Union Of India & Anr. vs Patil Aditya Rajkumar

$~111
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010497472026

+ W.P.(C) 15263/2026, CM APPLs. 71683/2026 & 71684/2026

UNION OF INDIA & ANR. .....Petitioners

Through: Mr. Shashank Dixit, CGSC

versus

PATIL ADITYA RAJKUMAR .....Respondent

Through: Mr. Shreyek Gupta, Adv.

CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MS. JUSTICE NIVEDITA ANIL SHARMA

ORDER (ORAL)
% 13.10.2026

C. HARI SHANKAR, J.

1. The respondent appeared in the Civil Services Examination
1
2022 as a candidate belonging to the “Other Backward Classes Non -
2
Creamy Layer ”. By order dated 19 April 2024, issued by the
3
Department of Personnel and Training , the respondent was declared
ineligible for OBC-NCL benefit, on the ground that his father was
4
occupying a Group-A post of Junior Telecom Officer in the Bharat

1
“CSE 2022” hereinafter
2
“OBC-NCL” hereinafter
3
“DOPT” hereinafter
4
“JTO” hereinafter
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5
Sanchar Nigam Limited and was earning gross income from salary
per annum in excess of ₹ 8 lakhs for the financial years 2018-2019,
2019-2020 and 2020-2021.

2. Aggrieved thereby, the respondent approached the Central
6
Administrative Tribunal by way of OA 1990/2024.

3. By judgment dated 5 December 2025, the Tribunal has allowed
the OA and has held the respondent to be eligible to OBC-NCL
benefit.


4. Aggrieved thereby, the DOPT is before us in the present writ
proceedings.

5. We have heard Mr. Shashank Dixit, learned CGSC appearing
for the DOPT and Mr. Shreyek Gupta, learned Counsel for the
respondent.

6. The issue in controversy is covered by two judgments of this
7
Court in Union of India v. Sarthak Singh and Union of India v.
8
Divyanshu Patel .

7. We need not, therefore, burden this judgment with any detailed
allusion to the factual position.


5
“BSNL” hereinafter
6
“the Tribunal” hereinafter
7
2024 SCC OnLine Del 7426
8
2018 SCC OnLine Del 13288
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8. The controversy essentially revolves around the interpretation
9
and understanding of Office Memoranda dated 8 September 1993 and
14 October 2004 issued by the DOPT and 25 October 2017 issued by
10
the Department of Public Enterprises , from which we may reproduce
the relevant Clauses thus:

DOPT OM dated 8 September 1993

“SCHEDULE

II. SERVICE CATEGORY


A. Group A/Class I
officers of the All India
Central and State
Services (Direct
Recruits).
Son(s) and daughter(s) of

(a) parents, both of
whom are Class I officers;

(b) Parents, either of
whom is a Class-l
officers;

(c) Parents, both of
whom are a Class-1
officers, but one of them
dies or suffers permanent
incapacitation.

(d) Parents, cither of
whom is a Class-1
officers and such parent
dies or suffers permanent
incapacitation and before
such death or such
incapacitation 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.

(e) Parent, both of

9
“OM” hereinafter
10
“DOPE” hereinafter
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whom are class I officers
die or suffer permanent
incapacitation and before
such death or such
incapacitation of the both,
either 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.

Provided that the rule of
exclusion shall not apply
in the following cases:

(a) Sons and
daughters of parents either
of whom or both 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-1
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 11
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
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one 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 before such death or
permanent incapacitation:

(d) parents of whom
the husband is a Class 1
officer (Direct Recruit or
pre-forty promoted) and
the wife is a Class 11
officer and the wife dies;
or suffers permanent
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
exclusion shall not apply
in the following cases:

Sons and daughters of

(a) Parents both of
whom are Class II officers
and one of them dies or
suffers permanent
incapacitation. even

(b) Parents, both of
whom are Class II officers
and both of them die or
suffer permanent
incapacitation, through
either of them has had the
benefit of employment in
any Inter-national
Organisation like UN,
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IMF, World Bank, etc. for
a period of not less than 5
years before their death or
permanent incapacitation:

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
employment, 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.”

DOPT OM dated 14 October 2004

“No. 36033/5/2004-Estt.(Res)
GOVERNMENT OF INDIA
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSIONS
DEPARTMENT OF PERSONNEL & TRAINING
*
th
New Delhi, the 14 October, 2004
To

The Chief Secretaries of all the States/Union Territories.

Subject: Clarification regarding creamy layer amongst
OBCs.

Sir,

I am directed to invite your attention to the Schedule to this
Department's OM No.36012/22/93-(SCT) dated 8th September,
1993 which contains the criteria to determine the creamy layer
amongst the OBCs. In regard to the children of the persons in civil
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services of the Central and the State Governments, it provides that
son(s) and daughter(s) of:

(a) parents, both of whom are directly recruited Class
I/Group A officers;

(b) parents, either of whom is a directly recruited Class
I/Group A officer:

(c) parents, both of whom are directly recruited Class
I/Group A officers, but one of them dies or suffers
permanent incapacitation;

(d) parents, either of whom is a directly recruited Class
I/Group A officer and such parent dies or suffers permanent
incapacitation and before such death or such incapacitation
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;

(e) parents, both of whom are directly recruited Class
I/Group A officers and both of them die or suffer
permanent incapacitation and before such death or such
incapacitation 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;

(f) parents both of whom are directly recruited Class
II/Group B officers;

(g) parents of whom only the husband is a directly
recruited Class II/Group B officer and he gets into Class
I/Group A at the age of 40 or earlier;

(h) parents, both of whom are directly recruited Class
II/ Group B officers and one of them dies or suffers
permanent incapacitation and 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:

(i) parents of whom the husband is a Class I/ Group A
officer (direct recruit or pre-forty promoted) and the wife is
a directly recruited Class II/Group B officer and the wife
dies; or suffers permanent incapacitation; and

(j) parents, of whom wife is a Class I/Group A officer
(Direct Recruit or pre-forty promoted) and the husband is a
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directly recruited Class II/Group B officer and the husband
dies or suffers permanent incapacitation shall be treated as
falling in creamy layer.

*

3. The criteria prescribed for determining creamy layer status
of sons and daughters of persons in Government service mutatis
mutandis applies to the sons and daughters of persons holding
equivalent or comparable posts in PSUs, Banks, Insurance
Organisations, Universities etc. and also holding equivalent or
comparable posts and positions under private employment. The
creamy layer status of the sons and daughters of employees of
organizations where evaluation of the posts on equivalent or
comparable basis has not been made is determined on the basis of
'Income/Wealth Test' given in the Schedule. The Income/ Wealth
Test prescribes that the sons and daughters of persons having gross
annual income of Rs 2.5 lakh or above or possessing wealth above
the exemption limit as prescribed in the Wealth-Tax Act for a
period of three consecutive years would be treated to all in creamy
layer. An explanation is given below the Income/Wealth Test
which provides that income from salaries or agricultural land shall
not be clubbed.

4. Following questions have been raised from time to time
about the application of the above provisions to determine creamy
layer:

*

(v) Will the sons and daughters of parents of whom
husband is directly recruited Class III/Group C or Class
IV/Group D employee and he gets into Class I/Group A at
the age of 40 or earlier be treated to be falling in creamy
layer?

*

7. In regard to clause (v) of para 4, it is clarified that the sons
and daughters of parents of whom only the husband is a directly
recruited Class II/Group B officer who gets into Class I/Group A at
the age of 40 or earlier are treated to be in creamy layer. If the
father is directly recruited Class III/Group C or Class IV/Group D
employee and he gets into Class 1/Group A at the age of 40 or
earlier, his sons and daughters shall not be treated to be falling in
creamy layer.”

DOPE OM dated 25 October 2017
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“2. As the pay pattern, perks and allowances of posts in Central
Public Sector Enterprises (CPSEs) are completely different from
the posts in Government, determination of exact equivalence of
CPSEs posts with Group A, B, C & D level posts in Government is
not feasible. However, in view of the Government decision referred
to in DOPT OM dated 06-10-2017, for determination of creamy
layer criteria in CPSES, the general principle would be that all the
Executive level posts in CPSES i.e. Board level Executives and
below Board level Executives which are managerial level posts,
will be considered as "creamy layer" subject to the proviso that
those Executives whose annual income as per criteria given in
DOPT OM 08-09-1993 is less than Rs. 8 Jakhs (as amended vide
DoPT OM No. 36033/1/2013-Estt. (Res) dated 13-09-2017), will
not fall under creamy layer criteria.”

9. Mr. Dixit submits that the per annum income of the
respondent’s father from salary alone, during the years 2018-2019 and
2020-2021 was ₹ 10,05,410/-, ₹ 13,16,420/- and ₹ 10,96,610, in each
case in excess of the ceiling of ₹ 8 lakhs. He, therefore, submits that
the respondent could not be entitled to be treated as a candidate
belonging to the OBC-NCL category.

10. Mr. Gupta, learned Counsel for the respondent, per contra ,
submits that the respondent is entitled to the benefit of the
clarification, by DOPT OM dated 14 October 2004, of the earlier
DOPT OM dated 8 September 1993. The DOPT OM dated 14 October
2004, particularly in para 7, clarified that, in respect of executives in
public sector undertakings, if they had been directly recruited to the
Group-B post below the age of 40 and entered Group-A after the age
of 40, they would not be treated as belonging to the creamy layer.
This issue, he submits, stands concluded by the judgments of this
Court in Divyanshu Patel and Sarthak Singh .

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11. Having heard learned Counsel for the parties, we are of the
opinion that the controversy is no longer res integra . This Court has
clearly held, in Divyanshu Patel and Sarthak Singh , that the DOPT
OM dated 14 October 2004 constitutes an independent dispensation
with respect to grant of OBC-NCL status, and has to be read along
with the DPE OM dated 25 October 2017. Thus, if an executive in a
public sector undertaking is directly recruited to a Group-B post
before the age of 40 and enters a Group-A post after the age of 40, he
would not be treated as belonging to the creamy layer and would be
entitled to OBC-NCL benefit.


12. In Divyanshu Patel , it was sought to be contended that the
benefit of the DOPT OM dated 14 October 2004 would not be
available if entry into Group-B after the age of 40 was by way of
direct recruitment, but would only apply where it was by promotion.
The Division Bench of this Court negatived the contention, observing
that no such stipulation, to the effect that the employee had to enter
Group-B after the age of 40 by direct recruitment, was to be found in
the DOPT OM dated 14 October 2004, and the stipulation regarding
direct recruitment only applied to his initial entry into the
organisation.

13. The relevant paragraphs from Sarthak Singh may be
reproduced as under:

“10. The principles regarding identification of creamy layer
candidates among OBCs are generally contained in the Notification
dated 8 September 1993 followed by a clarification dated 14
October 2004 issued by the Department of Personnel and Training.
The Division Bench of this Court has examined these two
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instructions in considerable detail in its decision in Divyanshu
Patel , paras 7 to 11, 19 to 24 and 27 to 29 of which may be
reproduced thus:

“7. Relevant extract of the notification dated
08.09.1993 reads as follows:

“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 filed 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…….

“(c)(i) The aforesaid reservation
shall not apply to persons/sections
mentioned in column 3 of the
Schedule to this office memorandum.
(See : The Schedule, in so far as it is
relevant reads as follows)”

*

“II. SERVICE CATEGORY

A. Group A/Class 1 officers of the All India Central and State
Services (Direct Recruits)
Son(s) and daughter(s) of

(a) parents, both of whom are Class I officer;

(b) parents, either of whom is a Class I officer;…..”

B. Group B/Class II officers of the Central And State Services
(Direct Recruits)
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.”
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8. Relevant extract from the Clarification dated 14.10.2004
reads as follows:

“Following questions have been raised from time to time
about the application of the above provisions to determine
creamy layer:”

“(v) Will the sons and daughters of parents of whom
husband is directly recruited Class III/Group C or Class
IV/Group D employee and he gets into Class I/Group A at
the age of 40 or earlier be treated to be falling in creamy
layer?
……………….
“In regard to clause (v) of para 4, it is clarified that
the sons and daughters of parents of whom only the
husband is a directly recruited Class II/Group B officer who
gets into Class I/Group at the age of 40 or earlier are treated
to be in creamy layer. If the father is directly recruited
Class III/Group C or Class IV/Group D employee and he
gets into Class I/Group A at the age of 40 or earlier, his
sons and daughters shall not be treated to be falling in
creamy layer”

9. The relevant facts for examination of the said aspect may
now be noticed. The respondent's father was appointed as a Post
Office Clerk in Central Government at the age of 23 years and,
subsequently, he was directly recruited as a Lecturer, which is a
Group “A” post in Maharani Lal Kunwari Post Graduate College,
Balrampur under State Government of Uttar Pradesh at the age of
43 years.

10. The petitioner claimed that the case of the respondent fell
under Entry II of the Schedule to the O.M. dated 08.09.1993, and
in particular under Clause (A) thereof as extracted above.

11. On the other hand, the respondent claimed that he was not
covered by the “Creamy Layer”, since his father was a Group ‘C’
Government servant, and only at the age of 43 years, he got into
Group ‘A’/Class I service. The respondent sought to place reliance
on the Entry II (B), which relates to Group ‘B’/Class II Officers of
the Central and State Services (Direct Recruitment) and in
particular Entry (b) thereof as extracted above.

*

19. The only question which arises for determination is if the
respondent falls under the “Creamy Layer” of OBC. Thus, the
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issue that arises is whether the case of the respondent is covered by
sub-category “A” of the “II Service Category”, or sub-category
“B” of the “II Service Category”. The argument of Mr. Mishra is
very simplistic. The submission is that one has to only see whether,
on the relevant date, a parent of the candidate is a Direct Recruit
Class I Officer. If the parent is a Direct Recruit Class I Officer, the
son or daughter would fall within the “Creamy Layer” by reference
to clause (b) of sub-category “A”.

20. In conjunction with this submission, Mr. Mishra has
submitted that clause (b) of sub-category “B” of the “II Service
Category” of the Schedule, relates to those cases where the Class II
Officer gets into Class I Service at the age of 40 years, or earlier,
through promotion or by any other mode, except by Direct
Recruitment. Thus, the submission is that once the parent of the
concerned candidate gets into Class I/Group A Service of All India
Central or State Services by Direct Recruitment, it does not matter
whether he has got into the said service under the age of 40 years
or above the age of 40 years and, in either case, his sons and
daughters would not be entitled to reservation since they would be
covered by “Creamy Layer”.

21. Mr. Mishra has laid much emphasis on the use of the words
“(Direct Recruits)” in sub-category “A” of the “II Service
Category” of the Schedule. According to him, the sub-category
“A” would not be attracted in respect of wards of Group A/Class I
Officers who reached the said position through promotion, or any
other mode, other than Direct Recruitment.

22. On the other hand, the submission of the respondent is that
clause (b) of sub-category “B” under the “II Service Category” of
the Schedule shows that the ward of a Class I Officer, who gets
into Class I Service after the age of 40 years, would not fall within
the “Creamy Layer”. Reliance is placed on the observations made
by the tribunal, which sets out the rational for excluding the wards
of such officers from the “Creamy Layer”.

23. Clause(b) of the sub-category “B” uses the expression
“Parents of whom only the husband is a Class II Officer and he
gets into Class I at the age of 40 or earlier”. The use of the
expression “gets into Class I”, in our view, is very general and
cannot be restricted to cover cases only of promotion, or to exclude
cases of Direct Recruitment. A Class II Officer could get into a
Class I Service either through promotion, or through absorption on
deputation, or through transfer on deputation, or even through
Direct Recruitment. The spirit behind prescription of the age limit
of 40 years, or earlier, in clause (b) of sub-category B of “Category
II Service Category” of the Schedule, is what the tribunal has taken
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note of and we entirely agree with it. The ward of an officer who
gets into Class I Service, from a Class II Service at the age of 40
years or earlier, would enjoy the status, pay and environment (both
social and academic) of a Class I Officer from a relatively young
age, since, by the time an officer is 40 years, the children of such
an officer would still be fairly young and of impressionable age.
The backwardness attached to the caste to which the family of the
officer/his wards belong, would be overcome on account of the
parent of such a child enjoying the status and pay of a Class
I/Group A Officer when the ward was relatively small. However,
the situation would be different if such Class II/Group B Officer
were to get into Group A/Class I Service after the age of 40 years
since, by then, his or her children would, normally, have grown up
a little more beyond the impressionable age, without the parent of
the child enjoying the status and pay attached to a Class I/Group A
post.

24. The well settled rule of interpretation is that if there are two
or more entries which may cover a situation, they have to be
harmoniously construed and the one which is most appropriate-
keeping in view the object, with which the entries are framed,
should be preferred.

*

27. Viewed in the aforesaid light, we find that sub-category
“A” under “II Service Category” is a general sub-category of
Group A/Class I Officers of All India Central and State Services
(Direct Recruits), whereas the category of officers covered by
clause (b) of sub-category “B” of the “II Services Category” is a
more specific category in respect of those Class I Officers, who
were earlier Class II Officers and got into Class I service after the
age of 40 years. Thus, even if the respondent's father was a Class II
Officer before getting into Class I service, he would be covered by
clause (b) of sub-category B of the Services Category of the
Schedule, and not by sub-category A of the Services Category. In
the present case, the Respondent's father was not even a Class II
Officer. He was a Class III Officer and, thus, in any event, even
Clause (b) of Sub-Category ‘B’ is not strictly attracted.

28. The position stands clarified by para 7 of the clarification
dated 14.10.2004 and leaves no room for doubt. It specifically
deals with a situation like the present - where the father of the
candidate is directly recruited Class III or Group ‘C’ employee, and
he gets into Class I/Group A at the age of 40 years or earlier, even
then his sons and daughters are not to be treated as falling in the
“Creamy Layer”.

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11
29. The decision in Tanu Kashyap is also attracted in the facts
of the present case. We reject the submission of the petitioner that
all cases of Direct Recruitment into Class I/Group ‘A’ service are
covered by sub-category ‘A’ of the “II Services Category”. On a
harmonious reading of sub-categories ‘A’ & ‘B’ of the “Services
Category”, what emerges is that if the direct recruitment in Class
I/Group A Services has taken place before the age of 40 years, the
case would fall under sub-category ‘A’, else under sub-category
‘B’”

11. The learned Tribunal has held that the above findings apply
mutatis mutandis to the case at hand in as much as this Court has
held in Divyanshu Patel , applying the generalis specialibus non
12
derogant principle that Category B in the Notification dated 8
September 1993 must be treated as a special category, as opposed
to Category A, which is a General Category. As such, if the
candidate or her parents fall within Category B, Category A would
not apply. In other words, if one of the parents of the candidate
(reading the Notification in a gender neutral fashion) is a Class II
officer, who enters Class I at or before the age of 40, the child of
such candidate would not be entitled to be treated as OBC (NCL)
Category candidate whereas if the parent enters Class I after the
age of 40, the child would be entitled to OBC (NCL) benefits.


14. Applying the principles in Divyanshu Patel and Sarthak Singh ,
it is clear that the respondent is entitled to OBC-NCL benefit. His
father was, at the time of CSE-2017, a Group-A employee. He had
entered Group-A by promotion at the age of 50. Prior thereto, he was
directly recruited to Group-B at the age of 19. He, therefore, squarely
fell within the scope and ambit of the DOPT OM dated 14 October
2004.

15. In that view of the matter, as the case is fully covered by the
judgments of this Court in Divyanshu Patel and Sarthak Singh , we
find no cause to interfere with the decision of the Tribunal.


11
Tanu Kashyap v. DOPT, 2006 SCC OnLine CAT 293
12
Things general do not derogate from things special.
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16. The writ petition is accordingly dismissed in limine .

C. HARI SHANKAR, J.

NIVEDITA ANIL SHARMA, J.
OCTOBER 13, 2026/ dsn/aky
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