Karnataka High Court
The State Of Karnataka vs Smt Yogeshwari on 19 November, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.24115/2018
C/W
WRIT PETITION No.3390/2018(GM-CC)
WP No.24115/2018
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF BACKWARD CLASSES
AND WELFARE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE - 560001
2. THE CHAIRMAN/DEPUTY COMMISSIONER,
DISTRICT CASTE INCOME VERIFICATION COMMITTEE
CHAMARAJANGARA DISTRICT
CHAMARAJANAGARA
3. THE DISTRICT OFFICER
BACKWARD CLASSES WELFARE DEPARTMENT
CHAMARAJANAGARA DISTRICT
CHAMARAJANAGARA - 571313.
... PETITIONERS
(SRI A S PONNANNA, ADDITIONAL ADVOCATE GENERAL
A/W SMT. NILOUFER AKBAR, AGA)
2
AND:
1. SMT. YOGESHWARI,
AGED ABOUT 36 YEARS,
D/O MAHADEV SWAMY K. M.
W/O B. DILEEP KUMAR
R/O KAGALWADI VILLAGE
CHANDAKAWADI HOBLI,
CHAMARAJANAGARA DISTRICT - 571117.
2. THE COMMISSIONER AND APPELLATE
AUTHORITY, BACKWARD CLASSES WELFARE
DEPARTMENT, BENGALURU-560001.
... RESPONDENTS
(BY SRI ANIRUDH ANAND, ADVOCATE FOR R1;
R2 IS DELETED VIDE COURT ORDER DATED 19.11.2018)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER AT ANNEXURE-A DATED
18.11.2016 PASSED BY THE COMMISSIONER AND
APPELLATE AUTHORITY, BACKWARD CLASSES WELFARE
DEPARTMENT, BENGALURU AS PER ANNEXURE-A.
WP No.3390/2018
BETWEEN:
SMT. YOGESHWARI,
AGED ABOUT 36 YEARS
D/O MAHADEVSWAMY K M
3
W/O B. DILEEP KUMAR,
R/O KAGALWADI VILLAGE,
CHANDAKAWADI HOBLI,
CHAMARAJANGAARA DISTRICT - 571117
... PETITIONER
(BY SRI D.L.N. RAO, SENIOR COUNSEL FOR
SRI ANIRUDH ANAND, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF DPAR
VIDHANA SOUDHA,
DR. B. R. AMBEDKAR VEEDHI
BANGALORE - 560001.
2. THE DEPUTY COMMISSIONER & CHAIRMAN
THE DISTRICT CASTE AND INCOME
VERIFICATION COMMITTEE
CHAMRAJANAGARA
CHAMARAJANAGARA DISTRICT - 571313
3. THE DISTRICT CASTE AND
INCOME VERIFICATION COMMITTEE
CHAMRAJANGARA,
CHAMARAJANAGARA DISTRICT - 571313.
REPRESENTED BY ITS MEMBER SECRETARY
4. THE DISTRICT OFFICER
BACKWARD CLASSES AND MINORITIES
WELFARE DEPARTMENT,
AND MEMBER SECRETARY
DISTRICT CASTE AND INCOME
VERIFICATION COMMITTEE
4
CHAMARAJANAGARA,
CHAMARAJANAGARA DISTRICT - 571313
5. THE DEPUTY SECRETARY
ZILLA PANCHAYAT AND MEMBER
DISTRICT CASTE AND INCOME
VERIFICATION COMMITTEE
CHAMARAJANAGARA
CHAMARAJANGARA DISTRICT - 571313
6. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BANGALORE - 560001.
... RESPONDENTS
(BY SRI PONNANNA, ADDITIONAL ADVOCATE GENERAL,
A/W SMT. NILOUFER AKBAR, AGA FOR R1 TO R4;
SRI SRIRANGA S ADVOCATE FOR R5)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 13.12.2017 PASSED BY THE 2ND
RESPONDENT, BENGALURU, VIDE ANNEXURE-W AND ETC.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
5
ORDER
I. CASE OF THE PETITIONER IN W.P. NO.3390/2018:
The petitioner - Smt. Yogeshwari has filed Writ Petition No.3390/2018 for a writ of certiorari to quash the order dated 13.12.2017 passed by the 2nd respondent as per Annexure-W and writ of mandamus or any other appropriate writ or direction to the 2nd respondent to implement the order passed in Appeal No.17/2016-17 dated 18.11.2016 and further issue writ of mandamus directing the Respondent Nos.2 and 3 to issue Validity Certificate in favour of the petitioner.
2. It is the case of the petitioner that the notification dated 30.3.2015 was issued by the 6th respondent inviting online applications for direct recruitment to fill up 211 posts of Civil Judges. In pursuance of the said notification, the 6 petitioner submitted an online application for the post of Civil Judge under Category III(B), as belonging to Veerashaiva community. The petitioner succeeded in the preliminary and main examinations. The Caste Certificate produced by the petitioner as per Annexure-A dated 10.12.2007 and the annual income of the petitioner's family was shown as Rs.10,000/- in the said certificate. She further contended that the 6th respondent published the details via online and invited the petitioner for viva-voce on 7.12.2015 as she was one of the selected candidates in the selection list at Serial No.118. The petitioner sought extension of time to attend the viva-voce as she had delivered a baby on 3.12.2015 by caesarian. The 6th respondent pleased to postpone the petitioner's viva-voce from 7.12.2015 to 19.12.2015 and on 19.12.2015 she attended viva-voce along with the documents and the authorities duly verified the documents produced by the petitioner.
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3. When the petitioner came to know that her application was not forwarded for Police verification and medical test as she has not submitted the Caste Certificate, the petitioner by letter dated 4.2.2016 addressed a communication to the 6th respondent - Registrar General, High Court of Karnataka along with the Caste Certificate under the Category III(B), which was later forwarded for verification of the certificate. It is her further case that the Government of India, Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training) has issued guidelines dated 8.9.1993 prescribing the principles of exclusion of claim as to backward classes. She further contended that once again she applied and obtained fresh Income and Caste Certificate from the Tahsildar, Chamarajanagar as per Annexure-G dated 3.2.2016 that she belongs to Category III(B) and the annual income of the family does not exceed Rs.16,000/-. 8 Thereafter the petitioner submitted an application dated 28.2.2016 for issue of verification certificate.
4. The 2nd respondent - Deputy Commissioner & Chairman, District Caste and Income Verification Committee, Chamarajanagar issued the letter to the 5th respondent based on the request made by the petitioner, directing the Respondent No.5 to inspect the place and verify the details about petitioner as well as family and income status and submit the report. In pursuance of the said direction, the 5th respondent & Extension Officer, Backward Classes Welfare Department, Chamarajanagar taluk conducted joint spot inspection and submitted report to the District Officer, Backward Classes and Minorities Welfare Department and Member Secretary, District Caste and Income Verification Committee, Chamarajanagar on 3.3.2016. The petitioner further contended that the 2nd respondent has constituted a Committee consisting of the 2nd respondent and District Officer, Backward Classes and 9 Minorities Welfare Department and Member Secretary, District Caste and Income Verification Committee, Chamarajanagara and Deputy Secretary, Zilla Panchayat and Member, District Caste and Income Verification Committee, Chamarajanagar and instituted the proceedings for validity of the Caste and Income Certificate of the petitioner. The said Committee without giving an opportunity to the petitioner and also not taking into consideration of the reports made by the Extension Officer, Backward Classes Welfare Department, Chamarajanagara taluk, refused to issue the validity certificate on the ground that the petitioner had submitted a letter dated 4.2.2016 before the Hon'ble Registrar, High Court of Karnataka stating that her husband is a Judicial Officer, but in her request for validity certificate, the same was not disclosed and further that the Caste and Income Certificate produced has already expired more than five years back. 10
5. The petitioner being aggrieved by the proceedings passed by the District Level Committee, filed Appeal No.17/2016-17 before the Appellate Authority under the provisions of Section 4D of the Karnataka Scheduled Castes and Scheduled Tribes and OBC (Reservation of Appointment etc.,) Act, 1990. The Hon'ble District Level Committee/ Appellate Authority after hearing both the parties and relying upon the Judgment of the Hon'ble Supreme Court reported in AIR 1993 SC 477 allowed the appeal on 18.11.2016 as per Annexure-K and set aside the order passed by the 2nd respondent - Deputy Commissioner & Chairman, District Caste and Income Verification Committee, Chamarajanagar.
6. In pursuance of the order passed by the Appellate Authority, the petitioner made representations to the 2nd respondent on 27.2.2017 and 22.3.2017 to issue validity certificate on the basis of the order passed by the Appellate Authority dated 18.11.2016.
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7. The 2nd respondent District Level Committee, Chamarajanagar and members of the Committee in its meeting dated 27.2.1017 raised eight questions and sought clarification from the Commissioner, Department of Backward Classes, Bangalore as per Annexure-P dated 6.3.2017 and also from the Government as per Annexure-S dated 25.3.2017. In view of the order passed by the Hon'ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS (AIR 2015 SC 537 .. para 11), the Appellate Authority as well as the State Government clarified that the creamy layer status of a candidate is determined on the basis of the status of his/her parents and not on the basis of his/her own status or income or on the basis of status or income of his/her spouse. Therefore, while determining the creamy layer status of a person the status or the income of the candidate herself/himself or of his/her spouse shall not be 12 taken into account. The clarification reveals that it is only parents' income should be taken into consideration.
8. Since the 2nd respondent has not considered the repeated representations made by the petitioner to issue the validity certificate, the petitioner was constrained to file W.P. No.17079/2017 before this Court. This Court after hearing both the parties by the order dated 9.11.2017 disposed of writ petition and directed the District Caste and Income Verification Committee to take note of the order dated 18.11.2016 passed by the Appellate Authority and consider the representations as at Annexures-H and J and take decision and convey the decision to the petitioner as expeditiously as possible, but not later than two months from the date on which a copy of the order is furnished. The said order passed by this Court has reached finality. 13
9. Inspite of the clarification issued by the Appellate Authority and also the State Government and the direction issued by this Court in W.P. No.17079/2017, the 2nd respondent proceeded to pass the impugned order as per Annexure-W dated 13.12.2017 mainly on the ground that as on the date of the application filed by the petitioner, she was married and therefore the income of the husband has to be taken into consideration and therefore Category III(B) certificate (Veerashaiva lingayath) cannot be granted. Hence the present writ petition is filed.
II. CASE OF THE PETITIONER - STATE GOVERNMENT IN W.P. NO.24115/2018
10. The State Government filed W.P. No.24115/2018 for a writ of certiorari to quash the order passed by the Commissioner and Appellate Authority, Backward Classes Welfare Department, Bengaluru dated 18.11.2016 made in Case No.MaSha.CR-17:2016-17 and dismiss the appeal filed before the Appellate Authority mainly on the ground that 14 the impugned order passed by the Appellate Authority is not a speaking order and has not at all assigned any reasons while allowing the appeal.
III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES
11. I have heard the learned counsel for the parties to the lis.
12. Sri D.L.N. Rao, learned senior counsel appearing for the petitioner in W.P. No.3390/2018 contended that the impugned order passed by the 2nd respondent is contrary to the material on record and contrary to the Government Order dated 30.3.2002. He would further contend that the order passed by the Appellate Authority as per Annexure-K, wherein the Appellate Authority has set aside the order passed by the respondent - Deputy Commissioner & Chairman, District Caste and Income Verification Committee and allowed the appeal. Thereafter the petitioners made 15 representations to the 2nd respondent and since the 2nd respondent has not considered the representations, the petitioner was forced to file Writ Petition No.17079/2017 and this Court by an order dated 9.11.2017 allowed the writ petition and directed the 2nd respondent to consider the representations and pass orders as expeditiously as possible, but not later than two months from the date of receipt of copy of the order.
13. Learned senior counsel further contended that the appellate authority as well as the State Government have clarified that the income of the parents of the candidate has to be taken into consideration while issuing the validity certificate and not the income of the candidate himself/herself or her/his spouse. Inspite of the same, ignoring the law laid down by the Hon'ble Supreme Court in the case of SURINDER SINGH v. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS reported in AIR 2015 SC 537, the 2nd respondent - Deputy 16 Commissioner & Chairman, Caste & Income Verification Committee proceeded to pass the impugned order. In the circumstances, the District Caste & Income Verification Committee ought to have issued the validity certificate as prayed for by the petitioner. The same has not been issued ignoring the guidelines issued by the State Government and the law declared by the Hon'ble Supreme Court and therefore he sought to allow the writ petition filed by the petitioner.
14. Learned senior counsel would further contend that the Writ Petition No.24115/2018 was filed by the State Government against the order passed by the Appellate Authority dated 18.11.2016 only on 1.6.2018 after the impugned order was passed by the District Verification Committee on 13.12.2017 (Annexure-W in W.P. No.3390/18) and after the State Government as well as the Appellate Authority had given the clarification/advice to the District Caste & Verification Committee with regard to issue 17 of income and caste certificate to the petitioner and therefore the writ petition filed by the State Government is only an after thought. He would further contend that the State Government has not explained the delay of more than 1 ½ years in filing the writ petition. Further, absolutely there is no ground in the writ petition filed by the State Government to set aside the order passed by the Appellate Authority in view of the clarification issued by the very Appellate Authority and the State Government, when the District Verification Committee - 2nd respondent sought the clarification. Therefore, in all fairness the State Government should not have filed the writ petition. Therefore he sought to allow the writ petition No.3390/2018 filed by the petitioner - Yogeshwari by dismissing the writ petition filed by the State Government.
15. Per contra, Sri Ponnanna, learned Additional Advocate General sought to justify the impugned order of the Deputy Commissioner & Chairman, District Caste & 18 Verification Committee and filing of the writ petition by the State Government against the order passed by the Appellate Authority. He would further contend that the order passed by the Appellate Authority is not a speaking order and the appellate authority has not assigned any reasons. It is not the case of the State Government that the income of the husband has to be taken into consideration while considering the issue of validity certificate to the petitioner - Yeshaswini. He sought to dismiss the writ petition filed by the petitioner and allow the writ petition filed by the State Government.
IV. POINTS FOR CONSIDERATION
16. In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for consideration in these writ petitions are: 19
1. Whether the petitioner - Yogeshwari in W.P. No.3390/2018 has made out a case to quash the impugned order dated 13.12.2017 passed by the 2nd respondent - Deputy Commissioner & Chairman, District Caste & Caste Verification Committee and to issue direction to the 2nd respondent to issue validity certificate in her favour subject to the condition that her parents income does not exceed the limit prescribed by the respondents, in the facts and circumstances of the present case ?
2. Whether the State Government has made out a case to interfere with the order dated 18.11.2016 passed by the Appellate Authority, in the facts and circumstances of the present case ?
17. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 20
V. CONSIDERATION
18. The substance of the case of the petitioner is that she applied for the post of Civil Judge in response to the notification issued by the 6th respondent under Category III(B) as she belonged to Veerashiava community and she succeeded in the preliminary and Main examinations conducted by the 6th respondent and thereafter she also attended viva voce. Later, she came to know that her application was not forwarded for police verification and medical test, as she has not submitted the caste certificate. Therefore the petitioner has once again applied and obtained the fresh caste and income certificate that she belongs to Category III(B) and income of the family does not exceed Rs.16,000/- issued by the Tahsildar, Chamarajanagar as per Annexure-G dated 3.2.2016. Thereafter the petitioner has applied for the validity certificate before the jurisdictional authority - 2nd 21 respondent. The 2nd respondent rejected the said application on the ground that husband's income has to be taken into consideration. That is the subject matter of the Appeal before the Appellate Authority - Commissioner for Backward Classes. The Appellate Authority by an order dated 18.11.2016 (Annexure-K) allowed the appeal and set aside the order passed by the 2nd respondent - Deputy Commissioner & Chairman, District Caste & Verification Committee.
19. The order passed by the Appellate authority has reached finality. Thereafter, the petitioner has submitted the detailed representations dated 27.2.2017 and 22.3.2017 to the 2nd respondent to issue validity certificate based on the order dated 18.11.2016 passed by the Appellate Authority. Inspite of the representations, when the 2nd respondent has not proceeded to consider the representations in pursuance of the order passed by the Appellate Authority, the petitioner was forced to file writ 22 petition before this Court in W.P. No.17079/2017. This Court after hearing the parties, by the order dated 9.11.2017 allowed the said writ petition and directed the respondent - District Caste & Income Verification Committee to consider the representations and take a decision as expeditiously as possible, but not later than two months from the date of receipt of the order. The said order passed by this Court has reached finality.
20. It is an undisputed fact that the 2nd respondent - Deputy Commissioner & Chairman, District Caste & Income Verification Committee, Chamarajanagar and members of the Committee in its meeting dated 27.2.2017 raised eight questions and sought clarification from the Appellate Authority - Commissioner, Department of Backward Classes, Bangalore as per Annexure-P dated 6.3.2017 and from the Government as per Annexure-S dated 25.3.2017. It is also not in dispute that the Appellate Authority by a letter dated 17.3.2017 (Annexure-G) intimated the 2nd 23 respondent - Deputy Commissioner & Chairman, District Caste & Caste Verification Committee to issue validity certificate to the petitioner - Yogeshwari in accordance with law since the appeal filed before the Appellate Authority was allowed and the order passed by the 2nd respondent was set aside. The order passed by the Appellate Authority
- Commissioner, Department of Backward Classes has reached finality. The Commissioner also clarified the same to the Secretary, Backward Classes on 30.5.2017 as per Annexure-R. At clarification No.3, he has specifically stated that the Hon'ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS (AIR 2015 SC 537) has clarified that the creamy layer status of a candidate is determined on the basis of the status of his/her parents and not on the basis of his/her own status or income or on the basis of status or income of his/her spouse. Therefore while determining the creamy layer status of a person, the status or the income of 24 the candidate himself or his/her spouse shall not be taken into account. The clarification reveals that it is only the parents income, which has to be taken into consideration. The said clarification issued by the Commissioner, Department of Backward Classes to the Secretary also has reached finality.
21. It is also relevant to state at this stage that in response to the clarification sought by the 2nd respondent - Deputy Commissioner dated 25.3.2017, the Prl. Secretary, Law Department by a letter dated 6.9.2017 has answered all the queries. The relevant portion of the clarification issued by the Prl. Secretary to Query No.3 is as under:
eÁw ªÀÄvÀÄÛ DzÁAiÀÄ ¥Àª æ ÀiÁt¥ÀvÀæªÀ£ÀÄß ¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: ¸ÀPÀE 225 ©¹J2000, ¢£ÁAPÀ:
30.03.2002gÀ DzÉñÀzÀ PÀArPÉ (3)gÀ°è 'PɣɥÀzg À À ¤ÃwAiÀÄÄ ¥Àj²µÀÖ eÁw, ¥Àj²µÀÖ ¥ÀAUÀqU À ½ À UÉ ªÀÄvÀÄÛ »AzÀĽzÀ ªÀUÀðUÀ¼À ¥Àª æ U À ð À -1PÉÌ C£Àé¬Ä¸ÀĪÀÅ¢®.è 25 C¨sÀåyðAiÀÄ ¥ÀwAiÀÄÄ ¥Àª æ U À ð À -1PÉÌ ¸ÉÃjgÀĪÀÅzÀÄ zÁR¯ÁwUÀ½AzÀ PÀAqÀÄ §gÀÄvÀÛz.É ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÒ £ÁåAiÀiÁ®AiÀĪÀÅ ¸ÀÄgÉÃAzÀæ ¹AUï «gÀÄzÀÝ ¥ÀAeÁ¨ï ¸ÉÖÃmï J¯ÉQÖçPï ¹n ¨ÉÆÃqïð ¥ÀPæ g À t À zÀ°è ¹«¯ï C¦Ã®Ä ¸ÀASÉå: 6957/2009 ¢£ÁAPÀ: 25.09.2014 gÀ°è DzÉñÀ ¨sÁUÀ PÀArPÉ: (11) gÀ°è "In regard clauses (vi), (vii) & (viii) of para 4, it is clarified that the creamy layer status of a candidate is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore, while determining the creamy layer status of person the status or the income of the candidate himself or of his/her souse shall not be taken into account."
The above clarification reveals, that it is only the parents income, which has to be taken into consideration.
26
22. It is also clarified that while determining the creamy layer status of a person, the status or income of the candidate himself or his/her spouse shall not be taken into account and the clarification reveals that it is only the parents income which has to be taken into consideration. Inspite of the clarification issued by the Appellate Authority as well as the Prl. Secretary, Law Department, unfortunately the 2nd respondent - Deputy Commissioner & District Caste & Income Verification Committee proceeded to pass the impugned order dated 13.12.2017 mainly on the ground that the income of the husband of the petitioner has to be taken into consideration and the certificate sought cannot be granted. The same is against the very Government Order issued by the State Government dated 30.3.2002 made in G.O. No. ¸ÀPE À 225 ©¹J 2000 and contrary to the dictum of the Hon'ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS reported in AIR 2015 SC 27 537, wherein at paragraphs - 9, 10 and 11 it is held as under:
9. Based on the aforesaid declaration of law, we are of the view that it was not open to the High Court to evaluate the office memorandum dated 8.9.1993 from any other parameters. It also needs to be noticed, that the issue which came up for determination in Ashok Kumar Thakur's case (AIR 1996 SC 75) came to be re-examined before a Constitution Bench of this Court in Ashok Kumar Thakur vs. Union of India (2008) 6 SCC 1, wherein on the subject of identification of the "creamy layer", the Constitution Bench observed as under:
"1-B. IDENTIFICATION OF CREAMY LAYER
415. Income as the criterion for creamy layer exclusion is insufficient and runs afoul of Sawhney (I). (See p.724 at para 792). Identification of the creamy layer has been and should be left to the Government, subject to judicial direction. For a valid method of creamy 28 layer exclusion, the Government may use its post-Sawhney (I) criteria as a template. (See OM of 8.9.1993, Para 2(c)/Column 3), approved by this Court in Ashoka Kumar Thakur vs. State of Bihar (1995) 5 SCC 403, para 10. This schedule is a comprehensive attempt to exclude the creamy layer in which income, government posts, occupation and landholdings are taken into account."
Here again, this Court expressly approved the office memorandum dated 8.9.1993. In view of the decisions rendered by this Court in both Ashok Kumar Thakur's cases (supra), we are of the view that the High Court clearly erred in reading down the office memorandum dated 8.9.1993 and to include therein the income of the individual concern while determining whether or not he fall within the "creamy layer".
10. Despite the declaration of law in the judgments, referred to hereinabove, it is also necessary to take into consideration the clarification issued by the Government of India, 29 Ministry of Personnel, P.G. and Pensions (Department of Personnel and Training) dated 21.11.2002. The aforesaid clarification was with reference to the office memorandum dated 8.9.1993. Relevant extract of the clarificatory letter dated 21.11.2002 is being reproduced below:
"I am directed to refer to your letter No.2/25/2001 RC-1/670 dated 17-10- 2002 on the above noted subject and say that determination of creamy layer for an OBC candidate is done with reference to the income of parents as per instructions contained in DOPT's O.M. No.36012/22/93-Estt(res) dated 8.9.93."
Based on the aforesaid conclusion, there is really no room for any doubt, that the exposition with reference to category VI in the office memorandum dated 8.9.1993 related only to the income of the parents of the individual concerned. And that, the income of the individual 30 concerned was not to be taken into consideration.
11. The above issue came to be examined yet again by the Government of India, Ministry of Personnel, Public Grievances & Pensions (Department of Personnel and Training) through its memorandum dated 14.10.2004. In the above memorandum, a large number of queries were clarified. Queries at serial nos.(vi) and (vii) of paragraph 4 are relevant to the present controversy, and are accordingly reproduced hereunder:
"4. Following questions have been raised from time to time about the application of the above provisions to determine creamy layer.
(vi) Will a candidate who himself is a directly recruited Class I/Group A Officer or a directly recruited Class II/Group B officer who got into Class I/Group A at the age of 40 or earlier be treated to be falling in creamy layer on the basis of his service status?31
(vii) will a candidate who has gross annual income of Rs.2.5 lakh or above or possesses wealth above the Exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years be treated to fall in creamy layer?"
The aforesaid queries came to be answered in paragraph 8 by observing as under:
"8. In regard to clauses (vi), (vii) and (viii) of para 4, it is clarified that the creamy layer status of a candidate is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore, while determining the creamy layer status of a person the status or the income of the candidate himself or of his/her spouse shall not be taken into account."
In view of the above, there is no room for any further consideration, whether or not the 32 individual's income is to be taken into consideration, while computing the total income relevant to determine whether an individual belongs to the "creamy layer". The above clarification reveals, that it is only the parents income, which has to be taken into consideration.
23. Writ Petition No.24115/2018 is filed by the State Government against the order passed by the Appellate Authority dated 18.11.2016 mainly on the ground that the order passed by the Appellate Authority cannot be sustained as it was not a speaking order. Admittedly the 2nd respondent - Deputy Commissioner & Chairman, District Caste and Income Verification Committee passed the order on 13.12.2017 rejecting the grant of Validity certificate, which is the subject matter of W.P. No.3390/2018 filed by the petitioner - Yogeshwari. Admittedly, the Deputy Commissioner & Chairman, District Caste and Income Verification Committee raised certain queries and sought 33 clarification from the Appellate authority and also the State Government and the State Government has clarified the queries and therefore now the State Government ought not to have filed the writ petition. Instead of filing the writ petition against the order passed by the appellate authority, the State Government ought to have directed the Deputy Commissioner & Chairman, Distinct Caste & Income Verification Committee to issue the validity certificate in accordance with law. The same has not been done. The order was passed by the appellate authority on 18.11.2016 and the writ petition No.24115/2018 was filed by the State Government on 1.6.2018 challenging the said order, after the delay of more than 1 ½ years stating that the appellate authority has not passed speaking order and no reasons are assigned.
24. It is not the case of the State Government that the income of the husband has to be taken into consideration while considering the issue of validity 34 certificate to the petitioner - Yogeshwari. If that is so, the State Government ought not to have filed the present writ petition and drove the petitioner - Yogeshwari unnecessarily before this Court. The State Government should act as custodian of the citizens of the State and the State Government is in position of the mother and treat all the children of the State equally and should not discriminate. Unfortunately, the State Government filed the writ petition No.24115/2018 without there being any ground to challenge the order passed by the appellate authority. The order of the appellate authority has been culminated into the impugned order passed by the 2nd respondent - District Caste Verification Committee after obtaining clarification from the very appellate authority and the State Government. In all fairness, the State Government ought not to have filed writ petition No.24115/2018. The writ petition filed by the State Government is devoid of merits and liable to be rejected.
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VI. CONCLUSION
25. For the reasons stated above, the 1st point raised in these writ petitions has to be answered in the affirmative holding that the petitioner - Yogeshwari in W.P. No.3390/2018 has made out case to quash the impugned order dated 13.12.2017 (Annexure-W) passed by the respondent - Deputy Commissioner & Chairman, District Caste and Verification Committee and to issue direction to the said respondent to issue validity certificate in her favour subject to the condition that her parents income does not exceed the limit prescribed in the Government Order dated 30.03.2002.
26. In view of the above, the 2nd point raised in the present writ petitions has to be held in the negative holding that the State Government has not made out any case to interfere with the order dated 18.11.2016 passed by the 36 appellate authority, in the facts and circumstances of the case.
27. For the reasons stated above, the writ petition filed by the petitioner - Yogeshwari in W.P. No.3390/2018 is allowed. The impugned order dated 13.12.2017 passed by the 2nd respondent - Deputy Commissioner & Chairman, District Caste and Income Verification Committee as per Annexure-W is hereby quashed. The 2nd respondent is directed to issue validity certificate in favour of the petitioner - Yogeshwari in pursuance of the Government Order dated 30.3.2002 made in No. G.O. No.SaKae 225 BCA 2000 and in view of the dictum of the Hon'ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTIRICITY BOARD (AIR 2015 SC 537) stated supra, within one month from the date of receipt of copy of this order.
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28. The Writ Petition No.24115/2018 filed by the State Government is dismissed as devoid of merits.
Sd/-
JUDGE Gss/-