Judgment

KULDIP SINGH, J.

(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 - 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.

(3) THE protective discrimination in the shape of job reservations under Article 16(4 has to be programmed in such a manner that the most deserving section of the backward class is benefited. Means test by which "creamy layer" is excluded, ensures such a result. The process of identifying backward class cannot be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backwardness but while identifying the class they may have come within the collectivity. It is often seen that comparatively rich persons in the backward class are able to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practised on them by the higher class is in turn practised by the affluent members of the backward class on the poorer members of the same class. The benefits of social privileges like job reservations are mostly chewed up by the richer or more affluent S. of the backward class and the poorer and the really backward sections among them keep on getting poorer and more backward. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniform. The jobs are so very few in comparison to the population of the backward classes that it is difficult to give them adequate representation in the State services. It is, therefore, necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job reservations is necessary to benefit the needy S. of the class. The means test is, therefore, imperative to skim off the affluent section of the backward class.

(4) WE may refer to the opinions given by the learned Judges in Mandal case on the question of exclusion of the "creamy layer" from the backward class.

(5) P.B. Sawant, J. spoke about the "creamy layer" in the following words:

"THE correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicon of backwardness, they should be taken out from the backward classes and should be made disentitled to the provisions meant for the said classes. It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others? Is it the capacity to compete for Class IV or Class III or higher class posts? A Class IV employees children may develop capacity to compete for Class III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class IV posts. It cannot, however, be argued that on that account, he has reached the creamy level. If the adequacy of re