# ASHOK KUMAR THAKUR v. STATE OF BIHAR AND OTHERS

- **Citation:** [1995] Supp. 3 S.C.R. 269
- **Court:** Supreme Court of India
- **Decided:** 1995-09-04
- **Bench:** Kuldip Singh, S. Saghir Ahmad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-kumar-thakur-v-state-of-bihar-and-others-13253
- **Pages:** 24

## Headnote

B
Constitution of India-Arts. 14 and 16(4).
Reservation for backward classes of citizens in the services of the
State-Criteria laid down by the States of Bihar and Uttar Pradesh, for C
detennining the 'creamy layer', for the purpose of exclusion from the backward
classes-Constitutional validity of-Whether violative of Arts. 14 & 16(4) of
the Constitution of India.
Backward class-Meaning of-Under Art. 16(4) of the Constitution-A
class which has no element of 'creamy layer' in it.
D
The law laid down in Mandal's case to be followed-Protective discrimination in the shape of job reservation under A1t. 16(4) has to be
programmed--Most deserving section of the backward classes must be
benefited-Benefit of reservation must reach the poorer and the weakest
section of the backward classes.
E
''Means test" to be applied-Imperative to skim off the affluent section
of the backward classes.
Rule of exclusion fanned by the Govemment of India in conf omiity
with the law laid down by the Supreme Court in Mandal's case'-Same F
should be fallowed by the State govemments-Similar criteria for identifying
the 'creamy layer' ought to be followed by the States.
For the purpose of reservation of jobs for the members of the SC/ST
and the backward classes of the society the respective Governments of the
States of Bihar and U.P. laid down the criteria for the exclusion of the G
'Creamy layer' from the said classes. While the State of Uttar Pradesh,
laid down the criteria by way of schedule II of section 3(b) of the U.P.
Public Services Reservation of Scheduled castes & Scheduled Tribes and
other Backward classes Act 1994, the State of Bihar introduced, the said
criteria by way of an ordinance called the Bihar reservation of vacancies H
269
270
SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
A
in posts and services (for scheduled castes, scheduled tribes and other
backward classes) (Amendment) Ordinance 1995. The said criterion, in
addition to the rule of exclusion, laid down by the Government of India
added further conditions for identifying the 'creamy layer' such a salary
of rupees ten thousand or more per mensem, the wife or the husband to
B
be a graduate and one of them owning a house in an urban area, or the
family owning immovable property of the value of at least rupees 20 lakhs
etc.
The said criterion laid down by the respective States of Bihar and
U.P. were challenged, by way of writ petitions before the Supreme Court
C
of India on the grounds that : (a) They were wholly arbitrary and violative
of the fundamental rights guaranteed under Art. 14 & 16(4) of the Constitution. (b) The criterion were contrary to the guidelines laid down by
this Hon'ble Court in 'Mandal case'. (c) The multiple' conditions laid down
by the said criterion had no nexus to the object sought to be achieved,
D
namely the exclusion of the 'creamy layer' from the backward classes. (d)
The State governments should follow the Government of India and lay
down similar criteria for identifying the 'creamy layer'.
Allowing the Writ Petitions, this Court,
E
HELD: 1.1. It has been clearly and authoritatively laid down in
'Mandal case' that the affiuent part of a backward class called the 'creamy
layer', has to be excluded from the said class and the benefit of Art. 16(~)
can only be given to the class that remains after the exclusion of the
'creamy layer'. [291-C]
F
1.2. The benefits of social privileges like job reservation are mostly
chewed up by the richer or more aflluent sections of the backward classes
and the poorer and the really backward sections among them keep getting
poorer and more backWard. It is only the lowest of the backward class, where
the standards of deprivation and extent of backwardness may be uniform.
G The jobs are so few in comparison to the population of the Backward class
that it is difficult to give them adequate representation in the State services.
It is therefore necessary that the benefit of reservation must reach the
poorer and the weakest section of t

## Text

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-
ASHOK KUMAR THAKUR
A
v.
STATE OF BIHAR AND OTHERS
SEPTEMBER 4, 1995
[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.)
B
Constitution of India-Arts. 14 and 16(4).
Reservation for backward classes of citizens in the services of the
State-Criteria laid down by the States of Bihar and Uttar Pradesh, for C
detennining the 'creamy layer', for the purpose of exclusion from the backward
classes-Constitutional validity of-Whether violative of Arts. 14 & 16(4) of
the Constitution of India.
Backward class-Meaning of-Under Art. 16(4) of the Constitution-A
class which has no element of 'creamy layer' in it.
D
The law laid down in Mandal's case to be followed-Protective discrimination in the shape of job reservation under A1t. 16(4) has to be
programmed--Most deserving section of the backward classes must be
benefited-Benefit of reservation must reach the poorer and the weakest
section of the backward classes.
E
''Means test" to be applied-Imperative to skim off the affluent section
of the backward classes.
Rule of exclusion fanned by the Govemment of India in conf omiity
with the law laid down by the Supreme Court in Mandal's case'-Same F
should be fallowed by the State govemments-Similar criteria for identifying
the 'creamy layer' ought to be followed by the States.
For the purpose of reservation of jobs for the members of the SC/ST
and the backward classes of the society the respective Governments of the
States of Bihar and U.P. laid down the criteria for the exclusion of the G
'Creamy layer' from the said classes. While the State of Uttar Pradesh,
laid down the criteria by way of schedule II of section 3(b) of the U.P.
Public Services Reservation of Scheduled castes & Scheduled Tribes and
other Backward classes Act 1994, the State of Bihar introduced, the said
criteria by way of an ordinance called the Bihar reservation of vacancies H
269
270
SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
A
in posts and services (for scheduled castes, scheduled tribes and other
backward classes) (Amendment) Ordinance 1995. The said criterion, in
addition to the rule of exclusion, laid down by the Government of India
added further conditions for identifying the 'creamy layer' such a salary
of rupees ten thousand or more per mensem, the wife or the husband to
B
be a graduate and one of them owning a house in an urban area, or the
family owning immovable property of the value of at least rupees 20 lakhs
etc.
The said criterion laid down by the respective States of Bihar and
U.P. were challenged, by way of writ petitions before the Supreme Court
C
of India on the grounds that : (a) They were wholly arbitrary and violative
of the fundamental rights guaranteed under Art. 14 & 16(4) of the Constitution. (b) The criterion were contrary to the guidelines laid down by
this Hon'ble Court in 'Mandal case'. (c) The multiple' conditions laid down
by the said criterion had no nexus to the object sought to be achieved,
D
namely the exclusion of the 'creamy layer' from the backward classes. (d)
The State governments should follow the Government of India and lay
down similar criteria for identifying the 'creamy layer'.
Allowing the Writ Petitions, this Court,
E
HELD: 1.1. It has been clearly and authoritatively laid down in
'Mandal case' that the affiuent part of a backward class called the 'creamy
layer', has to be excluded from the said class and the benefit of Art. 16(~)
can only be given to the class that remains after the exclusion of the
'creamy layer'. [291-C]
F
1.2. The benefits of social privileges like job reservation are mostly
chewed up by the richer or more aflluent sections of the backward classes
and the poorer and the really backward sections among them keep getting
poorer and more backWard. It is only the lowest of the backward class, where
the standards of deprivation and extent of backwardness may be uniform.
G The jobs are so few in comparison to the population of the Backward class
that it is difficult to give them adequate representation in the State services.
It is therefore necessary that the benefit of reservation must reach the
poorer and the weakest section of the backward classes. [272-H; 273-A]
1.3. The economic ceiling to cut off the backward class for the
H
purpose of job reservation is necessary to benefit the needy sections of the
-
.
•.
AK. THAKUR v. STATE
271
class. The means-test is therefore, imperative to skin off the affluent A
sections of the backward class. [273-B]
Indra Sawhney v. Union of India, [1992] Supp 3 SCC 217, followed.
2. The backward class under Art. 16(4), means the class which has
no element of 'creamy layer', in it. It is mandatory under Art. 16(4) of the B
Constitution, that the State must identify the 'creamy layer' in a backward
1 class and thereafter by excluding the 'creamy layer', extend the benefit of
reservation to the class which remains after such exclusion. [291-C-D]
3. The criteria for identifying the 'creamy layer', laid down by the
Government of India is in conformity with the law laid down by the
Supreme Court in Mandal's case, but the criterion laid down by the States
of Bihar and U.P., which have added further conditions, are wholly arbitrary apart from being contrary to, and in utter violation of the
guidelines laid down in Mandal's case. [285-C; 291-F]
4. Multiple conditions have been provided in all the categories under
the impugned criterion. The 'spouse' to be a graduate and holding property
in urban area, are the conditions attached to almost every category. These
conditions have no nexus to the object sought to be achieved. Since the
conditions are not severable, the two criteria as a whole have to be struck
down. [291-B]
5. This court has laid down, clear and easy to follow guidelines for
the identification of the 'creamy layer'. The States of Bihar and U.P. have
acted wholly arbitrary and in utter violation of the same. [291-D]
6. Thus the criterion for identification of the 'creamy layer•: laid
down by the States of Bihar and U.P. are violative of Art. 14 & 16( 4) of the
Constitution and are liable to be quashed. It will be open to the two States
to lay down, fresh criteria for the subsequent years in accordance with the
law. [292-B]
CIVIL ORIGINAL JURISDICTION: Writ Petition (c) No. 631 of
1994.
Under Article 32 of the Constitution of India.
c
0
E
F
G
Kapil Sibal, K.K. Venugopal, K.N. Bhatt, Dr. Rajiv Dhawan and H
272
SUPREME COURT REPORTS [1995] S.UPP. 3 S.C.R.
A
Harish N Salve, A. Sharan, Ms. Bina Gupta, N.S. Bisht, D.S. Bora, P.P.
B
c
D
E
F
Tripathi, N.K. Goel, Mrs. Sheela Goel, B.B. Singh, R.B. Misra, R.C.
Pandey, M.M. Kashyap, Ms. Shashi Kiran, Ms. Usha Mishra, Navin
Prakash and Irshad Ahmad, for the appearing parties.
The Judgment of the Court was delivered by
KULDIP SINGH, J. 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.
A Nine-Judge Bench of this Court in "Mandal case" - Indra Sawhney
v. Union of India, [1992] Supp. 3 SCC 217 - 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).
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 benefitted. 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 practiced
G on them by the Higher class is in turn practiced 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 sections of the backward class and the poorer
and the really backward sections among them keep on getting poorer and
H more backward. It is only at the lowest level of the backward class where
, .
AK. THAKUR v. STATE [KULDIP SINGH,J.)
;
273
the standards of deprivation and the extent of backwardness may be A
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 sections of the class. The
means- test is, therefore, imperative to skim-off the affluent section of the
backward class.
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.
P.B. Swant, J. spoke about the 'creamy layer' in the following words:
B
c
"The correct criterion for judging the forwardness of the for.,..<trds D
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
E
or higher class posts? A Class JV employee's children may develop F
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 representation in the services as discussed earlier, 'is G
to be evaluated in terms of qualitative and not mere quantitative
representation, which means representation in the higher rungs of
administration as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level
posts also. Such capacity will be acquired only when the backward
sections reach those levels or at least, near those levels."
H
274
SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.
'
A
R.M. Sahai, J. held that the exclusion of 'creamy layer' is a social
B
c
D
E
F
G
H
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 that class may have achieved the social
status or economic affluence. Disentitle them from claiming reservation. Therefore, while reserving posts for backward classes, the
departments should make a condition precedent that every 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 be 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
monopolisation of the services reserved for backward classes by a
few. Creamy layer, thus, shall stand eliminated."
KP. Jeevan Reddy, J. Speaking for the Court enunciated the concept
of 'creamy layer' in the following words :
"The very concept of a class denotes a number of persons having
certain common traits which distinguish them from the others. In
a backward Class under Clause ( 4) of Article 16, if the connecting
link is the social backwardness, it should broadly be the same in a
given class. If some of the members are far too advanced socially
(which in the context, necessarily means economically and, may
also mean educationally) the connecting thread between them and
the remaining class snaps. They would be misfits in the class. After
excluding them alone, would the class be a compact class. In fact,
such exclusion benefits the truly backward. Difficulty, however,
really lies in drawing the line-how and where to draw the line?
For, while drawing the line, it should be ensured that it does not
result in taking away with one hand what is given by the other. The
basis of exclusion should not merely be economic, unless, of course,
....
r
AK. TIIAKUR v. STATE [KULDIP SINGH, J.)
275
the economic advancement is so high that it necessarily means A
social . advancement. Let us illustrate the point. A member of
backward class, say a member of carpenter caste, goes to Middle
East and works there as a carpenter. If you take his annual income
in rupees, it would be fairly high from the Indian standard. Is he
to be excluded from the Backward Class? Are his children in India
to be deprived of the benefit of Article 16(4)? Situation may,
however, be different, if he rises so high economically as to become
- say a factory owner himself. In such a situation, his social status
B
also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of
his social status. Even otherwise there are several practical difficulC
ties too in imposing an income ceiling. For example, annual income
of Rs. 36,000 may not count for much in a city like Bombay, Delhi
or Calcutta whereas it may be a handsome income in rural India
anywhere. The line to be drawn must be a realistic one. Another
question would be, should such a line be uniform for the entire D
country or a given State or should it differ from rural to urban
areas and so on. further, income from agriculture may be difficult
to assess and, therefore, in the case of agriculturists, the line may
have to be drawn wii:h reference to the extent of holding. While
the income of a person can be taken as a measure of his social
advancement, the limit to be prescribed should not be such as to
result in taking away with one hand what is given with the other.
The income limit must be such as to mean and signify social
advancement. At the same time, it must be recognised that there
are certain positions, the occupants of which can be treated as
socially advanced without any further enquiry. For example, if a
member of a designated backward class becomes a member of IAS
or IPS or any other All India Service, his status in Society (social
status) rises : he is no longer socially disadvantaged. His children
E
F
get full opportunity to realise their potential. They are in no way
handicapped in the race of life. His salary is also such that he )s G
above want. It is but logical that in such a situation, his children
are not given the benefit of reservation. For by giving them the
benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for
the respondents that 'one swallow doesn't make the summer', and H
276
A
B
c
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
that merely because a few members of a caste or class become
socially advanced, the class/caste as such does not cease to be
backward. It is pointed out that clause ( 4) of Article 16 aims at
group backwardness and not individual backwardness. While we
agree that clause ( 4) aims at group backwardness, we feel that
exclusion of such socially advanced members will make the 'class'
a truly backward class and would more appropriately serve the
purpose and object of clause (4). (This discussion is confined to
Other Backward Classes only and has no relevance in the case of
Scheduled Tribes and Scheduled Castes) ...... Keeping in mind all
these considerations, we direct the Government of India to specify
the basis of exclusion - whether on the basis of income, extent of
holding or otherwise - of 'creamy layer"'.
It is difficult to draw a line where a person, belonging to the backward class, ceases to be so and becomes part of the 'creamy layer'. It is
not possible to lay down the criteria exhaustively. This Court has, however,
D speaking through J eevan Reddy, J ., dealt with the question elaborately and
has 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'.
E
F
Pursuant to the directions by this Court in 'Mandal case' Government
of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued office memorandum dated September 8, 1993 providing for 27% reservation for the Other Backward
Classes. Para 2(c) of the memorandum excludes the persons/sections mentioned in column 3 of the Schedule to the said memorandum. In other
words, the Schedule consists of the 'Creamy layer'. It would be useful to
reproduce the relevant paras of the said memorandum hereunder :
0FFICE MEMORANDUM
Subject : Reservation for Other Backward Classes in Civil Posts and
G 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
H that following the Supreme Court Judgment in the Indira Sawhney and
·.
AK. THAKUR v. STATE [KULDIP SINGH, J.]
277
others v. Union of India and others case (Writ Petition (Civil) No. 930 of A
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 posts
and services under the Government of India.
2. Consequent to the consideration of the Expert Committee's B
recommendations this Department's Office Memorandum No.
36012/31/90-Estt. (SCT), dated 13.8.90 referred to in para (1) above is
hereby modified to provide as follows :
(a) 27% (twenty seven percent) of the vacancies in civil posts and
services under the Government of India, to be filled through direct recruitC
ment, shall be reserved for the Other Backward Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will
be issued separately.
(b) ................. .
( c) (i) The aforesaid reservation shall not apply to persons/sections
mentioned in column 3 of the Schedule to this office memorandum.
(ii) The rule of exclusion will not apply to persons working as artisans
or engaged in hereditary occupation, callings. A list of such occupations,
D
callings will be issued separately by the Ministry of Welfare.
E
(d) ................ ..
(e) ................. .
3 ................... .
F
SCHEDULE
Description of category
To whom rule of exclusion will apply
I.
CONSTITUTIONAL POSTS
Son (s) and daughter (s) of
G
(a) president of India;
(b) Vice President of India
(c) Judges of the Supreme Court
and of the High Courts;
H
278
SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
A
(d) Chairman & Members of UPSC
and of the State Public Service
Commission; Chief Election
Commissioner; Comptroller &
Auditor General of India;
B
(e) persons holding Constitutional
positions of like nature.
II.
SERVICE CATEGORY
Sons (s) and daughter (s) of
A Group A/Class I officers
(a) parents, both of whom are
...
.....
c
of the all India Central and
Class I officers;
State Services (Direct Recruits). (b) parents, either of whom is a
Class I officer;
(c) parents, both of whom are class
I officers, but one of them dies
D
or suffers permanent incapacitation.
(d) parents, either of whom is a
Class I officer and such parent
E
dies or suffers permanent incapacitation and before such
death or such incapacitation has
had the benefit of employment
in any International Organisation like UN, IMF, World Bank,
F
etc. for a period of not less than
5 years.
(e) parents, both of whom are class
I officers die or suffer perG
manent incapacitation and
before such death or such incapacitation of the both, either
of them has had the benefit of
employment in any international
Organisation like UN, IMF,
H
World Bank, etc. for a period of
-
AK. THAKUR v. STATE (KULDIP SINGH,J.]
279
B. Group B/Class II officers of
the Central & State Services
(Direct recruitment)
not less than 5 years.
Provided that the rule of exclusion
shall not apply in the following
cases:
A
(a) Sons and daughters of parents 'B
either of whom or both of whom
are Class-I officers and such
parent (s) dies/die or suffer permanent incapacitation.
(b) A lady belonging to OBC C
category has got married to a
Class-I officer, and may herself
like to apply for a job.
Son (s) and daughter (s) of
D
(a) parents both of whom are Class
II officers.
(b) parents of whom only the husband is a Class II officer and he
gets into Class I at the age of 40 E
or earlier.
( c) parents, both of whom are Class
II officers and one of them dies
or suffers permanent mcapacitation and either one of F
them has had the benefit of
employment in any International Organisation like UN, IMF,
World Bank, etc. for a period of
not less than 5 years before such G
death or permanent incapacitation;
( d) parents of whom the husband is
a Class I officer (direct recruit
or pre-forty promoted) and the H
280
SUPREME COURT REPORTS. (1995) SUPP. 3 S.C.R.
A
wife is a class II officer and the
wife dies; or suffers permanent
incapacitation; and
. "
(e) parents, of whom the wife is
B
Class I officer (Direct Recruit
or pre-forty promoted) and the
husband is a Class II Officer and
the husband dies or suffers permanent incapacitation
c
Provided that he rule of exclusion
shall not apply in the following
cases:
Sons and daughters of
D
(a) Parents both of whom are Class
II officers and one of them dies
or suffers permanent incapacitation.
E
(b) Parents, both of whom are Class
II officers and both of them die
or suffer permanent incapacitation, even though either of them
has had the benefit of employment in any International OrF
ganisation like, UN, IMF,
Wodd Bank, etc. for a period of
not less than 5 years before their
death or permanent incapacitati on
G
C. Employees in Public Sector
The criteria enumerated in A & B
Undertakings etc.
above in this Category will apply
mutatis mutandi to officers holding
equivalent or comparable posts in
PSU's, Banks Insurance OrganisaH
tions Universities, etc. and also to
A.K. THAKUR v. STATE [KULDIP SINGH, J.]
281
III. ARMED FORCES
INCLUDING PARAMILITARY FORCES (persons
holding civil posts are not
iii eluded)
equivalent or comparable posts and A
positions under private employment,
Pending the evaluation of the posts
on equivalent or comparable basis in
these institutions, the criteria
specified in Category VI below will
apply to the officers in these Institutions.
Sons(s) and daughter (s) of parents
either or both of whom is or are in
the rank of Colonel and above in the
Army and to equivalent posts in the
Navy and the Air force and the para
Military Forces.
Provided that :
(i) if the wife of an Armed Forces
Officer is herself in the Armed
Forces (i.e. the category under
consideration) the rule of exclusion will apply only when she
herself has reached the rank of
Colonel;
(ii) the service ranks below Colonel
of husband and wife shall not be
clubbed together;
B
c
D
E
F
(iii) If the wife of an officer in the
Armed Forces is in civil employment, this will not be taken into
account for applying the rule of
exclusion unless she falls in the G
service categor)'.1under item No.
11 in Which tase the criteria
and conditions enumerated
therein will apply to her independently
H
282
SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.
A
IV.
PROFESSIONAL CLASS
AND THOSE ENGAGED
IN TRADE AND INDUSTRY
(I)
B
Persons engaged in profession Criteria specified against Category
as a doctor, lawyer, chartered IV will apply :-
accountant, Income-tax consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artists
c
and other film professional,
author, playwright, sports person, sports professional,
media professional or any
other vocations of like status.
D
(II)
Persons engaged in trade,
business and industry.
E
F
G
•
V.
PROPERTY OWNERS
H
A. Agricultural holdings
Criteria specified against Category
VI will apply :
Explanation :
(i) Where the husband is in some
profession and the wife is in a
Class II or lower grade employment, the income/wealth test
will apply only on the basis of
the husband's income
(ii) If the wife is in any profession
and the husband is in employment in a Class II or lower rank
post, then the income;wealth
criterion will apply only on the
basis of the wife's income and
the husband's income will not be
clubbed with it.
Son (s) and daughter (s) of persons
belonging to a family (father, mother
AK. THAKUR v. STATE [KULDIP SINGH, J.]
283
B.
Plantations
(i)
Coffee, tea, rubber, etc.
and minor children) which owns.
A
(a) only irrigated land which is equal
to or more than 85% of the statutory
area, or
(b) both irrigated and unirrigated B
land, as follows :
(i) The rule of exclusion will apply
where the pre-condition exists that
the irrigated area (having been
brought to a single type under a
common denominator) 40% or more
of the statutory ceiling limit for irrigated land (this being calculated by
excluding the unirrigated portion). If
c
this pre-condition of not less than D
40% exists, then only the area of
unirrigated land will be taken into
account. This will be done by converting the unirrigated land on the
basis of the conversion formula existing, into the irrigated type. The
irrigated area so computed from
unirrigated land shall be added to
E
the actual area of irrigated land and
if after such clubbing together the
total area in terms of irrigated land
is 80% or more of the statutory ceiling limit for irrigated land, then the
rule of exclusion will apply and disentitlement will occur.
F
G
(ii) The rule of exclusion will not
apply if the land holding of a family
is exclusively unirrigated.
Criteria of income/wealth specified
in Category VI below will apply.
H
284
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
(ii)
Mango, citrus, apply
plantations etc.
B
c
D
E
F
G
H
C.
Vacant land and/or buildings
in urban areas or urban
agglomorations
VI.
INCOME/WEALTH TEST
Deemed as agricultural holding and
hence criteria at A above under this
category will apply.
Criteria specified m Category
VI below will apply.
Explanation: Building may be
used for residential, industrial
or commercial purpose and the
like two or more such purposes.
Son (s) and daughter(s) of
(a) Persons having gross annual income of Rs. 1 lakh or above or
possessing wealth above the exemption limit as prescribed in
the Wealth Tax Act for a period
of three consecutive years.
(b) Persons in Categories I, II, III
and V A who are not disentitled
to the benefit of reservation but
have income from other sources
of wealth which will bring them
within the income/wealth
criteria mentioned in (a) above.
Explanation :
(i) Income from salaries or agricultural land shall not be clubbed;
(ii) The income criteria in terms of
rupee will be modified taking
into account the change in its
value every three years. If the
-
AK. THAKUR v. STATE [KULDIP SINGH, J.]
285
situation, however, so demands, A
the interrugnum may be less.
Explanation: Wherever the expression "permanent incapacitation" occur in this
schedule, it shall mean incapacitation which results in
putting an officer out of service."
B
We have carefully examined the criteria for identifying the 'creamy C
layer' laid down by the Government of India in the Schedule, quoted above,
and we are of the view that the same is in conformity with the law laid
down by this Court in 'Manda/ case'. We have no hesitation in approving
the rule of exclusion framed by the Government of India in para 2(c) read
with the schedule of the Office Memorandum quoted above. Learned
counsel for the petitioners have also vehemently commended that the State D
Governments should follow the Government of India and lay down similar
criteria for identifying the 'creamy layer'.
In the light of the above background, we may examine the criteria
for the identification of the 'creamy layer' as laid down by the States of E
Bihar and Uttar Pradesh.
The Government of Bihar promulgated Ordinance No. 5 of 1995 on
January 27, 1995 called "the Bihar Reservation of vacancies in posts and
services (for Scheduled Castes, Scheduled Tribes and other Backward
Classes) Amendment) Ordinance, 1995. By the said Ordinance Section 4 F
of the Bihar Act 3 of 1992 was amended and after the second proviso, the
following proviso was added :
"Provided also that reservation under clause ( d) shall not apply to
the category of backward classes specified in Schedule III."
G
Schedule III is reproduced hereunder :
"Schedule III
(See Section 4(2)]
H
286
A
B
c
D.
E
F
G
H
SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
1. The son or daughter of the President of India, the Vice-President of India, the Chief Justice and Judges of the Supreme Court
of India, the Chief Justice and Judges of .the High Courts, the
Chairman and Members of the Union Public Service Commission
and the Chief Election Commissioner;
2. The son or daughter of such officers who has been directly
recruited in Class I Services of the Central Government or a State
Government or an Undertaking or an institution fully or partially
financed by them; and
(a)
Whose income from salary is rupees ten thousand or
more per mensum, and
(b)
Whose wife or husband, as the case may be, is at least
a graduate, and
(c)
Who or his wife or her husband, as the case may be,
owns a house in an urban area, and
( d)
Whose mother or father has also been directly recruited
to class I services.
Explanation.--Class I means the pay bracket fixed by the State
government from time to time for Class I.
3. The son or daughter of such person engaged as doctor,
advocate, chartered accountant, tax consultant, financial consultant, management consultant, architect or other professionals, and
(a)
(b)
Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs
per annum; and
Whose wife or husband, as the case may be, is atleast
a graduate; and
(c)
Whose family owns immovable property at least of
rupees twenty lakhs.
4. The son or daughter of such person engaged in trade or.
commerce, and -
AK. THAKUR v. STATE [KULDIP SINGH, J.)
287
(a)
Whose average income from all sources for three conA
secutive financial years is not less than rupee ten lakhs
(b)
per annum; and
Whose Wife or husband, as the case may be, is at least
a graduate; and
(c)
Whose family owns immovable property at least of
rupees twenty lakhs.
5. The son or daughter of such industrialist. -
B
(a)
Whose level of investment in running unit or units is C
more than rupees ten crores; and
(b)
Such unit or units are engaged in commercial production for at least five years; and
(c)
His wife or husband, as the case may be, is at least a D
graduate.
6. The son or daughter of such agricultural land-holder.-
(a)
whose average income from all sources other than
agriculture for three consecutive financial years is not E
less than rupees ten lakhs per annum; and
(b)
(c)
Whose wife or husband, as the case may be, is at least
a graduate; and
Who or his wife or her husband, as the case may be,
owns house at least of rupees twenty lakhs in an urban
area.
7. The son or daughter of person, other than the persons
F
specified in serial 1 to 6 of this Schedule :
G
(a)
Whose main source of income is other than animal
husbandry, fisheries, poultry, weaving, craftsmanship,
handicraft and artisanship; and
(b)
Whose average income from all sources for three conH
288
A
B
c
D
E
(c)
(d)
SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.
secutive financial years is not less than rupees ten lakhs
per annum; and
Whose wife or husband, as the case may be, is at least
a graduate, and
Whose family owns immovable property at least of
rupees twenty lakhs.
8. If a person included in serial 1 to 7 of this Schedule performs
inter-castes marriage with a backward class person other than the
categories under serial 1 to 7 of this Schedule, his/her son or
daughter shall not be excluded.
Note -
I. The level of income and the value of property shall
be modified taking into account the variation in the
money value every three years or less period, as the
situation may demand.
II. An affidavit filed by the father or the mother of the
candidate, or in case of their death, by the candidate
himself, shall be deemed to be decisive in respect of
income, value of property and educational qualification."
So far as the State of Uttar Pradesh is concerned the categories
sought to be excluded from the backward classes (creamy layer) are
mentioned in Schedule II read with Section 3(b) of the Uttar Pradesh
F
Public Services Reservation of Scheduled Castes and Scheduled Tribes and
other backward classes Act, 1994. The said categories are as under :
G
1.
"Categ01ies of Persons
excluded
sons and daughters
of
(a)
IAS, IFS, IPS Indian Forest
Service other central service
H
(direct or promotee)
Criteria for exclusion
(i) Income from salary of such member of service is 10,000 or above per
mens um.
' '
~
....
A.K. THAKUR v. STATE [KULDIP SINGH, J.]
289
(b)
U.P. Civil Service, U.P.
(ii) Spouse is at least graduate.
Police Service State
Service. (direct recruit).
(iii) He or his spouse owns a house
in urban area.
\
(c)
Group A/Class I officers of
any Deptt. or Ministry of
Govt. of India or Educational,
Research or other institutions
(no.1 included in above (a)).
(d)
Group A/Class-I officer of any
Deptt. or Institution of State
Govt. (No.1 included in (b)
above.
( e)
An officer of defence forces or
Para Military forces not below
. rank of colonel or equivalent.
2.
SONS AND DAUGHTERS OF --
persons engaged in profession
as a doctor, surgeon, engineers,
lawyer, architect, Chartered
Accountant, media & information
professional, management and
other consultant film artist &
other film professional running
educational institution or
coaching institute or engaged
in the business as a share
broker or in entertainment
business
(i) his average income from all
sources should not be less than
Rs. 10 lakhs per year for 3 consecutive financial years
(ii) Spouse at least a graduate.
(iii) His family property (immovable) should be worth Rs.
20 lakh.
3.
Sons and daughters of --
Businessman.
(i) Provided whose average income
for 3 consecutive financial years
is not less than Rs. 10 lakh per
annum.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
290
4.
5.
6.
SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.
Sons and Daughters of
Industrialist.
Sons and Daughters of -
a person whose holdings
is within limit fixed under
the U.P. Imposition of ceiling
on Land Holdings Act 1960.
Sons and Daughters of -
any others person not
mentioned in aforementioned
categories.
· (ii) Spouse at least a graduate.
(iii) immovable family property
worth at least 20 lakhs.
(i) Whose level of investment m
rtfnning units is over Rs. 10
crore and such units are
engaged in production for at
least 5 years.
(ii) Spouse at least a graduate.
(i) has an income of Rs. 10 lakhs in
a year from sources other than
agriculture.
(ii) His spouse at least a graduate.
(i) whose income from all sources
for 3 consecutive financial years
is not less than Rs. 10 lakhs per
annum.
(ii) Spouse at least a graduate.
(iii) Immovable family property
worth at least Rs. 20 lakhs."
This Court has categorically held in 'Manda! Case' that a person,
belonging to a backward class, who becomes member of IAS, IPS or any
other All India Service, his Children cannot avail the benefit of reservation.
The States of Bihar and Uttar Pradesh have added further conditions such
as salary of rupees ten thousand or more per mensum, the wife or husband
G to be graduate and one of them owning a house in an urban area. so far
as the professionals are concerned, an income of Rs. 10 lakhs per annum
has been fixed as the criterion. It is further provided that the wife or
husband is at least graduate and the family owns immovable property or
the value of at least rupees twenty lakhs. Similarly, the criteria regarding
H trades, industrialists, agriculturists and others is wholly arbitrary apart from
....
AK. TIIAKUR v. STATE [KULDIP SINGH, J.]
291
being contrary to the guidelines laid down by this Court in 'Manda/ case'.
Multiple conditions have been provided in all the categories. The
'Spouse' to he a graduate and holding property in urban area, are the
conditions attached to almost every category. These conditions have no
nexus with the object sought to be achieved. Since the conditions are not
severable the two criterias as a whole have to be struck-down.
This Court, in 'Manda! case' has clearly and authoritatively laid down
A
B
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'. C
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 D
Court has laid down, clear and easy to follow, guidelines for ~he identification of 'creamy layer'. The States of Bihar and Uttar Pradesh have acted
wholly arbitrary and in uttar violation of the law laid down by this Court
in 'Manda! case'. 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 E
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 .
We, therefore, hold that the above quoted criteria, for identification F
of 'creamy layer', laid down by the States of Bihar and Uttar Pradesh is
violative of Article 16( 4), wholly arbitrary - violative of Article 14-and
against the law laid-down by this Court in 'Manda! case'.
We allow the writ petitions and quash (except clause 1 of Schedule
III) the Bihar reservation of vacancies in posts and services (for scheduled G
castes), scheduled tribes and other backward classes) (Amendment) ordinance 1995 (also the Act if ordinance has been converted into Act).