ORDER
1. The grievance in these writ petitions is that the petitioners who fall in one or the other categories of reservation created by the Government under its Order dated 17-9-1994 in No. SWD 150 BCA 94 for admission to professional courses have been
denied the benefit thereof by the respondents by wrongly construing the exclusionary Para-C of the said Reservation Order.
2. Petitioner in W.P. No. 34001 of 1995 belongs to Muslim community and falls under Category 11 (b). Her case is that pursuant to her appearance at the Common Entrance Test she has been assigned the ranking No. 6136 for Medical/BDS course and No. 11913 for Engineering Course. As per categorywise reservation, she being under category 11(b) (Urban), she has been assigned the merit position at 147 (Medical) and 311 (Engineering). Her further case is that, keeping in view her ranking then she appeared for the spot counselling on 2-9-1995 but she was denied the allotment of a seat as per her choice in the reserved category on the ground that the total salary income of her father is more than Rs. 50,000/-.
The grievance of other petitioners in the other two writ petitions is also similar.
3. In all these three writ petitions, as per the salary certificates enclosed to the respective petitions and copies of which, according to them, have been produced before the CET Cell at the time of spot counselling, the pay scales of the fathers’ of the respective petitioners are Rs. 1720 — 3300, Rs. 1280 — 2375; and Rs. 1130 — 2100 respectively. But, keeping in view the total monthly salary received/receivable by them, the annual income would exceed Rs. 50,000/-. It is for this reason the respondent CET Cell has refased admission to these petitioners by giving benefit of the reservation, as claimed by them.
4. The question that falls for consideration is as to whether only because the total annual salary which is inclusive of various allowances over and above the basic pay received/receivable by the parents of the petitioners exceed Rs. 50,000/-, can be a valid ground for denying the benefit of reservation to the petitioners in terms of the Government Order.
5. It is not in dispute that the Government Order which was passed in relation to admission to professional courses for the year 1994-95 has been extended to the current year 1995-96 as well. The said order reads as under:
“GOVERNMENT ORDER NO. SWD 150 BCA 94, BANGALORE DATED 17-9-1994
After careful consideration of all the aspects Government are pleased to order the reservation policy for Scheduled Castes and Scheduled Tribes and Other Backward Classes for admission to the Professional Courses for the year 1994-95 only as follows:
A. The list of castes classified into Cate-gory-I, II(a) II(b), III(a) and III(b) shall be as appended in Annexure I, II, III, IV and V to this order.
(B) The extent of percentage of reservation provided in respect of the following categories of other Backward Classes, Scheduled Castes and Scheduled Tribes is as follows:
Category - I 4 Per cent
Category - II(a) 15 Per cent
Category - II(b) 4 Per cent
Category - III(a) 4 Per cent
Category - III(b) 5 Per cent
Scheduled Castes 15 Per cent
Scheduled Tribes 3 Per cent
______________
Total: 50 Per cent
(C) No person shall be entitled to the benefit of reservation for the purpose of admission to Professional Courses if,--
(i) either of whose parents/guardian is a Class I or Class II Officer in the service of the Government or holds an equivalent posts in public sector undertaking or an employee under a private employer and draws a salary which is not less than that of a Class II Officer (initial stage of the pay scale of Rs. 2050-3950);
(ii) either of whose parents/guardian is an income tax Assessee/Wealth Tax Assessees;
(iii) either of whose parents/guardian is
assessed to Sales Tax;
(iv) either of whose parents/guardian or both together own more than 8 hectares of rained or dry land or its equivalent.
By Order and in the name of the Governor of Karnataka,
Sd/-
(C. H. DEVARAJ)
Deputy Secretary to Government
Social Welfare Department.”
6. A reading of the Government Order makes it clear that exclusionary clause-C has been incorporated in the order for identifying and excluding the “creamy layer” from amongst Backward Classes so as to make the provision of reservation more meaningful and effective keeping in view the law laid down by the Supreme Court in the “Mandal Case”: Indira Sawhney v. Union of India, 1992 Suppl (3) SCC 210 (217) : (1992 AIR SCW 3682). In the said Mandal Case, B.P. Jeevan Reddy, J. speaking for the Court has set out the concept of “creamy layer’ and the broad guidelines for identifying the same in the following words (SCC pp 724-25, paras 792-93 (of Supp SCC); (At Pp 3764-65 of AIR):
“The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In backward class under clause (4) of Art. 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, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of a 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 Art. 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 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 difficulties 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 country or a given State or should it different 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 with 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 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 is 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 dis-advantaged members of the backward class may be deprived of that benefit.”
7. Keeping in view the guidelines set out by the Supreme Court in Mandal Case the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) has issued an Official Memorandum dated 8-9-1993 providing for reservation for other backward classes. Para 2(c) of the Memorandum provides for exclusion of defined class of persons/sections from the benefit of reservation obviously by identifying them as a ‘creamy layer’. The exclusion has been culled out by categorising such persons/sections as holding (i) Constitutional posts, (ii) Service holders, (iii) Armed and Paramilitary personnel, (iv) Professionals, traders and industrialists and (v) Property owners including agriculturists and planters. These categories have been created keeping in view the guidelines laid down by the Supreme Court. As indicated by the Supreme Court in the passage quoted above it was neither feasible nor practicable to lay down any uniform yardstick/measure for identifying socially advanced members from among backward classes who are engaged in different occupations/professions, and, therefore it was found necessary to lay down different measures for each of the broadly classified groups. In the said background of the events and the constitutional requirements, the Government Order in question needs to be renewed and interpeted in a more pragmatic and harmonious manner so that it may sub-serve its intendment and purpose.
8. The exclusionary Para-C of the Government Order comprises of four clauses. Clauses (i) and (iv) are clearly applicable to service holders and agriculturists, since these two clauses can have no relevance to persons who are occupied in any profession, trade or commerce. Similarly clauses (ii) and (iii) are more appropriately applicable to professionals, traders and industrialists. It is also important to note that if clause (ii) which provides that if either of the parents/ guardians of the candidate is an income-tax assessee then he will not be entitled to the benefit of reservation, is applied to the sons or wards of even service holders then in many cases like the present ones, clause (i) virtually becomes nugatory. It is so, because though the sons/wards of employees whose salary is less than that of Class II Officers will not be covered under the exclusion clause (i), but if clause (ii) is applied in their case as well, they will lose the benefit of reservation which is otherwise admissible to them. As held by the Supreme Court in the passage quoted above this will amount to “taking away with one hand what is given by the other”. Such a construction will lead to anomalous situation and will be destructive of the very object of providing reservations to the truly identified backward classes.
9. Keeping in view these aspects in the forefront, in my opinion, it has to be held that in the case of sons/wards of service holders only clause (i) of Para-C of the Government Order will have its application. It is also held that if it is found, as in the present cases, that the initial stage of pay scale of either of the parents is less than that of Class II Officers of the State Government being Rs. 2050-3950, then such candidates will be eligible to the benefit of reservation for the purpose of admission to professional courses.
10. Accordingly it is held that the petitioners in these petitions are entitled to opt for seats in any of the courses/colleges which are presently vacant, keeping in view their ranking in various categories/courses, subject to fulfilling of all other eligibility criteria. It may be noticed here that in W.P. No. 34001 of 1995 by the interim order dated 21-9-1995 it was directed that “if any seat in first year BDS course is still vacant, the same shall be kept vacant until further orders.”
11. Writ petitions are thus allowed to the said extent, but without costs.
12. Petition allowed.