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35. In the very context of reservation for backward classes and grant of OBC certificates, the Honble Apex Court had in Sidharth Saini vs. State of Haryana 2001 (10) SCC 625 held that since the only source of income of the father of the appellant was his salary, and it was not disputed that the father of the appellant was a class-II officer, and mother of the appellant was not class-II officer, any income more than the gross salary received by the father of the appellant was irrelevant for the purpose of grant of benefits available to the OBCs to the appellant, and that he was entitled to the grant of an OBC certificate. In that case, the authorities had not denied the factum pertaining to the birth of the appellant in a caste coming under the OBC category, but had only denied his eligibility for grant of OBC non-creamy layer certificate, on account of the gross income received by the whole family, by both the father and the mother of the appellant, according to which they had concluded that he came under the creamy layer, and they had declined to issue to him OBC non-creamy layer certificate, which ultimately he may have got issued after the Apex Courts judgment in his favour. But the distinctive separateness of such a creamy layer OBC or non-creamy layer OBC certificate from that of a birth certificate of his birth in an OBC caste was never in question before the Honble Apex Court.

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-Judges Bench decision of the Honble 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 Honble 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 Honble 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 Honble Apex Court in Ashoka Kumar Thakur (supra) as follows:-

6. 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:-

"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 the class may have achieved the social status or economic affluence, disentitle them from claiming reservation, therefore, while reserving posts for backward class the department should make a condition precedent that very 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 made that wards of those backward classes of persons who have achieved 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 monopolization of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated."

"OFFICE MEMORANDUM Subject : Reservation for Other Backward Classes in Civil Posts and Services under the Government of India - Regarding.

___________________ 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 Indra Sawhney v. Union of India, (1992 AIR SCW 3682) 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 post and service under the Government of India.