# Union of India and Others v. Rohith Nathan and Another, Etc

- **Citation:** 2026 INSC 230
- **Court:** Supreme Court of India
- **Decided:** 2026-03-11
- **Bench:** Pamidighantam Sri Narasimha, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-others-v-rohith-nathan-and-another-etc-39109
- **Pages:** 57

## Headnote

Whether the clarificatory letter dated 14.10.2004 can have any
overriding or superseding effect over the Office Memorandum dated
08.09.1993, which expressly lays down the criteria for exclusion
from the benefit of reservation for Other Backward Classes (OBCs)
by identifying the creamy layer namely, the socially advanced
persons of sections among the Socially and Educationally Backward
Classes; whether there can be hostile discrimination between
employees of the Government and those working in Public or
Private Sector Undertakings, when both occupy posts of the same
grade or class.
Headnotes†
Reservation - OBC reservation - Creamy layer status -
Determination of, solely on the basis of income brackets without
reference to the categories of posts and status parameters
enunciated in 1993 Office Memorandum, unsustainable -
1993 OM laid down the criteria for exclusion from the benefit
of reservation for OBCs by identifying the creamy layer
namely, the socially advanced persons of sections among
the Socially and Educationally Backward Classes, wherein
income from salary and agricultural income stood excluded
from the Income/Wealth Test for determination of creamy layer
status - However, 2004 clarificatory letter, directed inclusion
of salary income of PSU and private sector employees under
Category II(C) - Respondents-candidates (parents of all
respondent candidates were PSU employees, bank employees
or otherwise fell under Category II(C) of the Schedule to the
Office Memorandum dated 08.09.1993) qualified the Civil
* Author
2
[2026] 4 S.C.R.
Supreme Court Reports
Services Examination however, as the equivalence of posts
in PSU, banks and other organisations vis-à-vis Government
posts had not been formally determined, the DoPT applied
the Income Wealth Test under Category VI of the 1993 OM r/w
2004 Letter and upon assessing the parental income of the
respective candidates for the preceding three financial years,
and classified them as falling within the Creamy Layer of the
OBCs, rendering them ineligible for OBC (Non-Creamy Layer)
reservation benefits - Thus, their cases were not considered
for service allocation under the reserved category - CAT
passed orders in favour of the the respondents - Challenged
by appellants, writ petitions dismissed by the High Courts of
Madras, Delhi and Kerala:
Held: No infirmity in the impugned judgments - Determination
of creamy layer status solely on the basis of income brackets,
without reference to the categories of posts and status parameters
enunciated in the 1993 OM is unsustainable in law - Overemphasis
on the 2004 clarificatory letter to the extent of making income
alone determinative without regard to parental status or category
of service would defeat the structural framework of exclusion
envisaged under the 1993 OM - Under the 1993 OM, salary income
and agricultural income are consciously kept outside the common
pool while determining exclusion under the Income/Wealth Test -
A mere government letter cannot have the effect of overriding,
overruling or superseding any proceeding in the nature of an
executive instruction or an Office Memorandum issued in exercise
of executive power u/Art.162 - Therefore, the clarificatory letter
must be construed strictly as one explaining or supplementing the
foundational guidelines laid down in the 1993 OM, which was issued
after due deliberation and following the requisite procedure and not
as altering its substantive framework - Salary income cannot be
mechanically aggregated in a manner that defeats the constitutional
objective articulated in Indra Sawhney - A comprehensive reading
of the 1993 OM along with the 2004 clarificatory letter shows that
income from salaries alone cannot be the sole criterion to decide
whether a candidate falls within the creamy layer - The status
as well as the category of post to which a candidate's parent or
parents belong is essential - Mere determination of the status of
a candidate as to whether he/she falls within the c

## Text

_Characters 0–39,988 of 120,364. This is a partial read: ask again with offset=39988 for what follows._

[2026] 4 S.C.R. 1 : 2026 INSC 230
Union of India and Others
v.
Rohith Nathan and Another, Etc.
(Civil Appeal No(s). 2827-2829 of 2018)
11 March 2026
[Pamidighantam Sri Narasimha and
R. Mahadevan,* JJ.]
Issue for Consideration
Whether the clarificatory letter dated 14.10.2004 can have any
overriding or superseding effect over the Office Memorandum dated
08.09.1993, which expressly lays down the criteria for exclusion
from the benefit of reservation for Other Backward Classes (OBCs)
by identifying the creamy layer namely, the socially advanced
persons of sections among the Socially and Educationally Backward
Classes; whether there can be hostile discrimination between
employees of the Government and those working in Public or
Private Sector Undertakings, when both occupy posts of the same
grade or class.
Headnotes†
Reservation - OBC reservation - Creamy layer status -
Determination of, solely on the basis of income brackets without
reference to the categories of posts and status parameters
enunciated in 1993 Office Memorandum, unsustainable -
1993 OM laid down the criteria for exclusion from the benefit
of reservation for OBCs by identifying the creamy layer
namely, the socially advanced persons of sections among
the Socially and Educationally Backward Classes, wherein
income from salary and agricultural income stood excluded
from the Income/Wealth Test for determination of creamy layer
status - However, 2004 clarificatory letter, directed inclusion
of salary income of PSU and private sector employees under
Category II(C) - Respondents-candidates (parents of all
respondent candidates were PSU employees, bank employees
or otherwise fell under Category II(C) of the Schedule to the
Office Memorandum dated 08.09.1993) qualified the Civil
* Author
2
[2026] 4 S.C.R.
Supreme Court Reports
Services Examination however, as the equivalence of posts
in PSU, banks and other organisations vis-à-vis Government
posts had not been formally determined, the DoPT applied
the Income Wealth Test under Category VI of the 1993 OM r/w
2004 Letter and upon assessing the parental income of the
respective candidates for the preceding three financial years,
and classified them as falling within the Creamy Layer of the
OBCs, rendering them ineligible for OBC (Non-Creamy Layer)
reservation benefits - Thus, their cases were not considered
for service allocation under the reserved category - CAT
passed orders in favour of the the respondents - Challenged
by appellants, writ petitions dismissed by the High Courts of
Madras, Delhi and Kerala:
Held: No infirmity in the impugned judgments - Determination
of creamy layer status solely on the basis of income brackets,
without reference to the categories of posts and status parameters
enunciated in the 1993 OM is unsustainable in law - Overemphasis
on the 2004 clarificatory letter to the extent of making income
alone determinative without regard to parental status or category
of service would defeat the structural framework of exclusion
envisaged under the 1993 OM - Under the 1993 OM, salary income
and agricultural income are consciously kept outside the common
pool while determining exclusion under the Income/Wealth Test -
A mere government letter cannot have the effect of overriding,
overruling or superseding any proceeding in the nature of an
executive instruction or an Office Memorandum issued in exercise
of executive power u/Art.162 - Therefore, the clarificatory letter
must be construed strictly as one explaining or supplementing the
foundational guidelines laid down in the 1993 OM, which was issued
after due deliberation and following the requisite procedure and not
as altering its substantive framework - Salary income cannot be
mechanically aggregated in a manner that defeats the constitutional
objective articulated in Indra Sawhney - A comprehensive reading
of the 1993 OM along with the 2004 clarificatory letter shows that
income from salaries alone cannot be the sole criterion to decide
whether a candidate falls within the creamy layer - The status
as well as the category of post to which a candidate's parent or
parents belong is essential - Mere determination of the status of
a candidate as to whether he/she falls within the creamy layer or
the non-creamy layer of the OBCs cannot be decided solely on
[2026] 4 S.C.R.
3
Union of India and Others v. Rohith Nathan and Another, Etc.
the basis of the income - Any attempt to read paragraph 9 of the
2004 Letter in isolation, so as to dilute or override the substantive
scheme of the 1993 OM would be legally untenable - Appellants to
consider the claims of the respondent candidates and intervenors in
accordance with the principles laid down in the present judgment,
and to implement the same within six months from the date of this
judgment. [Paras 21.15, 21.17, 26, 30, 31, 44]
Reservation - OBC reservation - Creamy layer status - Whether
there can be hostile discrimination between employees of the
Government and those working in Public or Private Sector
Undertakings, when both occupy posts of the same grade
or class:
Held: Treating similarly placed employees of private entities and
PSUs differently from Government employees and their wards,
while deciding their entitlement to reservation, would amount to
hostile discrimination, as rightly held by the High Court - Treating
the children of those employed in PSUs or private employment,
etc., as being excluded from the benefit of reservation only on
the basis of their income derived from salaries, and without
reference to their posts (whether Group A or B, or Group C or D)
would certainly lead to hostile discrimination between parties who
are similarly placed and would amount to equals being treated
unequally, thereby attracting the rigour of the equality doctrine under
Articles 14, 15 and 16, of which reservation is a facet - Art.16(4)
is a structural reflection and a conceptualized representation of
the principle of substantive equality embodied and envisaged
u/Art.16(1) - Therefore, any interpretation of the 1993 OM or the
2004 Letter that results in unequal treatment of similarly placed OBC
candidates would not only be legally erroneous but constitutionally
impermissible. [Paras 34, 37, 40]
Parent policy - Clarificatory instruction:
Held: A clarificatory instruction cannot introduce a substantive
condition that does not exist in the parent policy - If it travels
beyond explanation and alters rights or liabilities, it ceases to
be clarificatory and assumes the character of an amendment.
[Para 24]
Reservation - Constitutional and statutory background
of reservation in India - Reservation framework for Other
4
[2026] 4 S.C.R.
Supreme Court Reports
Backward Classes (OBCs)/Socially and Educationally
Backward Classes - Examined. [Paras 21.2-21.17]
Reservation - OBC reservation - Creamy layer status -
"equivalence of posts", a matter of policy:
Held: The question of "equivalence of posts" as contemplated both
in the 1993 OM and in the subsequent 2004 Letter, is fundamentally
a matter of policy - Such equivalence must be determined by the
Government on the basis of a detailed analysis of data by experts
in the field - Until such equivalence is formally evaluated and
notified by the Government, the entitlement of candidates whose
parent(s) work in organisations other than in Class I or II of the
Central or State Civil Services, shall be decided by the Income/
Wealth Test. [Para 23]
Case Law Cited
Indra Sawhney v. Union of India and Others [1992] Supp. 2 SCR
454 : (1992) Supp. 3 SCC 217 - followed.
Ashok Kumar Thakur v. Union of India [2008] 4 SCR 1 : (2008) 6
SCC 1; M.R. Balaji and Others v. State of Mysore [1963] Supp.
1 SCR 439 : AIR 1963 SC 649; Indra Sawhney v. Union of India
and Others [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168; Neil
Aurelio Nunes v. Union of India [2022] 11 SCR 585 : (2022) 4
SCC 64; Madhuri Patil v. Commissioner, Tribal Development
[1994] Supp. 3 SCR 50 : (1994) 6 SCC 241; R.P. Bhardwaj v.
Union of India (2005) 10 SCC 244; Sushma Gosain v. Union
of India (1989) 4 SCC 468; Dr. PPC Rawani v. Union of India
(1992) 1 SCC 331; Union of India v. Vijay Kumari (1994) Supp.
1 SCC 94; Dr. D.K. Reddy v. Union of India (1996) 10 SCC 177;
Delhi Administration v. Nand Lal Pant [1997] Supp. 1 SCR 510 :
(1997) 11 SCC 488; Union of India v. Parul Debnath [2009] 9
SCR 969 : (2009) 14 SCC 173; State of Andhra Pradesh and
Another v. P. Sagar [1968] 3 SCR 595; K.C. Vasanth Kumar and
Another v. State of Karnataka [1985] Supp. 1 SCR 352 : 1985
SCC OnLine SC 339; K.S. Jayasree v. State of Kerala [1977] 1
SCR 194 : (1976) 3 SCC 730; R. Chitralekha v. State of Mysore
[1964] 6 SCR 368 : AIR 1964 SC 1823; State of Kerala and
Others v. N.M. Thomas and Others [1976] 1 SCR 906 : MANU/
SC/0479/1975 - referred to.
K. Sampath v. State of Tamil Nadu MANU/TN/9958/2006 - referred
to.
[2026] 4 S.C.R.
5
Union of India and Others v. Rohith Nathan and Another, Etc.
Books and Periodicals Cited
21st Report of the Parliamentary Committee on Welfare of Other
Backward Classes (2018-19) - referred to.
List of Acts
Constitution of India.
List of Keywords
Reservation; Other Backward Classes (OBCs); OBC reservation;
Non-Creamy Layer; Creamy layer; Exclusion from the benefit of
reservation for OBCs; Office Memorandum dated 08.09.1993;
1993 Office Memorandum; OBC (Non-Creamy Layer) reservation
benefits; Hostile discrimination between employees of Government
and those in Public or Private Sector Undertakings; Income / Wealth
Test for determination of creamy layer status; Determination of
creamy layer status on the basis of income brackets; Categories of
posts and status parameters; Income from salary and agricultural
income excluded; Similarly placed employees of private entities
and PSUs treated differently from Government employees
and their wards; Denial of OBC-Non-Creamy Layer status to
wards of PSU employees; Socially and educationally backward
classes; Unequal treatment of similarly placed OBC candidates;
Discrimination between employees of the Government and of Public
or Private Sector Undertakings; Discrimination between the wards
of Government servants and of PSU/private sector employees;
Reservation policy; Social justice; Principle of advancement of
weaker sections; Socio-Economic Refinement and Means Test;
Mandal Commission; Caste; 2004 Clarificatory letter; Office
Memorandum; Principle of substantive equality.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 2827-2829
of 2018
From the Judgment and Order dated 31.08.2017 of the High Court
of Judicature at Madras in WP Nos. 6387, 6388, and 6389 of 2017
With
Civil Appeal No(s). 3130-3141 of 2024 and 3297 of 2026
6
[2026] 4 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Appellant(s):
Ms. Aishwarya Bhati, A.S.G., Ms. S. Janani, Sr. Adv., Aman Mehta,
Mrs. Alka Agrawal, Apoorva Kurup, Navanajay Mahapatra, Madhav
Sinhal, Mayank Pandey, Ms. Sansriti Pathak, Shreekant Neelappa
Terdal, Ms. Sonali Jain, Ms. Manisha Chava, Ms. Shagun Thakur,
N. Visakamurthy, Arvind Kumar Sharma, Kamal Kumar Pandey,
Deepak Goel.
Advs. for the Respondent(s):
Basavaprabhu Patil, Sanjay Hegde, T. Raja, Sr. Advs., Vikram
Hegde, Ms. Hima Lawrence, Ms. Chinmayi Shrivastava,
Trishan Dollny, Ankit Tiwari, Arijit Sukla, Ashish, Tanay Hegde,
Roy Abraham, Ms. Reena Roy, Adithya Koshy Roy, Yaduinder
Lal, Sarswata Mohapatra, Himinder Lal,, Vikram Hegde, Ms. Hima
Lawrence, Ms. Chinmayi Shrivastava, M.t. Arunan, Trishan Dollny,
M.A. Aruneshe, Arijit Sukla, Prateek K Chadha, Sreekar Aechuri,
Aniket Chauhaan, Harsh Parashar, Shreekant Neelappa Terdal,
Vardhman Kaushik, Arindam Sarin, Mayank Sharma, Dhruv Joshi,
Vinay Kaushik, Mrs. P S Vijayadharni, Nishant Gautam, Varinder
Kumar Sharma, Ms. Manju Jetley, Parmanand Gaur, Abhikalp
Pratap Singh, Dhanesh Relan, Ashish Batra, Siddhartha Jha, Vikram
Hegde, Ms. Hima Lawrence, Ms. Chinmayi Shrivastava, Trishan
Dollny, Ankit Tiwari, Arijit Sukla, Ashish, Tanay Hegde, Vikram
Hegde, Prateek K Chadha, Sreekar Aechuri, Aniket Chauhaan,
Vikram Hegde, Ms. Hima Lawrence, Ms. Chinmayi Shrivastava,
M.t. Arunan, Trishan Dollny, M.A. Aruneshe, Arijit Sukla, Anuroop
Chakravarti, M.S.Vishnu Sankar, Ms. Dimple Nagpal, M/s Lawfic,
Varun Thakur, Ms. Shraddha Saran, Ramkaran, Varinder Kumar
Sharma.
Judgment / Order of the Supreme Court
Judgment
R. Mahadevan, J.
Leave granted in SLP (C) No. 17651 of 2022.
2.
This judgment deals with three matters arising out of separate orders
passed by different High Courts. Since the questions of law involved
in all the cases are substantially identical and common, they were
heard together and are being decided by this common judgment.
[2026] 4 S.C.R.
7
Union of India and Others v. Rohith Nathan and Another, Etc.
FACTUAL BACKGROUND
3.
The facts giving rise to the respective appeals are set out below.
C.A. No(s). 2827 - 2829 of 2018 [Union of India & Ors. v. Rohith
Nathan and Anr. Etc.]
4.
The present Civil Appeals have been filed against the common
judgment dated 31.08.2017 passed by the High Court of Judicature
at Madras in W.P. Nos. 6387, 6388 and 6389 of 2017, whereby the
High Court dismissed the writ petitions filed by the appellants and
affirmed the common order dated 12.01.2017 passed by the Central
Administrative Tribunal1, Chennai Bench in O.A. Nos. 1133, 1132
and 1375 of 2014.
4.1. Respondent No. 1 in CA. Nos. 2827 and 2828 of 2018, Rohith
Nathan, secured All India Rank 174 in the Civil Services
Examination, 2012 under the OBC category. His father
was employed in a private organisation namely M/s. HCL
Technologies Ltd., and was drawing a salary exceeding the
prescribed creamy layer limit under the extant guidelines. On
that basis, he was treated as falling within the creamy layer.
Though he was recommended by the UPSC as a General Merit
candidate and allocated to the Indian Police Service against
an unreserved vacancy, Respondent No. 1 sought benefit of
OBC reservation and allocation to the Indian Foreign Service
against the vacancy reserved for OBC candidates by treating
him as OBC (Non-Creamy Layer) candidate. He accordingly
filed O.A. No. 1132 of 2014 before the CAT, Chennai seeking
a direction for allotment to the Indian Foreign Service as per
his OBC rank in the Civil Services Examination, 2012. He also
filed O.A. No. 1133 of 2014 seeking to quash the portion relating
to Category II(C) in the Schedule to the Office Memorandum
dated 08.09.1993 (O.M. No. 36012/22/93-Estt (SCT)).
4.2. Respondent No. 1 in C.A. No. 2829 of 2018, G. Babu, appeared
in the Civil Services Examination, 2013 under the OBC category
and secured Rank 629. His father was employed in a Public
Sector Undertaking namely Neyveli Lignite Corporation, as
1
For short, "CAT"
8
[2026] 4 S.C.R.
Supreme Court Reports
a Senior Executive Engineer. As his father's salary income
exceeded the prescribed limit, he was also treated as falling
within the creamy layer under the applicable guidelines. To
claim the benefit of OBC reservation for allocation to a service
against a vacancy reserved for OBC candidates, Respondent
No. 1 filed O.A. No. 1375 of 2014 before the CAT, Chennai
Bench seeking reallocation to the Indian Police Service or any
other service as per his OBC rank.
4.3. The CAT, having heard the parties, held that under the Office
Memorandum dated 08.09.1993, income from salary and
agricultural income stood excluded from the Income / Wealth
Test for determination of creamy layer status. It further held that
paragraph 9 of the clarificatory letter dated 14.10.2004, insofar
as it directed inclusion of salary income of PSU and private
sector employees under Category II(C), resulted in hostile
discrimination between the wards of Government servants and
those of PSU/private sector employees. By its common order
dated 12.01.2017, the CAT allowed all three Original Applications
and directed as follows:
"We direct the DoPT to withdraw the clarification in
para 9 of the OM dated 14.10.2004 to the extent it is
made applicable to II-C and reformulate it appropriately
in the light of the observations made herein within
a period of three months. The respondents are also
directed to reallocate the service of the two applicants
on the basis of their OBC status within a period of
three months from the date of receipt of a copy of
this order."
4.4. Aggrieved, the Union of India and others filed W.P. (C) Nos. 6387,
6388 and 6389 of 2017 before the High Court of Madras. By
common judgment dated 31.08.2017, the High Court dismissed
all three writ petitions primarily on two grounds:
(i)
The failure of the Union of India to formulate an
equivalence / comparability test resulted in placing the
sons and daughters of PSU employees at a disadvantage
compared to similarly placed Government servants; and
(ii)
When salary income of parents serving in State/Central
Government in Group C and D posts, or those entering
[2026] 4 S.C.R.
9
Union of India and Others v. Rohith Nathan and Another, Etc.
Group B and A posts, after attaining the age of 40 years, was
not considered for creamy layer determination, inclusion
of salary income of PSU employees under Category II-C
introduced an element of hostile discrimination.
4.5. Challenging the aforesaid common judgment, the appellants
have preferred the present Civil Appeals.
C.A. No(s). 3130 - 3141 of 2024 [Union of India v. Ketan and
others etc.]
5.
The present batch of Civil Appeals has been preferred against the
common judgment dated 22.03.2018 passed by the High Court of
Delhi at New Delhi in W.P. Nos. 3073 - 3084 of 2017. By the said
judgment, the High Court disposed of the writ petitions, set aside
Letter No. 36033/5/2004- Estt. (Res.) dated 14.10.2004, and directed
the appellants to verify the creamy layer status of the respondent
candidates (except Sagar Chourasia, who had already been selected)
strictly in terms of Office Memorandum dated 08.09.1993.
5.1. According to the appellants, the respondents had appeared
in the Civil Services Examination, 2015 claiming reservation
under the OBC (non-creamy layer) category. The parents of all
respondent candidates were PSU employees, bank employees
or otherwise fell under Category II(C) of the Schedule to the
Office Memorandum dated 08.09.19932. The candidates were
recommended by the UPSC for service allocation. While
forwarding their dossiers, UPSC requested verification of their
creamy layer status.
5.2. Upon verification, it was found that equivalence of their parents'
posts qua Government posts had not been established.
Accordingly, applying the 1993 OM read with the clarificatory
letter dated 14.10.2004, the department applied the "income /
wealth test" under Category VI and computed the parents'
salary income for the preceding three years. Since the income
exceeded the prescribed ceiling, the respondents were treated
as falling within the creamy layer. Consequently, by publication
dated 22.06.2016, the respondents were denied allocation under
the OBC category.
2
For short, "1993 OM"
10
[2026] 4 S.C.R.
Supreme Court Reports
5.3. Challenging the same, the respondent candidates filed W.P.
Nos. 3073 - 3084 of 2017 before the Delhi High Court inter alia
seeking quashment of the clarificatory letter dated 14.10.2004
and issuance of a direction for allocation of services treating
them as OBC (Non-Creamy Layer) candidates.
5.4. During the pendency of the matter, the Union of India issued
Office Memorandum No. DPE-GM-/0020/2014-GM-FTS-1740
dated 25.10.2017, clarifying gradation and creamy layer criteria
in Central Public Sectors Enterprises, indicating that Board level
and Managerial-level posts (below Board level) subject to the
proviso that executives whose annual income as per 1993 OM
was less than Rs. 8 lakhs, would not fall under the creamy layer.
5.5. By the impugned judgment dated 22.03.2018, the Delhi High
Court disposed of the writ petitions, by holding that the 1993 OM
contemplated consideration only of income from "other sources"
for applying the Income / Wealth Test where equivalence had
not been established. It further held that the clarificatory letter
dated 14.10.2004 impermissibly introduced salary income as a
determinative factor and lacked rational basis. Consequently, the
High Court set aside the letter dated 14.10.2004 and directed
re-verification strictly in accordance with the 1993 OM.
5.6. Pursuant thereto, the appellants issued a speaking order dated
22.05.2018 reconsidering the matter under the 1993 OM, but
again rejected the claim of Non-Creamy Layer status by taking
into account parental salary. Certain respondents thereafter filed
Contempt Petition (C) Nos. 684/2018, 972/2018 and 973/2018
before the Delhi High Court, in which notices were issued.
5.7. Apprehending coercive proceedings, the appellants have
preferred the present appeals.
Civil Appeal @ SLP (C) No. 17651 of 2022 [Union of India &
Anr. v. DR. Ibson Shah. I. and Anr.]
6.
This Civil Appeal challenges the final judgment dated 25.02.2022
passed by the High Court of Kerala at Ernakulam in OP (CAT) No.
94 of 2021, whereby the High Court declined to interfere with the
order dated 13.10.2020 passed by the Central Administrative Tribunal,
Ernakulam Bench in O.A. No. 718 of 2018.
[2026] 4 S.C.R.
11
Union of India and Others v. Rohith Nathan and Another, Etc.
6.1. The UPSC had issued notification for the Civil Services
Examination, 2016 and the Department of Personnel and
Training3 notified the detailed rules vide Gazette Notification
dated 27.04.2016. Rule 24 required candidates to possess
requisite certificates in the prescribed format for OBC
reservation. Rule 25 stipulated that OBC status, including creamy
layer determination would be reckoned as on the closing date
of applications.
6.2. Respondent No. 1 appeared in the Civil Services Examination,
2016 and the Civil Services Examination, 2017 under the OBC
category and secured Rank 540 (2016) and Rank 620 (2017).
His father had been directly recruited as a Lower Division Clerk
(Group C) in the Legal Metrology Department, Government of
Kerala, and died in 2012. His mother was directly recruited
as Junior Assistant (Group C clerical cadre) in Kerala State
Financial Enterprises (KSFE), a State PSU.
6.3. Upon verification, DoPT found that the mother, being employed
in a PSU under Category II(C), earned salary exceeding Rs.
6 lakhs per annum for three consecutive years (as revised
by the Office Memorandum dated 27.05.2013). Accordingly,
Respondent No. 1 was treated as falling within the creamy
layer. In CSE-2017 he was denied allocation; in CSE-2016 he
was treated as a General Merit candidate and allocated Indian
Defence Accounts Service (IDAS) vide letter dated 21.08.2017.
6.4. Aggrieved, Respondent No. 1 filed O.A. No. 718/2018 before
the CAT, Ernakulam, which ruled in his favour on 13.10.2020.
The High Court of Kerala affirmed the same and dismissed
OP(CAT) No. 94/2021 filed by the appellants, on 25.02.2022,
inter alia holding that:

●
The respondent possessed a valid OBC-NCL certificate
before the cut-off date;

●
Both parents were Group C entrants (clerical cadre) below
Group A and B;

●
Under Category II of the 1993 OM, mere parental service
in a PSU could not lead to creamy layer exclusion;
3
For short, "DoPT"
12
[2026] 4 S.C.R.
Supreme Court Reports

●
The comparability exercise under Category II(C) was
transitional;

●
The Government's failure to determine equivalence could
not prejudice candidates; and

●
Denial of OBC-NCL status to wards of PSU employees,
while granting it to similarly placed Government servants,
would constitute hostile discrimination.
Therefore, the appellant, Union of India, is before this Court with
the present appeal.
SUBMISSIONS OF THE PARTIES
7.
The learned Additional Solicitor General of India appearing for the
appellant in CA Nos. 2827 - 2829 of 2018 / Union of India submitted
that the impugned judgment dated 31.08.2017 passed by the High
Court of Madras in W.P. Nos. 6387, 6388 and 6389 of 2017 is ex facie
unsustainable in law and deserves to be set aside. It was urged that
the exclusion of persons falling within the Creamy Layer is aimed at
ensuring that reservation benefits are not extended to those who are
no longer backward. Any legislative or executive action to remove
such persons, individually or collectively, cannot be constitutionally
invalid but is in consonance with the principle laid down by this Court
in Indra Sawhney v. Union of India and others4. This Court in Indra
Sawhney v. Union of India and others5, explained the rationale
underlying the rule of exclusion of the Creamy Layer, holding that
nonexclusion thereof would amount to discrimination and violation of
Articles 14 and 16, inasmuch as unequals cannot be treated as equals.
It was further submitted that the Union of India was fully competent
and empowered to issue the clarificatory letter dated 14.10.2004 in
order to ensure that the intended benefits of reservation reach the
truly deserving candidates among the backward classes. To sustain
the spirit of the constitutional provisions of equality, it is obligatory
on the State to identify the most deserving candidates, as the State
is obliged to remove inequalities and backwardness from society.
If nondeserving candidates are given the benefit of reservation, it
4
(1992) Supp. 3 SCC 217
5
(2000) 1 SCC 168
[2026] 4 S.C.R.
13
Union of India and Others v. Rohith Nathan and Another, Etc.
would breach the spirit of the constitutional provision. Reliance was
also placed on the decision in Ashok Kumar Thakur v. Union of
India6, wherein this Court held that the Government should not
proceed on the basis that once a class is considered backward, it
should continue to be backward for all times, as such an approach
would defeat the very purpose of reservation.
7.1. The learned counsel further submitted that the respondents have
reached a comparatively higher level of social advancement
and economic status, and therefore, as a matter of law, the
declaration of such persons as being nonentitled to be treated
as backward is sustainable. The Department has rightly
considered the respondents as falling under the Creamy Layer,
and vacancies reserved for OBC candidates are earmarked
and allocated to other nonCreamy Layer candidates who are
eligible and entitled.
7.2. It was contended that the High Court erred in dismissing the writ
petitions solely on the ground of alleged discrimination between
wards of PSU employees and wards of Government employees,
without examining the merits of the individual cases decided
by the Tribunal. The income from the salary of the parents of
the respondents was not considered by the High Court while
deciding the case. The delay in determination of equivalence
between PSU employees and Government employees should
not result in providing an undue advantage to the respondent
candidates who belong to a comparatively higher strata of the
OBC category by virtue of their parents' salary income as this
would deny the benefit of reservation to deserving candidates.
7.3. It was further contended that the 1993 OM has been upheld by
this Court in Ashok Kumar Thakur (supra), and the High Court
erred in holding that the 1993 OM and the clarificatory letter
dated 14.10.2004 bring about hostile discrimination. Clause IIC
of the Schedule to the 1993 OM clearly states that employees
in PSUs, banks, insurance organisations, universities etc. are
to be treated on the same footing as Government employees,
and pending evaluation of equivalence, the criteria specified in
Category VI would apply. All candidates producing certificates for
6
(2008) 6 SCC 1
14
[2026] 4 S.C.R.
Supreme Court Reports
claiming the benefit of reservation under the OBC NonCreamy
Layer category must undergo all six tests given in the Schedule
to the 1993 OM to determine their Creamy Layer status. The
service status of the parents of persons employed in PSUs
or private enterprises, in which equivalence has not been
established visàvis Government services is determined by the
quantum of salary that they receive.
7.4. It was submitted that the clarificatory letter dated 14.10.2004 was
issued only to clarify the procedure to be adopted for applying
the income / wealth test in the case of sons and daughters of
parents employed in PSUs, etc., where equivalence has not
been established. The High Court erred in holding that para
9 of the letter was not in consonance with the 1993 OM. The
timely rise in the income of Government servants through
successive Pay Commissions has not erased the importance
of the social status criteria to be adopted in their case. For
determining Creamy Layer status, the sons and daughters of
Government servants undergo both social and economic tests,
whereas those of PSU and private employees undergo only
the economic test.
7.5. The learned counsel further contended that an appointment
given to a noneligible candidate deprives an eligible NonCreamy
Layer OBC candidate of appointment. The judgment of the High
Court is contrary to the established policy of the Government.
This Court has held that it is not within the domain of the courts
to embark upon an inquiry as to whether a particular public
policy is wise or acceptable, or whether a better policy could be
evolved. Such a policy decision would normally not be interfered
with unless it is capricious, arbitrary, or offends Article 14.
7.6. It was thus submitted that the 1993 OM and the letter dated
14.10.2004 form part of a consistent and constitutionally sound
framework for the identification of the creamy layer, and that
the inclusion of salary in gross annual income aligns with the
principle of substantive equality and prevents distortion of the
reservation system. Further, it was contended that the exclusion
of salary would subvert the constitutional goal of social justice,
lead to reverse discrimination, and create administrative chaos,
thereby undermining the rights of genuinely backward OBC
candidates.
[2026] 4 S.C.R.
15
Union of India and Others v. Rohith Nathan and Another, Etc.
7.7. On these grounds, the learned counsel prays that the impugned
judgment of the High Court dated 31.08.2017 deserves to be
quashed and that the respondents be declared as falling within
the Creamy Layer and not entitled to reservation benefits under
the OBC category.
8.
The learned senior counsel appearing for Respondent No.1 (Rohith
Nathan) submitted that the 1993 OM carries the authority of law,
having been issued pursuant to the directions in Indra Sawhney
and others v. Union of India and others7 after due deliberation
by an Expert Committee, parliamentary scrutiny, and interministerial
consultation. He pointed out that the Expert Committee had evolved
criteria for the exclusion of socially advanced persons from the benefit
of reservation for OBCs, with emphasis on social status and high
income from business, profession, or other sources, while expressly
excluding income derived from salary and agricultural land. The
report of the Committee was laid before both Houses of Parliament
and formally accepted by the Government, and the 1993 OM was
issued after vetting by the Law Ministry and consultation with the
Ministry of Social Justice & Empowerment.
8.1. In contrast, the learned senior counsel submitted that the
clarificatory letter dated 14.10.20048 was issued without
consultation, deliberation, or any traceable administrative record,
and by the DoPT, which was not the competent authority under
the Allocation of Business Rules, 1961. He referred to RTI
responses confirming that no consultation with the Ministry of
Social Justice & Empowerment preceded the issuance of the
2004 letter, and that the file notings were not traceable. He
therefore contended that the 2004 Letter is non est in law and
cannot override or dilute the binding effect of the 1993 OM.
8.2. The learned senior counsel further submitted that the
implementation of the 1993 OM itself demonstrates that salary
and agricultural income are excluded from the income/wealth
test. He referred to the DoPT's Office Memorandum dated
15.11.1993 annexing a model application form which expressly
excluded salary and agricultural income, and pointed out that
7
(1992) Supp. 3 SCC 217
8
For short, "2004 Letter"
16
[2026] 4 S.C.R.
Supreme Court Reports
various State Governments such as Andhra Pradesh, Telangana,
and Tamil Nadu, as well as statutory bodies including the
National Commission for Backward Classes and the Ministry
of Social Justice & Empowerment, have consistently followed
this principle.
8.3. The learned senior counsel contended that it is incorrect for
the Government to submit that OBCs belonging to Category
IIC of the 1993 OM are to suffer exclusion until the equivalence
of posts is conducted. The Expert Committee had expressly
recommended that, pending evaluation of equivalence of posts
in PSUs and other bodies, persons falling under Category IIC
would still be entitled to reservation, subject only to exclusion
under Category VI by application of the income/wealth test.
8.4. The learned senior counsel also submitted that the Government's
interpretation of Explanation (i) to the income/wealth test
is erroneous. The Government has contended that either
income from salary or income from agricultural land is to be
considered, but not both excluded, in determining whether
the monetary limit has been exceeded. He argued that this
interpretation is unsupported by reasoning, contrary to the
consistent implementation of the 1993 OM, and inconsistent
with the Union's own stand in Neil Aurelio Nunes v. Union
of India9. In that case, the Union distinguished OBC and EWS
criteria by clarifying that for OBCs, salary income is excluded,
whereas for EWS, salary income is included. Acceptance of the
Government's present stand would obliterate this distinction,
leading to arbitrariness and inconsistency.
8.5. Thus, the learned senior counsel urged that the 1993 OM, having
statutory force and having been consistently implemented, must
prevail, and that the 2004 Letter, lacking authority, cannot dilute
or override the settled criteria.
9.
The learned counsel appearing for Respondent No. 1 (G. Babu)
submitted that the DoPT cannot question the validity of an OBC
certificate once it has been duly issued by the competent authority.
He contended that DoPT is not the authority empowered to issue
9
(2022) 4 SCC 64
[2026] 4 S.C.R.
17
Union of India and Others v. Rohith Nathan and Another, Etc.
or scrutinize OBC certificates. Under the DoPT Office Memorandum
dated 15.11.1993, the competent authorities for issuance and
verification of OBC certificates are District Magistrates, Collectors,
Deputy Commissioners, SubDivisional Magistrates, Tehsildars and
other designated revenue officers. These authorities are specially
entrusted with determining whether an applicant belongs to the
OBC category and whether he or she falls within the Creamy Layer,
strictly in accordance with the criteria prescribed in the Schedule to
the 1993 OM.
9.1. The learned counsel emphasised that the model application
form appended to the 1993 OM mandates disclosure of detailed
particulars regarding parental qualifications, employment,
income, assets and wealth, which are verified by the issuing
authority. Further, the revised OBC certificate format introduced
by the DoPT's Office Memorandum dated 30.05.2014 expressly
requires the certifying authority to declare that the candidate does
not belong to the Creamy Layer. The certificate is thus issued after
comprehensive scrutiny of contemporary data, including parental
income for the preceding three financial years. He contended
that such certificates cannot be lightly disregarded or questioned
in a cavalier manner. Reliance was placed on Madhuri Patil v.
Commissioner, Tribal Development10, wherein this Court held
that a social status certificate remains valid unless it is found
to be false or fraudulently obtained pursuant to investigation
by a duly constituted Scrutiny Committee.
9.2. The learned counsel further submitted that the 1993 OM issued
pursuant to the recommendations of the Mandal Commission, the
directions of this Court in Indra Sawhney and others v. Union
of India and others11, and the report of the Expert Committee
of the Ministry of Social Justice, comprehensively delineates
the categories falling within the Creamy Layer exclusion. He
argued that the Union of India seeks to rely upon the 2004 Letter;
however, such a letter cannot override or qualify the binding
provisions of the 1993 OM. It was submitted that while the 1993
OM excluded salary and agricultural income from the income /
wealth test, the 2004 Letter sought to include salary income in
10
(1994) 6 SCC 241
11
(1992) Supp. 3 SCC 217
18
[2026] 4 S.C.R.
Supreme Court Reports
the case of PSU employees, thereby introducing an artificial and
hostile discrimination between children of government servants
and those of PSU employees.
9.3. It was further submitted that it is settled law that a mere
executive letter cannot override or amend a subsisting Office
Memorandum. In support, reliance was placed upon R.P.
Bhardwaj v. Union of India12, wherein this Court held that an
operative Office Memorandum cannot be modified or curtailed
through a mere circulation of a letter. Reference was also
made to K. Sampath v. State of Tamil Nadu13 reiterating the
same principle. Accordingly, the 2004 Letter was contended to
be devoid of statutory authority and incapable of diluting the
binding effect of the 1993 OM.
10. The learned counsel appearing for the Intervenors submitted that
the Intervenors adopt the oral and written submissions advanced on
behalf of the respondents. He urged that no separate or novel relief
is required to be crafted. The present Civil Appeals were instituted
by the Union of India against judgments of various High Courts,
seeking direction to the DoPT to reallocate services to the concerned
applicants. In the event of dismissal of the appeals, the said directions
would revive, and the DoPT would be obligated to proceed with
reallocation and verification of OBC status in accordance with law.
10.1. The learned counsel submitted that the Union of India has
been aware of these directions since 2017, 2018 and 2022,
and had in certain matters obtained interim orders of stay. The
Union was thus fully conscious that, if unsuccessful, it would
be required to implement the High Court directions. It cannot
now plead administrative inconvenience. He drew attention to
the 21st Report of the Parliamentary Committee on Welfare of
Other Backward Classes (2018-19), wherein representatives
of the DoPT had informed the Committee that supernumerary
posts would be created to implement the decision of the
Delhi High Court dated 22.03.2018. It was argued that having
undertaken to create such posts, the Union cannot resile from
its stated position upon dismissal of the appeals.
12
(2005) 10 SCC 244
13
MANU/TN/9958/2006
[2026] 4 S.C.R.
19
Union of India and Others v. Rohith Nathan and Another, Etc.
10.2. The learned counsel further submitted that this Court in W.P.(C)
No. 914/2016, by order dated 20.03.2017, had directed that
candidates selected through the Civil Services Examination,
2016 be notified that their selection and seniority would
remain subject to the outcome of litigation initiated by OBC
candidates. The DoPT complied with this direction by issuing
an Office Memorandum dated 20.12.2016. It was contended
that delays in disposal of the present batch were attributable
to repeated adjournments sought by the Union of India.
In such circumstances, the Union cannot invoke equitable
considerations to avoid compliance with binding directions.
10.3. It was submitted that this Court possesses ample powers
under Article 142 of the Constitution to direct creation of
supernumerary posts where candidates have been wrongfully
denied appointment or promotion. In this regard, reliance
was placed upon decisions including Sushma Gosain v.
Union of India14, Dr.