Government Resolution Exempting Personal Income for Women’s Reservation NCL Certificates Applies Retrospectively to Avert Hardship

In brief

The question

1. Whether the income of the applicant herself (as opposed to parental income) should be the basis for determining Non-Creamy Layer status for women’s reservation

The court held

The personal income of the candidate is not to be the sole determinant in a manner that defeats the purpose of the reservation.

It also directed

The Court allowed the petition, quashing the order dated October 30, 2015, that cancelled the Petitioner’s NCL certificate. It directed the Respondents to forthwith restore the Petitioner to her original post of Associate Professor from the date of her reversion, with all consequential benefits including seniority and promotions, to be processed within four months

01Facts

The Petitioner, a Lecturer at B.J. Government Medical College, applied for and was issued a Non-Creamy Layer (NCL) Certificate on May 20, 2015, to avail of the 30% reservation for women

p. 2

On October 9, 2015, she was appointed as an Associate Professor at Grant Government Medical College

p. 3

However, following a complaint by Respondent No. 4, Respondent No. 2 cancelled the Petitioner’s NCL certificate on October 30, 2015, without a hearing

p. 3

The cancellation was based on the premise that the applicant’s personal income, rather than just parental income, must be considered for the NCL status

p. 3

Consequently, the Petitioner was reverted to the post of Assistant Professor while Respondent No. 4 was appointed to her original post

p. 5

During the pendency of the petition, the State issued a Government Resolution (GR) dated May 4, 2023, modifying the requirements for NCL certificates

p. 3

02Issues

i.1. Whether the income of the applicant herself (as opposed to parental income) should be the basis for determining Non-Creamy Layer status for women’s reservation

p. 3 / para. 3

ii.2. Whether the Government Resolution dated May 4, 2023, which removed the restrictive income criteria, has retrospective application

p. 4 / para. 6

iii.3. Whether the Petitioner is entitled to restoration of her post and consequential benefits despite the vacation of an earlier interim stay

pp. 5-6 / para. 11

03Law Applied

The Court relied on the legal principles established in Deepanjali D/o Bhujangrao Lomate v. The State of Maharashtra (Writ Petition No. 2014/2016), which held that Government Resolutions intended to mitigate hardship caused by previous restrictive conditions must be interpreted retrospectively

pp. 3-4

The court applied the Government Resolution dated May 4, 2023, issued by the Women and Child Development Department, which superseded the impugned clauses of GRs dated August 1, 1997, and May 25, 2001, regarding the computation of income for NCL certificates

pp. 3-4

04Reasoning

The Court found the Petitioner to be "absolutely similarly situated" to the petitioner in the Deepanjali Lomate case

p. 3

It rejected the State’s argument that the 2023 GR was only prospective, noting that the policy was specifically focused on addressing the hardship caused by the old, "evil" conditions

p. 4

The Court reasoned that denying retrospective application would perpetuate the very harm the new policy sought to rectify

p. 4

Furthermore, the Court dismissed the Respondents' contention that the Petitioner should be treated differently because her interim stay was vacated (unlike in Deepanjali); it held that the ultimate success of the legal challenge necessitates the restoration of the Petitioner's rights, and the lack of a continuous interim order should not cause her prejudice

pp. 5-6