IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 7660 of 2004
DATE OF DECISION: March 2, 2009
Anil Kumar Uppal
...Petitioner
Versus
Punjab State Electricity Board and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Sanjay Majithia, Senior Advocate, with
Mr. Shailender Sharma, Advocate,
for the petitioner.
Mr. D.S. Chanan, Advocate,
for respondent Nos. 1 to 3.
Mr. Ramesh Goyal, Advocate,
for respondent No. 4.
1. Whether Reporters of local papers may be YES
allowed to see the judgment?
2. To be referred to the Reporters or not? YES
3. Whether the judgment should be reported in YES
the Digest?
M.M. KUMAR, J.
This petition filed under Article 226 of the Constitution
prays for setting aside the appointment of Shri Surinder Singh-
respondent No. 4 as Accounts Officer under ‘OBC Category’ in the
respondent-Punjab State Electricity Board (for brevity, ‘the Board’)
being violative of Article 16(4) and Article 14 of the Constitution as
C.W.P. No. 7660 of 2004 2
well as Government instructions/circulars issued by the Government
of India as adopted by the Punjab Government and applicable to
various Public Sector Undertakings including the Board. A further
direction has been sought for directing the Board to fill up the post of
Accounts Officer (Direct Recruit) from OBC Category in consonance
with the notifications/instructions applicable to the Board and to
consider the petitioner for appointment as Accounts Officer in OBC
category. Still further a direction has been sought to the Department
of Welfare, Reservation Cell, Government of Punjab-respondent No.
3 to impress upon the Board to comply with the reservation
instructions in letter and spirit.
2. Brief facts of the case are that the petitioner has been
working as Apprentice Revenue Accountant with the Board since
8.2.2000 and drawing total emoluments of Rs. 4,500/-per month. He
belongs to ‘Thathera’ caste, which is recognised as a Backward class
as per entry at Sr. No. 47 in Chapter XI of the Manual of Reservations
for SC & BC categories, issued by the Reservation Cell of the
Department of Welfare Punjab.
3. Shri Surinder Singh-respondent No. 4 joined the services
of the Board in the year 1999 as an Internal Auditor in the pay scale
of Rs. 6300-10700. He belongs to ‘Kumhar’ caste, which is also
recognised as a Backward class in the Manual of Reservations for SC
& BC categories, issued by the Reservation Cell of the Department of
Welfare Punjab. It has been claimed by the petitioner that for more
C.W.P. No. 7660 of 2004 3
than three successive years, respondent No. 4 is drawing the pay scale
which exceeds Rs. 1,00,000/- per annum.
4. On 16.7.2002 (P-1 & P-2), an advertisement, bearing No.
233/2002, was issued by the Board for filling up 21 posts of Accounts
Officer under direct recruit quota from amongst the employees of the
Board, who were having requisite qualifications and experience. For
the post of Account Officer the candidates were required to have
passed Chartered Accounts Exam or Works Accountant Examination
with three years’ experience in Supervisory capacity in
Government/Public Undertaking etc. The candidates were required to
qualify the initial recruitment test of competitive nature with
minimum 50% marks and candidates of reserved category were
required to secure minimum 40% marks. Apart from various general
conditions laid down in clause 4, there was reservation provided by
clause 3 which reads as under:-
“3. RESERVATION OF POSTS
The recruitment of reserve categories is for Punjab
residents only. The reservation of posts shall be as per
Reservation Policy of the State Govt./as adopted by
PSEB from time to time.”
5. On 3.2.2003 (P-3 & P-4) another advertisement, bearing
No. 241/2003, was issued by the Board inviting application for
additional 12 posts of Accounts Officer under direct recruit quota.
Those who had applied in pursuance to earlier advertisement were not
required to apply again. In this advertisement the criteria of
C.W.P. No. 7660 of 2004 4
qualification was amended by deleting work experience and minimum
eligibility of age for entry into service. The age was reduced from 25
to 20.
6. The petitioner also applied in pursuance to the
advertisement but he was not issued roll number to take the written
test despite his representations dated 7.7.2003, 18.7.2003 and
23.7.2003, which were ultimately rejected vide order dated 28.7.2003
(P-5). The petitioner then filed CWP No. 11699 of 2003 in this Court
seeking a direction to the respondents to issue roll number, permit
him to appear in the examination for the post of Accounts Officer and
select him as per merit. This Court permitted the petitioner to take
the written examination held on 2.8.2003, vide interim order dated
1.8.2003. It was further ordered that the result be kept in a sealed
cover. On 1.9.2003, the Division Bench perused the result of the
written examination and found that the petitioner, who had appeared
as Backward Class candidate, has secured 146 marks whereas Shri
Surinder Singh-respondent No. 4, also a Backward Class candidate,
has secured 164 marks. The Division Bench, thus, observed that Shri
Surinder Singh was to be appointed against the solitary Backward
Class post and dismissed the writ petition (P-6).
7. On 1.9.2003 itself the petitioner made a representation to
respondent No. 2 for supplying categorywise details of 12 posts as
well as merit list of serving revenue employees who had taken the
examination for appointment as Accounts Officer. The petitioner also
sought information whether there is any reserve post lying vacant and
C.W.P. No. 7660 of 2004 5
if so he may be appointed against the same being first in the waiting
list in the backward class category (P-7). On 10.11.2003, respondent
No. 2 called upon the petitioner to appear for interview on 4.12.2003
at PSEB, Headquarter, Patiala (P-8). Along with the call letter a
proforma of the form of certificate to be produced by a candidate
belonging to backward class in support of his claim in terms of
column No. 3 of the Schedule to Punjab Government, Department of
Welfare’s letter No. 1/41/93-RCI/459, dated 17.1.1994, was attached
(P-8/A). In Column 6 of the said letter dated 17.1.1994 it has been
stipulated as under:-
“VI. INCOME/WEALTH TEST
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;
C.W.P. No. 7660 of 2004 6
(ii) The income criteria in terms of rupee will be
modified taking into account the change in its value,
every three years. If the situation, however so demands,
the interrugau (?) may be less.
EXPLANATION: Whenever the expression “permanent
incapacitation” occur in this schedule, it shall mean
incapacitation which results in putting an officer out of
service.”
8. In response to the clarification sought by respondent No.
3 regarding reservation of OBCs in civil posts and services under the
Government, the Ministry of Personnel and Training, Government of
India, vide their communication dated 21.11.2002 (P-9) intimated that
‘determination of creamy layer for an OBC candidate is done with
reference to the income of parents as per instructions contained in
DOPT’s O.M. No. 36012/22/93-Estt (Res) dated 8.9.93’.
9. On 24.12.2003, the petitioner again made a detailed
representation to the Board. Besides other things it was stated that
Shri Surinder Singh-respondent No. 4 has obtained the OBC
Certificate for availing the benefit of reservation in the backward
class category from the competent authority not on the basis of his
and their family income but on the basis of parental income. It has
been claimed that the interviews which were scheduled for 4.12.2003
were postponed and on 24.12.2003 only Shri Surinder Singh-
respondent No. 4 was called for interview (P-10). On 26.12.2003, the
petitioner made another representation (P-11).
C.W.P. No. 7660 of 2004 7
10. On 2.3.2004, the petitioner made yet another
representation to the Board asserting therein that Shri Surinder Singh-
respondent No. 4 was interviewed on 4.2.2004 and upon his selection
also gave acceptance on 1.3.2004 (P-12). The petitioner has also
claimed that Shri Surinder Singh-respondent No. 4 joined as Direct
Recruit Accounts Officer in the 1st/2nd week of March, 2004. Despite
efforts, the petitioner could not lay his hands on the appointment
letter of respondent No. 4. Accordingly, he filed the instant petition.
11. In the written statement filed on behalf of the Board the
stand taken is that the instant petition is not maintainable because the
earlier writ petition, namely, CWP No. 11699 of 2003, filed by the
petitioner has been dismissed by this Court and respondent No. 4 has
been appointed being higher in merit, as per the orders passed by this
Court (P-6). The locus standi of the petitioner has also been
questioned by asserting that he cannot challenge the selection and
appointment of respondent No. 4 because the annual income of the
petitioner is above Rs. 1,00,000/- and he could not avail the benefit of
reservation in the category of backward class. In para 3 of the
preliminary objections, it has been highlighted that the income to be
reckoned for consideration for exclusion as ‘creamy layer’ is that of
the parents and not of the candidate as per instructions of the
Government of Punjab issued vide Memo. No. 1/41/93-R61/1459,
dated 17.1.1994 (R-1) and as per clarification issued by the
Government of India, Ministry of Personnel and Training, dated
21.11.2002 (P-9). On merits, while admitting the factual position it
C.W.P. No. 7660 of 2004 8
has been denied that the income for grant of backward class
certificate is the income of parents of the candidate as per rule
reproduced in para 10 of the writ petition. It has been pointed out
that the petitioner was called for interview provisionally and since his
certificate of backward class was more than 4 years old, he was
asked to furnish latest certificate, which he failed to produce.
Therefore, he could not be called for interview for want of latest
certificate of his belonging to backward class eligible category.
12. In the written statement filed by respondent No. 4, it has
been asserted that no liberty was granted to the petitioner by this
Court while dismissing CWP No. 11699 of 2003 vide order dated
1.9.2003, thus, the instant petition is not maintainable. It has been
contended that the competent authority after considering the
instructions issued by the State of Punjab from time to time has issued
certificate of Backward Class in his favour because he belongs to
‘Ghumiar’ caste, which has been declared as a backward class. It has
further been submitted that the concerned authority of the Board after
considering his merit selected him for the post of Accounts Officer
and there is no illegality or infirmity in his selection and appointment
under backward category. Respondent No. 4 has asserted that even
otherwise he is fully eligible and qualified for appointment to the post
of Accounts Officer. It has also been mentioned that for determining
the ‘creamy layer’ for an OBC candidate the income of the parents is
to be taken into consideration and the income of his parents does not
come within the purview of ‘creamy layer’. In the writ petition there
C.W.P. No. 7660 of 2004 9
is no challenge in the writ petition to the instructions issued by the
Government of India.
13. In the replication filed by the petitioner to the written
statement of respondent Nos. 1 to 3 and respondent No. 4, again it has
been emphasised that for the purposes of determination of income for
taking the benefit of backward class, annual income of respondent
No. 4 has to be taken into consideration instead of annual income of
his parents. It has also been highlighted that after having been
appointed as an Internal Auditor in the Board in the year 1999 in the
pay scale of Rs. 6300-10750, respondent No. 4, being a qualified
Chartered Accountant, was also practicing independently since
1.4.1998 in individual capacity and under the firm M/s Surinder
Sangar and Associates from 14.12.1998 with a licence No. 015849.
The petitioner has also placed on record a letter dated 13.7.2004
written by the Deputy Secretary of the Institute of Chartered
Accountants of India, New Delhi (P-16). It has again been reiterated
that respondent No. 4 does not fall within the category of backward
class for the reasons that his income is more than Rs. 1,00,000/- per
annum.
14. Mr. Sanjay Majithia, learned Senior Counsel appearing
for the petitioner has vehemently argued that basic object of
excluding the persons belonging to ‘Creamy layer’ from the social and
educational backward class category is to ensure that the benefits of
reservation percolate to those who are really backward like the
petitioner. It would open better chances of coming into public
C.W.P. No. 7660 of 2004 10
services by restricting the entry of relatively affluent. Learned counsel
has pointed out that the ‘Means Test’ enshrined by the Supreme Court
in various judgments, has culminated in the Constitution Bench
judgment of Hon’ble the Supreme Court rendered in the case of
Ashoka Kumar Thakur v. Union of Inida, (2008) 6 SCC 1.
Learned counsel has maintained that the official memorandum dated
January 17, 1994, as also the supplementary instructions dated
21.11.2002 (Annexure P-9) must be read down to mean that “a
candidate who has already attained the capacity to earn beyond the
limits imposed by the official memorandum would merge in the
Creamy Layer”. He has urged that if the instructions are not
interpreted in accordance with the object of excluding Creamy Layer
from the reserved category then the very object would be defeated.
Referring to the Schedule attached to the official memorandum dated
17.01.1994, learned counsel has submitted that once a person himself
is a Class-I officer, then to rely on the income of his parents for
availing benefit of reservation would be wholly contrary to the
concept of Creamy Layer laid down by the Supreme Court in the
cases of Indra Sawhney v. Union of India, (1992) Supply. (3) SCC
210. He has referred to various paragraphs of the judgment in Ashoka
Kumar Thakur’s case (supra) and argued that by no stretch of
imagination, respondent No.4 is entitled to the benefit of reservation
as he belongs to Creamy Layer and looses benefit of belonging to
backward class.
C.W.P. No. 7660 of 2004 11
15. Mr. Ramesh Goyal and Mr. D. S. Chanan, learned
counsel for the respondents, however, have argued that the instant
petition is not maintainable as the same is barred by the principles of
res judicata because in the earlier petition namely C.W.P No. 11699
of 2003, the petitioner had agitated the matter and vide order dated
01.09.2003, the Division Bench of this Court has decided against the
petitioner. The Division Bench has ordered after perusing the result
that respondent No. 4 is more meritorious in the reserved category of
Backward Class and, therefore, deserves to be appointed. The
petitioner did not obtain any permission for filing of the fresh petition
and in fact had accepted that respondent No.4 belongs to backward
class category.
16. On merits, learned counsel for the respondents have
argued that on the plain language used by the official memorandum
dated 17.01.1994, as amended on 21.11.2002 (P-9), it is the income
of the parents which is the determining factor for deciding as to
whether a person belongs to Creamy Layer or not? They have
maintained that once respondent No. 4 has given a Certificate as per
the official memorandum that the income of his parents is less than
Rs. One lac per annum, then he has to be granted benefit of official
memorandum providing reservation in favour of the socially and
educationally backward classes. In that regard, learned counsel has
made pointed reference to Clause VI titled as ‘Income/Wealth Test of
the Schedule’, appended to official memorandum dated 17.01.1994.
17. After hearing learned counsel for the parties, perusing
the pleadings with their able assistance along with various provisions
C.W.P. No. 7660 of 2004 12
and judgments cited by them, the question which needs determination
in the instant case is:-
“Whether income of the parents would continue to be the
basis of determining the status of a candidate being
socially and educationally backward despite the fact that
such a person has already attained affluence to be
covered by the expression ‘Creamy Layer’ within the
meaning of official memorandum dated 17.01.1994, as
amended on 21.11.2002 ?”
It would be appropriate to extract in extensor the relevant parts of the
memorandum dated 17.01.1994, which reads, thus:-
“Subject: Socio Economic Criteria for identification
of socially Advanced Persons (Creamy
Layor) from the Other Backward Classes in
the State of Punjab for their exclusion from
the benefit of reservation meant for those
classes in the State Services/Posts- revision
thereof.
Sir,
I am directed to invite a reference to Punjab
Government Letter No.8/113/38-SWA (4) 9119, dated
the 28th November, 1990 vide which it was provided that
the members of Backward Classes that is the Castes
notified as bakcward by the State Government from time
to time, whose income exceeds Rs.10,000/- per annum
C.W.P. No. 7660 of 2004 13shall not be entitled to the benefit of reservation meant
for them in the State Services. The State Government has
given a fresh look to the matter. It has been decided to
replace the above mentioned socio-economic cirterion
with the criteria adopted by the Government of India that
is now only those persons/sections belonging to the
constum notified by the Punjab Government as backward
from time to time, who are socially advanced (Creamy
Layer) as enumerated in column 3 of the Schedule to this
letter shall be excluded from the benefit of reservation
meant for those classes in the services/posts of the State
Government. Henceforth the persons/sections falling in
column No.3 of the Schedule to this letter shall not be
entitled to any such benefit and reservation shall not
apply to them.
2. ……
3. ……
4. ……
5. Similar instructions in respect of Public Sector
Undertaking and Financial Instructions including Public
Sector Banks will be issued by the Government in
respective Departments from the date of issue of these
orders.
6. The authorities which were earlier competent to
issue the Backward Class Certificate shall now certify
that the candidate does not belong to creamy layer of
C.W.P. No. 7660 of 2004 14other backward classes on and that he/she is eligible to
be considered for posts reserved for other backward
classes, Revised proforma of the certificate to be issued
to the candidates belonging in Backward Classes is
enclosed as Annexure ‘A’. Before issuing a certificate in
favour of a Backward Class Candidate for eligibility for
reservation of jobs under Backward Classes quota, the
concerned authority shall satisfy himself/herself about
the genuineness of his claim after obtaining application
from him in the prescribed form as Anenxure ‘B’.”
18. A perusal of the aforesaid memorandum would show that
the criteria of identifying the socially and educationally backward
classes would be the socio-economic criteria. It was initially provided
in the memorandum dated 28.11.1990 that the members of backward
classes, as notified by the State Government from time to time, whose
income exceeds Rs.10,000/- per annum were not to be entitled to the
benefit of reservation made for them in the street services. However,
by the memorandum, the amount of Rs.10,000/- was replaced by a
sum of Rs.One lac. Accordingly the competent authorities who used
to issue the Backward Class Certificate were required to certify that
the candidate did not belong to the Creamy Layer of either backward
classes, before issuing a certificate in favour of a backward class
candidate for eligibility for reservation.
19. In the Schedule, various constitutional posts, services,
including armed forces/paramilitary forces/professional class and
candidate engaged in trade and industry, property owners and
C.W.P. No. 7660 of 2004 15
income/wealth test have been laid down. Entry-IV deal with the
professional class and also refers us to the Income/Wealth Test. Both
the entries deserve to be read, which are as under:
“II. SERVICE
CATEGORY
A. Group A/Class I Son(s) and daughter(s) of
officers of the All
India, Central and (a) parents, both of
State Services (Direct whom are Class I
Recruits) Officer;
(b) A lady belonging to
OBC category has
got married to a
Class-I officer, and
may herself like to
apply for a job.
IV. PROFESSIONAL
CLASS AND
THOSE
ENGAGED IN
TRADE AND
INDUSTRY
(1) Persons engaged in Criteria specified against
profession as a Category VI will apply;
doctor, lawyer,
Chartered
Accountant, Income-
Tax Consultant,
Financial or
management
consultant, Surgeon,
engineer architect,
computer specialist
film artists and other
film professionals,
author, playwright,
sports person, sports
professional, media
professional or any
other vocations of
like status.
VI. INCOME/ Son(s) and dauther(s) of
WEALTH TEST
C.W.P. No. 7660 of 2004 16
(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 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
situation, however,
so demands, the
incurring may be
less.
Explanation: Whenever
the expression "permanent
incapacitation" occur in
this schedule, it shall mean
incapacitation which result
s in putting an officer out
of service."
C.W.P. No. 7660 of 2004 17
20. A perusal of the entries concerning the service category
would show that Rule of Exclusion from reservation would apply if
both the parents are a Class-I Officer. In other words, sons and
daughters of such parents would not be entitled to claim reservation
under the backward class category. However, this Rule of Exclusion
is not to apply in case the parents of such person have died. It is also
not applicable when a lady after marriage to Class-I officer wishes to
apply for a job. In other words, an orphan who had his/her parents in
service who were working on Class-I post, would be entitled to
reservation. Likewise, a lady who is married to a Class-I officer,
would also be entitled to the benefit of reservation. The Schedule
further guide us that professionals like Chartered Accountants etc.
would be subjected to the criteria of income provided by Clause (VI).
In Clause (VI), the guidance available is that sons and daughters of
those persons who have gross annual income of Rs.One lac or above
or possessing wealth above the exempted limit prescribed in the
Wealth Test can for a period of three consecutive years would be hit
by the Rule of Exclusion.
21. The question in the present case is that when the parents
have gross income of Rs. One lac or more then the exclusion
principle would apply and whether the exclusion principle would not
apply if the sons and daughters themselves are earning Rs. One lac or
more as gross income for the three consecutive years. The answer to
the aforesaid question has to be in affirmative because if the
exclusion principle to such an affluent person is not applied, then the
basic object of providing reservation for backward classes would be
C.W.P. No. 7660 of 2004 18
defeated and the benefits accruing from reservation would be taken
away by those who are affluent and belong to ‘creamy layer’ because
the income of the parents has to be clubbed with that of the children if
they claim to be one unit.
22. The concept of ‘creamy layer’ has been evolved by
Hon’ble the Supreme Court in various judgments. In the case of K.C.
Vasanth Kumar v. State of Karnataka, (1985) Supply. SCC 714, it
was held that the root cause of social and educational backwardness
lies in economic backwardness and therefore, economic criterion
should be applied to identify social and educational backwardness for
the purpose of compensatory discrimination or affirmative action.
Although, the Supreme Court had observed that economic criterion is
worth applying for reservation to Scheduled Castes and Scheduled
Tribes but the aforesaid view has not met with an approval of the
Supreme Court in its later pronouncement. Accordingly, directions
were issued re-determining the question of backwardness of the
various Castes/Tribes and for the purposes of Articles 15 (4) and 16
(4) in the light of the latest figures which were to be collected on
various relevant factors in order to refix the extent of reservation for
backward classes. It is significant to notice that the reservation based
on occupation-cum-income can in any event be availed of by
members of backward communities and castes.
23. In Ashoka Kumar Thakur’s case (supra) one of the
fundamental issues raised before the Five Judge Constitution Bench
is “Whether Creamy Layer is to be excluded from the category of
socially and educationally backward classes” and considerable time
C.W.P. No. 7660 of 2004 19
has been devoted to determine the aforesaid issue. The Supreme
Court has noticed 9-Judge Bench decision rendered earlier in Indra
Sawhney’s case (supra) and after critically examining the
constitutional desirability of exclusion of ‘Creamy Layer’ has issued
direction to the government that there was no way out but to accept
the principles of exclusion of the Creamy Layer from the category of
backward class for the purposes of configuring the constitutional
benefit of reservation. All these questions and related issues have
been critically examined by Professor Dr. Virendra Kumar in his
learned Article titled as “Dynamics of Reservation Policy”, Vol. 50
Journal of Indian Law Institute (2008) Oct-Dec p.478. The Supreme
Court in Ashoka Kumar Thakur’s case (supra) has laid down that
exclusion of Creamy Layer is imperative for upholding the paramount
principles of equality and that it is basic structure of the Constitution.
Therefore, non-exclusion of ‘creamy layer’ violates the principle of
equality in two principal ways. If one continues to confer reservation
benefits on ‘creamy layers’, on the one hand that would amount to
‘treating equals unequally’ vis-a-vis persons belong to ‘forward’ or
‘advanced’ class; on the other hand, to rank them with the rest of
backward classes would amount to ‘treating ‘un-equals equally’. Thus,
non-exclusion of ‘creamy layer’ leads to “perverting” the very
objective of special constitutional provisions. It discourages the
beneficiaries to stand at their own feet and compete with the forward
classes as equal citizens. Non-exclusion would also keep the
backward class ‘in-perpetual backwardness’ as if by saying: ‘Once a
C.W.P. No. 7660 of 2004 20
backward class is always a backward class’. The resultant impact of
non-exclusion has been put forward as an aphorism by Bhandari, J:
“Creamy layer inclusion robs the poor and gives to the rich.
Realizing the constitutional imperative of ‘creamy layer exclusion’ for
upholding the paramount principle of equality, the Supreme Court
sealed the possibility of inclusion of creamy layer even in future by
resorting to the amendment of the Constitution. Such an amendment
will be “totally illegal” and violate “the basic structure of the
Constitution”. Inclusion of creamy layer, therefore, “cannot be
allowed to be perpetuated even by constitutional amendments.
24. It is in the aforementioned context that the application of
official memorandum dated 17.01.1994, as amended on 21.11.2002,
deserves to be considered. It can hardly be argued that if a candidate
himself is covered by ‘Means Test’ laid down by the official
memorandum then it would continue to be socially and economically
backward on the basis of income criteria applied to the income of his
parents. Even otherwise, on the interpretation of the official
memorandum it becomes evident that no such benefit is intended to
be conferred on a candidate who himself is in the domain of ‘Creamy
Layer’. In Category No. II-Service Category, exceptions have been
carved out where the Rule of Exclusion is not applicable to some of
the cases. One exception carved out provides that a lady belonging to
other backward class category if gets married to a Class-I officer, then
she would not loose the status of backward class if she herself wishes
to apply. In other words, the Class-I status of her husband in
contradistinction to her parents has become a determining factor. Her
C.W.P. No. 7660 of 2004 21
husband being Class-I would certainly loose the benefit of being
‘socially and educationally backward’. It would be absurd to hold that
if an officer himself holds a Class-I status subject to the fulfilling of
income criteria of Rs.One lac or more then he would be entitled to the
benefit of reservation. Therefore, we are of the view that respondent
No.4 is not entitled to the benefit of reservation because his gross
income is more than Rs. One lac.
25. The question then is “Whether the petitioner would be
entitled to the grant of benefit of reservation?” On facts it is not clear
whether the income of petitioner on the relevant date is less than
Rs.One lac. If he answers the income criteria and is not hit by the
Rule of Exclusion, then he deserves to be considered as per law.
26. The argument of learned counsel for the respondents that
the writ petition is not maintainable and is hit by the principles of res
judicata have failed to impress us because the question raised in the
earlier writ petition was the eligibility of taking examination and not
whether respondent No.4 is hit by the criteria of Creamy Layer. We
have, therefore, no hesitation in rejecting the aforesaid argument.
27. For the reasons aforementioned, this petition succeeds.
The appointment of respondent No. 4 is hereby quashed.
Respondents No.1 and 2 are directed to consider the case of the
petitioner and if he answers the economic criteria of backward class
candidate on the relevant date as laid down in the official
memorandum dated 17.01.1994 as amended on 21.11.2002, then to
appoint him on the post of Accounts Officer in accordance with law.
C.W.P. No. 7660 of 2004 22
The needful shall be done within a period of two months from the
date of receipt of copy of this order.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
March 2, 2009 JUDGE
Shalini/Pkapoor