Indian Kanoon - Search engine for Indian Law

44. Here we would like to flag an issue which is indirectly related to the lis before us, but on which we can only pass an obiter dicta, and cannot lay down a ratio decidendi, since it was not raised as an issue and argued before us. Soon after the Nine-Judge's Bench decision of the Hon'ble Apex Court in "Mandal case" Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : 1992 AIR SCW 3682 authoritatively interpreting various aspects of Article 16(4) of the Constitution of India, and laying down the law that that socially advanced members of a backward class - 'creamy layer' - have to be excluded from the said 'class', and the purpose and object of Article 16(4) would be served more appropriately by providing such reservations to the 'class', which remains after excluding the 'creamy layer', the Govt. of India had issued an Office Memorandum dated 08.09.1993 in this regard. This O.M. prescribed for 27% reservation for the Other Backward Classes, and the Schedule to the said Memorandum prescribes the categories of persons/sections as mentioned in Column 3 of the said Schedule, which were to be held to constitute "creamy layer", and hence excluded from the 27% reservation for the OBC category under Article 16 (4). The State Governments of Bihar and Uttar Pradesh travelled beyond the stipulations of that DoP&T Memorandum dated 08.09.1993, and laid down further specific prescriptions and tests in this regard. The whole thing came to be examined by the Hon'ble Apex Court in the case of Ashoka Kumar Thakur vs. State of Bihar and Others [AIR 1996 SC 75= (1995) 5 SCC 403=JT 1995 (6) SC 390=(1995) 5 Scale 115=1995 (Supp3) SCR 269]. In that judgment, the Hon'ble Apex Court reproduced the majority view in the 'Mandal case', and dealt with the question of 'creamy layer', drawing a line as to when and where a person belonging to a backward class ceases to be entitled to the reservation, and becomes a part of the exclusion, and 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'. It would be worth-while to reproduce certain paragraphs from the judgment of the Hon'ble Apex Court in Ashok Kumar Thakur (supra) as follows:-

"1. 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.

2. A Nine-Judge Bench of this Court in " Mandal case"

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : (1992 AIR SCW 3682) 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 a 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).

11 to 15. xxxxxxxx (Not reproduced here)

16. 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' extend 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 off the law laid down by this Court in 'Mandal case' (1992 AIR SCW 3682). 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.

19. 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".

(Emphasis supplied).

45 to 52 xxxxxxxxxx (Not reproduced here).

53. The Hon'ble Delhi High Court has in the case of Anil Kumar (supra) decided the case on the assumption that the status of a candidate as belonging to an OBC category who is not from the 'creamy layer' as exists at the time of his birth can perhaps continue un-changed and un-modified up to the date of his or her seeking employment, and, therefore, there is no need for a fresh 'non-creamy layer' certificate to be issued. But as has been held by the Hon'ble Apex Court in Ashoka Kumar Thakur (supra), even OBC families do move ahead both economically and socially, and some times, though not always, such social advancement may be achieved due to economic advancement, as was held by the Hon'ble Apex Court in Para-10 of the Ashoka Kumar Thakur's case (supra), in conformity with the view taken in 'Mandal case' judgment by Hon'ble Mr. Justice B.P. Jeevan Reddy (supra).