economic or if their parents are in
higher services then such individuals
should be precluded to avoid
monopolisation of the services reserved
for backward classes by a few. Creamy
layer, thus, shall stand eliminated."
<SLE>
B.P. Jeevan Reddy, J. speaking for the Court
enaunciated the concept of ’creamy layer’ in the following
words:
"The very concept of a class denotes a
number of persons having certain common
traits which distinguish them from the
others. In a backward class under
clause (4) of Article 16, if the
connecting link is the social
backwardness, it should broadly be the
same in a iven class. If some of the
members are far too advanced socially
(which in the context, necessarily means
economically and, may also mean
educationally) the connecting thread
between them and the remaining class
snaps. They would be misfits in the
class. After excluding them alone,
would the class be a compact class. In
fact, such exclusion benefits the truly
backward. Difficulty, however, really
lies in drawing the line - how and where
to draw the line? For, while drawing
the line, it should be ensured that it
does not result in taking away with one
hand what is given by the other. The
basis of exclusion should not merely be
economic, unless, of course, the
economic advancement is so high that it
necessarily means social advancement.
Let us illustrate the point. A member
of backward class, say a member of
carpenter caste, goes to Middle East and
works there as a carpenter. If you take
his annual income in rupeees, it would
be fairly high from the Indian standard.
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Is he to be excluded from the Backward
Class? Are his children in India to be
deprived of the benefit of Article
16(4)? Situation may, however, be
different, if he rises so high
economically as to become - say a
factory owner himself. In such a
situation, his social status also rises.
He himself would be in a position to
provide employment to others. In such a
case, his income is merely a measure of
his social status. Even otherwise there
are several practical difficulties too
in imposing an income ceiling. For
example, annual income of Rs.36,000 may
not count for much in a city like
Bombay, Delhi or Calcutta whereas it may
be a handsome income in rural India
anywhere. The line to be drawn must be
a realistic one. Another question would
be, should such a line be uniform for
the entire country or a given State or
should if differ from rural to urban
areas and so on. Further, income from
agriculture may be difficult to assess
and, therefore, in the case of
agriculturists, the line may have to be
drawn with reference to the extent of
holding. While the income of a person
can be taken as a measure of his social
advancement, the limit to be prescribed
should not be such as to result in
taking away with one hand what is given
with the other. The income limit must
be such as to mean and signify social
advancement. At the same time, it must
be recognised that there are certain
positions, the occupants of which can be
treated as socially advanced without any
further enquiry. For example, if a
member of a designated backward class
becomes a member of IAS or IPS or any
other All India Service, his status in
society (social status) rises; he is no
longer socially disadvantaged. His
children get full opportunity to realise
their potential. They area in no way
handicapped in the race of life. His
salary is also such that he is above
want. It is but logical that in such a
situation, his children area not given
the benefit of reservation. For by
giving them the benefit of reservation,
other disadvantaged members of that
backward class may be deprived of that
benefit. It is then argued for the
respondents that ’one swallow doesn’t
make the summer’, and that merely
because a few members of a caste or
class become socially advanced, the
class/caste as such does not cease to be
backward. It is pointed out that clause
(4) of Article 16 aims at group
backwardness and not individual
backwardness. While we agree that
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clause (4) aims at group backwardness,
we feel that exclusion of such socially
advanced members will make the ’class’ a
truly backward class and would more
appropriately serve the purpose and
object of clause (4). (this discussion
is confined to Other Backward Classes
only and has no relevance in the case of
Scheduled Tribes and Scheduled
Castes).... Keeping in mind all these
considerations, we direct the Government
of India to specify the basis of
exclusion - whether on the basis of
income, extent of holding or otherwise -
of ‘creamy layer’".
<SLE>
It is difficult to draw a line where a person,
belonging to the backward class, ceases to be so and becomes
part of the ‘creamy layer’. It is not possible to lay down
the criteria exhaustively. This Court how, however,
speaking through Jeevan Reddy, J., dealt with the question
elaborately and has brought home the point succinctly by
illustrating various stages where a member of a backward
class ceases to be backward and starts floating with the
‘creamy layer’.
Pursuant to the directions by this Court in ‘Mandal
case’ Government of India, Ministry of Personnel, Public
Grievances and Pensions (Department of Personnel and
Training) issued office memorandum dated September 8,1993
providing for 27% reservation for the Other Backward
Classes. Para 2(c) of the memorandum excludes the
persons/sections mentioned in column 3 of the Schedule to
the said memorandum. In other words, the Schedule consists
of the ‘creamy layer’. It would be useful to reproduce the
relevant paras of the said memorandum hereunder:
"OFFICE MEMORANDUM
The undersigned is directed to refer to this
Department’s O.M. No. 36012/31/90-Estt. (SCT), dated the
13th August, 1990 and 25th September, 1991 regarding
reservation for Socially and Educationally Backward Classes
in Civil Posts and Services under the Government of India
and to say that following the Supreme Court judgment in the
Indira sawhney and others Vs. Union of India and others case
(Writ Petition (Civil) No.930 of 1990) the Government of
India appointed an Expert Committee to recommend the
criteria for exclusion of the socially advanced
persons/sections from the benefits ; of reservations for
Other Backward Classes in civil posts and services under the
Government of india.
2. Consequent to the consideration of the Expert
Committee’s recommendations this Department’s Office
Memorandum No.36012/31/90-Estt. (SCT), dated 13.8.90
referred to in para (1) above is hereby modified to provide
as follows:
(a) 27% (twenty seven percent) of the vacancies in
civil posts and services under the Government of India, to
be filled through direct recruitment, shall be reserved for
the Other Backward Classes. Detailed instructions relating
to the procedure to be followed for enforcing reservation
will be issued separately.
(b) ..........
(c) (i) The aforesaid reservation shall not apply to
persons/sections mentioned in column 3 of the Schedule to
this office memorandum.
(ii) The rule of exclusion will not apply to persons
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working as artisans or engaged in hereditary occupation,
callings. A list of such occupations, callings will be
issued separately by the Ministry of Welfare.
(d) ..........
(e) ..........
3. ..........
SCHEDULE
Description of category To whom rule of exclusion
will apply
1 2 3
I. CONSTITUTIONAL POSTS Son(s) and daughter(s) of
(a) President of India;
(b) Vice President of India;
(c) Judges of the Supreme
Court and of the High
Courts;
(d) Chairman & Members of UPSC
and of the State Public
Service Commission; Chief
Election Commissioner;
Comptroller & Auditor
General of India;
(e) persons holding Constitu-
tional positions of like
nature.
II. SERVICE CATEGORY Son(s) and daughter(s) of
A. Group A/Class I officers
of the All india central
and State Services
(Direct Recruits). (a) parents, both of whom area
Class I officers;
(b) parents, either of whom is
a Class I officers;
(c) parents, both of whom area
Class I officers, but one
of them dies or suffers
permanent incapacitation.
(d) parents, either of whom is
a Class I officer and
such parent dies or
suffers permanent incap-
acitation and before such
death or such incapaci-
tation has had the
benefit of employment in
any International Organ-
isation like UN, IMF,
World Bank, etc. for a
period of not less than 5
years.
(e) parents, both of whom area
class I officers die or
suffer permanent incapa-
citation and before such
death or such incapac-
itation of the both,
either of them has had
the benefit of employment
in any International
Organisation like UN,IMF,
World Bank, etc. for a
period of not less than 5
years.
Provided that the rule of
exclusion shall not apply in
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the following cases:
(a) Sons and daughters of
parents either of whom or
bot of whom are Class-I
officers and such parent-
(s) dies/die or suffer
permanent incapacitation.
(b) A lady belonging to OBC
category has got married
to a Class-I officer, and
may herself like to apply
for a job.
B. Group B/Class II officers
of the Central & State Services
(Direct Recruitment)
Son(s) and daughter(s) of
(a) parents both of whom are
Class II officers.
(b) parents of whom only the
husband is a Class II
officer and he gets into
Class I at the age of 40
or earlier.
(c) parents, both of whom are
Class II officers and one
of them dies or suffers
permanent incapacitation
and either one of them
has had the benefit of
employment in any Inter-
national Organisation
like UN, IMF, World Bank,
etc. for a period of not
less than 5 years before
such death or permanent
incapacitation;
(d) parents of whom the
husband is a Class I
officer (direct recruit
or pre-forty promoted)
and the wife is a Class
II officer and the wife
dies; or suffers perm-
anent incapacitation; and
(e) parents, of whom the wife
is a Class I officer
(Direct Recruit or pre-
forty promoted) and the
husband is a Class II
officer and the husband
dies or suffers permanent
incapacitation Provided
that the rule of excl-
usion shall not apply in
the following cases:
Sons and daughters of
(a) Parents both of whom are
Class II officers and
both or them dies or
suffers permanent
incapacitation.
(b) Parents, both of whom area
Class II officers and
both of them die or
suffer permanent incapac-
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itation, even though
either of them has had
the benefit of
employement in any
International Organi-
sation like UN, Imf,
World Bank, etc. for a
period of not less than 5
years before their death
or permanent incapac-
itation
C. Employees in Public sector
Undertakings etc.
The criteria enumerated in A
& B above in this Category
will apply mutatis mutandi to
officers holding equivalent or
comparable posts in PSUs,
Banks, Insurance Organisations
Universities, etc. and also to
equivalent or comparable posts
and positions under private
employement, pending the
evaluation of the posts on
equivalent or comparable basis
in these institutions, the
criteria specified in Category
VI below will apply to the
officers in these
Institutions.
III. ARMED FORCES INCLUDING
PARAMILITARY FORCES (Persons
holding civil posts area not included)
Sons(s) and daughter(s) of
parents either or both of whom
is or are in the rank of
Colonel and above in the Army
and to equivalent posts in the
Navy and the Air Force and the
Para Military Forces.
Provided that :-
(i) if the wife of an Armed
Forces Officer is herself
in the Armed Forces (i.e.
the category under consi-
deration) the rule of
exclusion will apply only
when she herself has
reached the rank of
Colonel;
(ii) the service ranks below
Colonel of husband and
wife shall not be clubbed
together;
(iii) If the wife of an offic-
er in the Armed Forces is
in civil employement,
this will not be taken
into account for applying
the rule of exclusion
unless she falls in the
service category under
item No.II in which case
the criteria and
conditions enumerated
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therein will apply to her
independently
IV. PROFESSIONAL CLASS AND THOSE
ENGAGED IN TRADE AND INDUSTRY
(I) Persons engaged in profession
as a doctor, lawyer, chartered
accountant, Income-Tax consultant,
financial or management
consultant, dental surgeon,
engineer, architect, computer
specialist, film artists and
other film professional, author,
playwright, sports person, sports
professional, media professional
or any other vocations of like
status.
Criteria specified against
Category VI will apply:-
(II) Persons engaged in trade,
business and industry.
Criteria specified against
Category VI will apply:
Explanation:
(i) Where the husband is in
some profession and the
wife is in a Class II or
lower grade employment,
the income/wealth test
will apply only on the
basis of the husband’s
income
(ii) If the wife is in any
profession and the
husband is in employment
in a Class II or lower
rank post, then the
income/wealth criterion
will apply only on the
basis of the wife’s
income and the husband’s
income will not be
clubbed with it.
V. PROPERTY OWNERS
A. Agricultural holdings Son(s) and daughter(s) of
persons belonging to a family
(father, mother and minor
children) which owns
(a) only irrigated land which
is equal to or more than 85%
of the statutory area, or
(b) both irrigated and
unirrigated land, as follows:
(i) The rule of exclusion will
apply where the pre-condition
exists that the irrigated area
(having been brought to a
single type under a common
denominator) 40% or more of
the statutory ceiling limit
for irrigated land (this being
calculated by excluding the
unirrigated portions). If
this pre-condition of not less
than 40% exists, then only the
area of unirrigated land will
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be taken into account. This
will be done by converting the
unirrigated land on the basis
of the conversion formula
existing, into the irrigated
type. The irrigated area so
computed from unirrigated land
shall be added to the actual
area of irrigated land and if
after such clubbing together
the total area in terms of
irrigated land is 80% or more
of the statutory ceiling limit
for irrigated land, then the
rule of exclusion will apply
and dis-entitlement will
occur.
(ii) The rule of exclusion
will not apply if the land
holding of a family is
exclusively unirrigated.
B. Plantations
(i) Coffee, tea, rubber, etc.
Criteria of income/wealth
specified in Category VI below
will apply.
(ii) Mango, citrus, apply
plantations etc.
Deemed as agricultural holding
and hence criteria at A above
under this Category will
apply.
C. Vacant land and/or
buildings in urban areas
or urban agglomorations
Criteria specified in Category
VI below will apply.
Explanation: Building may be
used for residential,
industrial or commercial
purpose and the like two or
more such purposes.
VI. INCOME/WEALTH TEST Son(s) and daughter(s) of
(a) Persons having gross
annual income of Rs. 1
lakh or above or
possessing wealth above
the the exemption limit
as prescribed in the
Wealth Tax Act for a
period of three consecu-
tive years.
(b) Persons in Categories I,
II, III and V A who are
not disentitled to the
benefit of reservation
but have income from
other sources of wealth
which will bring them
within the income/wealth
criteria mentioned in (a)
above.
Explanation :
(i) Income from salaries or
agricultural land shall
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not be clubbed;
(ii) The income criteria in
terms of rupee will be
modified taking into
account the change in its
value every three years.
If the situation,
however, so demands, the
interregnum may be less.
Explanation: Wherever the
expression "permanent incapac-
itation" occur in this schedu-
le, it shall mean incapacitation
which results in putting an
officer out of service."
We have carefully examined the criteria for identifying
the ‘creamy layer’ laid down by the government of India in
the Schedule, quoted above, and we are of the view that the
same is in conformity with the law laid down by this Court
in ‘Mandal case’. We have no hesitation in approving the
rule of exclusion framed by the Government of India in para
2(c) read with the Schedule of the Office Memorandum quoted
above. Learned counsel for the petitioners have also
vehemently commended that the State Governments should
follow the Government of India and lay down similar criteria
for identifying the ‘creamy layer’.
In the light of the above background, we may examine
the criteria for the identification of the ‘creamy layer’ as
laid down by the States of Bihar and Uttar Pradesh.
The Governor of Bihar promulgated Ordinance No.5 of
1995 on January 27, 1995 called "the Bihar reservation of
vacancies in posts and services (for Scheduled Castes,
Scheduled Tribes and other Backward Classes) (Amendment)
Ordinance, 1995. By the said Ordinance Section 4 of the
Bihar Act 3 of 1992 was amended and after the second
proviso, the following proviso was added:
"Provided also that reservation
under clause (d) shall not apply to the
category of backward classes specified
in Schedule III."
Schedule III is reproduced
hereunder:
"Schedule III
[See Section 4(2)]
1. The son or daughter of the
President of India, the Vice-President
of India, the Chief Justice and Judges
of the Supreme Court of India, the Chief
Justice and Judges of the High Courts,
the Chairman and Members of the Union
Public Service Commission and the Chief
Election Commissioner;
2. The son or daughter of such
officers who has been directly recruited
in Class I Services of the Central
Government or a State Government or an
Undertaking or an institution fully or
partially financed by them; and
(a) Whose income from salary is
rupees ten thousand or more
per mensum, and
(b) Whose wife or husband, as the
case may be, is at least a
graduate, and
(c) Who or his wife or her husband,
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as the case may be, owns a
house in an urban area, and
(d) Whose mother or father has also
been directly recruited to
Class I services.
Explanation.-- Class I means the
pay bracket fixed by the State
Government from time to time for Class
I.
3. The son or daughter of such
person engaged as doctor, advocate,
chartered accountant, tax consultant,
financial consultant, management
consultant, architect or other
professionals, and
(a) Whose average income from all
sources for three consecutive
financial years is not less
than rupees ten lakhs per
annum; and
(b) Whose wife or husband, as the
case may be, is atleast a
graduate; and
(c) Whose family owns immovable
property at least of rupees
twenty lakhs.
4. The son or daughter of such
person engaged in trade or commerce, and
--
(a) Whose average income from all
sources for three consecutive
financial years is not less
than rupees ten lakhs per
annum; and
(b) Whose wife or husband, as the
case may be, is at least a
graduate; and
(c) Whose family owns immovable
property at least of rupees
twenty lakhs.
5. The son or daughter of such
industrialist:-
(a) Whose level of investment in
running unit or units is more
than rupees ten crores; and
(b) Such unit or units are engaged
in commercial production for
at least five years; and
(c) His wife or husband, as the
case may be, is at least a
graduate.
6. The son or daughter of such
agricultural land-holder:-
(a) Whose average income from all
sources other than agriculture
for three consecutive
financial years is not less
than rupees ten lakhs per
annum; and
(b) Whose wife or husband, as the
case may be, is at least a
graduate; and
(c) Who or his wife or her husband,
as the case may be, owns house
at least of rupees twenty
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lakhs in an urban area.
7. The son or daughter of person, other
than the persons specified in serial 1 to 6
of this Schedule:-
(a) Whose main source of income is
other than animal husbandary,
fisheries, poultry, weaving,
craftsmanship, handicraft and
artisanship; and
(b) Whose average income from all
sources for three consecutive
financial years is not less
than rupees ten lakhs per
annum; and
(c) Whose wife or husband, as the
case may be, is at least a
graduate; and
(d) Whose family owns immovable
property at least of rupees
twenty lakhs/
8. If a person included in serial 1 to
7 of this Schedule performs inter-
castes marriage with a backward
class person other than the
categories under serial 1 to 7 of
this Schedule, his/her son or
daughter shall not be excluded.
Note.--I. The level of income and the
value of property shall be modified
taking into account the variation
in the money value every three
years or less period, as the
situation may demand.
II. An affidavit filed by the
father or the mother of the
candidate, or in case of their
death, by the candidate himself,
shall be deemed to be decisive in
respect of income, value of
property and educational
qualification."
So far as the State of Uttar Pradesh is concerned the
categories sought to be excluded from the backward classes
(creamy layer) are mentioned in Schedule II read with
Section 3(b) of the Uttar Pradesh Public Services
Reservation of Scheduled Castes and Scheduled tribes and
other backward classes Act, 1994. The said categories are
as under:-
"Categories of Persons excluded Criteria for
exclusion
1. sons and daughters of
(a) IAS, IFS,IPS Indian
Forest Service other
central service (direct
or promotee)
(i) Income from salary of
such member of service is
10,000/- or above per
mensum.
(b) U.P. Civil Service, U.P.
Police Service State
Service. (direct recruit).
(ii) Spouse is at least
graduate.
(iii) He or his spouse
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owns a house in urban
area.
(c) Group A.Class I officers
of any Deptt. or Ministry
of Govt. of India or
Educational, Research or
other institutions (no.1
included in above (a)).
(d) Group A/Class-I officer of
any Deptt. or Institution
of State Govt. (No.1 included
in (b) above.
(e) An officer of defence forces
or Para Military forces not
below rank of colonel or equivalent.
2. SONS AND DAUGHTERS OF --
persons engaged in profession as
a doctor, surgeon, engineers,
lawyer, architect, Chartered
Accountant, media & information
professional, management and
other consultant film artist &
other film professional, running
educational institution or
coaching institute or engaged
in the business as a share broker
or in entertainment business
i) his average income from all
sources should not be less
than Rs.10 lakhs per year for
3 consecutive financial years
ii) Spouse at least a
graduate.
iii) His family property
(immovable) should be worth
Rs.20 lakh.
3. Sons and daughters of Businessman.
i) Provided whose average
income for 3 consecutive
financial years is not less
than Rs.10 lakh per annum.
ii) Spouse at least a
graduate.
iii) immovable family property
worth at least 20 lakhs.
4. Sons and Daughters of Industrialist.
i) whose level of investment
in running units is over Rs.10
crore and such units are
engaged in production for at
least 5 years
ii) spouse at least a
graduate.
5. Sons and Daughters of
a person whose holdings
is within limit fixed
under the U.P. Imposition
of Ceiling on Land Holdings
Act 1960.
i) has an income of Rs.10
lakhs in a year from sources
other than agriculture.
ii) His spouse at least a
graduate.
6. Sons and Daughters of
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any others person not
mentioned in afore ment-
ioned categories.
i) Whose income from all
sources for 3 consecutive
financial years is not less
than Rs.10 lakhs per annum.
ii) Spouse at least a
graduate.
iii) Immovable family property
worth at least Rs.20 lakhs."
This Court has categorically held in ‘Mandal case’ that
a person, belonging to a backward class, who becomes member
of IAS, IPS or any other All India Service, his children
cannot avail the benefit of reservation. The States of
Bihar and Uttar Pradesh have added further conditions such
as salary of rupees ten thousand or more per mensum, the
wife or husband to be graduate and one of them owning a
house in an urban area. a So far as the professionals are
concerned, an income of Rs.10 lakhs per annum has been fixed
as the criterion. It is further provided that the wife or
husband is at least graduate and the family owns immovable
property of the value of at least rupees twenty lakhs.
Similarly, the criteria regarding traders, industrialists,
agriculturists and others is wholly arbitrary apart from
being contrary to the guidelines laid down by this Court in
‘Mandal case’.
Multiple conditions have been provided in all the
categories. The ‘spouse’ to be a graduate and holding
property in urban area, are the conditions attached to
almost every category. These conditions have no nexus with
the object sought to be achieved. Since the conditions are
not severable the two criterias as a whole have to be
struck-down.
This Court, in ‘Mandal case’ has clearly and
authoritatively laid down that the affluent part of a
backward class called ‘creamy layer’ has to be excluded from
the said class and the benefit of Article 16(4) can only be
given to the "class" which remains after the exclusion of
the ‘creamy layer’. The backward class under Article 16(4)
means the class which has no element of ‘creamy layer’ in
it. It is mandatory under Article 16(4) - as interpreted by
this Court - that the State must identify the ‘creamy layer’
in a backward class and thereafter by excluding the ‘creamy-
layer’ extent the benefit of reservation to the ‘class’
which remains after such exclusion. This Court has laid
down, clear and easy to follow, guidelines for the
identification of ‘creamy layer’. The States of Bihar and
Uttar Pradesh have acted wholly arbitrary and in utter
violation of the law laid down by this Court in ‘Mandal
case’. It is difficult to accept that in India where the
per capita national income is Rs.6929 (1993-94), a person
who is a member of the IAS and a professional who is earning
less than Rs.10 lakhs per annum is socially and
educationally backward. We are of the view that the
criteria laid down by the States of Bihar and Uttar Pradesh
for identifying the ‘creamy layer’ on the face of it is
arbitrary and has to be rejected.
We, therefore, hold that the above quoted criteria, for
identification of ‘creamy-layer’, laid down by the States of
Bihar and Uttar Pradesh is violative of Article 16(4),
wholly arbitrary - violative of Article 14 - and against the
law laid-down by this Court in ‘Mandal case’.
We allow the writ petitions and quash (except clause 1
of Schedule III) the Bihar reservation of vacancies in posts
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and services (for scheduled castes, scheduled tribes and
other backward classes) (Amendment) Ordinance 1995 (also the
Act if ordinance has been converted into Act). We also
quash Schedule II read with Section 3(b) of the Uttar
Pradesh Public Services Reservation of Scheduled Caste and
Scheduled tribes and Other Backward Classes Act, 1994.
We further direct that for the academic year 1995-96
the States of Uttar Pradesh and Bihar shall follow the
criteria laid down by the Government of India, reproduced
above, in the memorandum dated September 8. 1993. It will
be open to the two States to lay down fresh criteria for the
subsequent years in accordance with law. No costs.
Mr. Venugopal, learned counsel appearing for the
petitioners, stated that there are various other law-points
in these writ petitions which were not raised and he sought
liberty to raise the same in appropriate proceedings, if
necessary. We order accordingly.