Judicial Analysis Court Copy Headnote Facts Arguments Court observation

SUPREME COURT OF INDIA
L. NAGESWARA RAO, ANIRUDDHA BOSE, JJ.
PICHRA WARG KALYAN MAHASABHA HARYANA (REGD.) & ANR. – APPELLANT
VERSUS
THE STATE OF HARYANA & ANR. – RESPONDENT
WRIT PETITION (CIVIL) NO. 60 OF 2019, CIVIL APPEAL NO.4952 to 4954 OF 2021 (ARISING OUT OF SLP (C) NO. 21893, 32168-32169 OF 2018
DECIDED ON : 24-08-2021

Advocates appeared:
For the Petitioner(s):Farrukh Rasheed, Vishwa Pal Singh, Advocates
For the Respondent(s):Arun Bhardwaj, Gauraan, Abhishek Sharma, Nikhil Bhardwaj, Rahul Kumar Shrma, Vishwa Pal Singh, Nandita Jha, Y.P. Singh, Farrukh Rasheed, Advocates

IMPORTANT POINT
Reservation – Exclusion of ‘creamy layer’ – Persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status, are not entitled to be treated as backward. Such persons are to be treated as ‘creamy layer’ without any further inquiry.

Headnote:
Reservation – Exclusion of ‘creamy layer’ within a backward class – Criteria – Validity of notifications dated 17.08.2016 and 28.08.2018 issued by Government of Haryana – Persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status, are not entitled to be treated as backward – Such persons are to be treated as ‘creamy layer’ without any further inquiry – Likewise, people with sufficient income who are in a position to provide employment to others should also be taken to have reached a higher social status and should be treated as outside backward class – Similarly, persons from backward classes who had higher agricultural holdings or are receiving income from properties, beyond a prescribed limit, do not deserve benefit of reservation – Notification dated 17.08.2016 is in flagrant violation of directions issued by this Court in Indra Sawhney-I and is at variance with memorandum dated 08.09.1993 issued by Union of India – Criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by Government of Haryana while issuing notification dated 17.08.2016 – While issuing notification dated 07.06.1995, State Government had followed criteria laid out in memorandum issued by Union of India on 08.09.1993, which was in tune with directions given by Apex Court in Indra Sawhney-I – In spite of Section 5(2) of 2016 Act making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, State of Haryana has sought to determine 'creamy layer’ from backward classes solely on the basis of economic criterion and has committed a grave error in doing so – On this ground alone, notification dated 17.08.2016 requires to be set aside – Notification dated 17.08.2016 quashed, giving liberty to State Government to issue a fresh notification within a period of 3 months after taking into account principles laid down by Apex Court in Indra Sawhney-I and criteria mentioned in Section 5(2) of 2016 Act for determining ‘creamy layer’. [Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 – Section 5(2)] (Paras 12 and 14)
Facts of the case:
Writ Petition (C) No. 60 of 2019 has been filed under Article 32 of the Constitution of India for quashing notifications dated 17.08.2016 and 28.08.2018 issued by First Respondent as arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India. A further direction is sought for a fresh survey and verification of data for identification and specification of ‘creamy layer’ as per the provisions of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 (2016 Act). The Petitioners have also sought for a direction to the Respondents to provide reservation to backward classes in Haryana under 2016 Act by considering the existing defined criteria of ‘creamy layer’ by the National Commission for Backward Classes or the criteria used by the State of Haryana prior to 2016 Act. Principal contention of the Petitioners is that notifications dated 17.8.2016 and 28.08.2018 are contrary to law laid down by this Court in Indra Sawhney-I as economic criterion cannot be the sole criterion for identifying ‘creamy layer’.
Findings of Court:
As we have struck down the notification dated 17.08.2016 in toto, there is no need for adjudicating validity of the notification dated 28.08.2018, which is solely dependent on the notification dated 17.08.2016. Admissions to educational institutions and appointment to state services on the basis of the notifications dated 17.08.2016 and 28.08.2018 shall not be disturbed.
Result : Writ Petition and Appeals arising from Special Leave Petitions disposed of.

JUDGMENT :

L. NAGESWARA RAO, J.

Leave granted in SLP (C) No.21893 of 2018 & SLP (C) Nos.32168-32169 of 2018.

1. Writ Petition (C) No. 60 of 2019 has been filed under Article 32 of the Constitution of India for quashing notifications dated 17.08.2016 and 28.08.2018 issued by the First Respondent as arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India. A further direction is sought for a fresh survey and verification of data for identification and specification of ‘creamy layer’ as per the provisions of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 (hereinafter referred to as, the ‘2016 Act’). The Petitioners have also sought for a direction to the Respondents to provide reservation to backward classes in Haryana under the 2016 Act by considering the existing defined criteria of ‘creamy layer’ by the National Commission for Backward Classes or the criteria used by the State of Haryana prior to the 2016 Act.

2. Reservation in backward classes as recommended by the Mandal Commission was scrutinised by this Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 (hereinafter referred to as, ‘Indra Sawhney-I’). In the said judgment, this Court recommended constitution of a permanent body at the Central level and at the level of the States to deal with the inclusion, under-inclusion and over-inclusion of groups in the lists of other backward classes of citizens. This Court directed State Governments to identify ‘creamy layer’ amongst the backward classes and exclude them from the purview of reservation. Pursuant to the directions issued in Indra Sawhney-I, the Haryana Second Backward Classes Commission was constituted on 12.10.1993. The said Commission was assigned the function of specifying the basis for excluding socially advanced persons / creamy layer from the backward classes. On 16.05.1995, the Haryana Second Backward Classes Commission submitted its report recommending the criteria for excluding socially advanced persons/sections (creamy layer) from the backward classes. The State Government accepted the recommendations of the Commission and decided that the benefit of reservation shall not extend to persons/sections mentioned in Annexure ‘A’ to the circular dated 07.06.1995 issued by the Commissioner and Secretary to Government of Haryana, Welfare and Scheduled Castes and Backward Classes Department. The said Annexure ‘A’ included the children of those who held Constitutional Posts, who were Class I Officers of the All India Central and State Services (Direct Recruits), Class II Officers of the Central and State Services (Direct Recruits), employees in Public Sector Undertakings etc., and personnel belonging to Armed Forces including Para Military Forces (excluding persons holding civil posts). Children of persons belonging to a family which owned more than the permissible land under the statute of Haryana pertaining to ceiling on land holdings were also covered under Annexure ‘A’. Another category specified in Annexure ‘A’ was with respect to the children of persons with gross annual income of Rs. 1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act, 1957 for a period of three consecutive years. Lastly, Annexure ‘A’ brought within its fold children of persons of all other listed categories who were not disentitled to the benefit of reservation but had income from other sources of wealth bringing them within the aforementioned income / wealth criteria.

3. On 31.08.2010, the Financial Commissioner and Principal Secretary to Government of Haryana, Welfare of Scheduled Castes & Backward Classes Department informed the relevant authorities that the State Government had decided to raise income limit to Rs. 4.5 lakh for determining ‘creamy layer’ amongst the backward classes under the income / wealth criteria. Later, the Haryana Backward Classes (Reservation in Services and Admission in Educational

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Cases Referred (3)