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Service Matter – Direct Recruitment – Backward Class – Creamy Layer – High court taking into consideration of the income of the respondent held that he is not entitled to claim as B.C. – Apex court held that Individual income should not be calculated for upholding whether he comes under Creamy Layer or not, his parents income has to be consider – as such set aside the High court order and allowed the appeal and While allowing the instant appeal, we restore the appointment of the appellant Surinder Singh to the post of Accounts Officer.=CIVIL APPEAL NO. 6957 OF 2009 Surinder Singh ..Appellant versus Punjab State Electricity Board, Patiala and Ors. ..Respondents =2014 – Sept. Month – http://judis.nic.in/supremecourt/imgst.aspx?filename=41999

Service Matter – Direct Recruitment – Backward Class – Creamy Layer – High court taking into consideration of the income of the respondent held that he is not entitled to claim as B.C. – Apex court held that Individual income should not be calculated for upholding whether he comes under Creamy Layer or not, his parents income has to be consider – as such set aside the High court order and allowed the appeal and While allowing the  instant appeal, we restore the appointment of the appellant Surinder  Singh  to  the post of Accounts Officer.=

The High Court, while disposing of Writ Petition  No.  7660  of  2004,

vide the impugned order dated 2.3.2009, arrived at the conclusion, that  the

appellant actually belonged to the “creamy layer”, and  as  such,  was  dis-

entitled to be considered as a “backward class” candidate.  In  arriving  at

the aforesaid conclusion, the High Court took into consideration the  income

of the appellant himself,  to  declare  that  he  belonged  to  the  “creamy

layer”.  The aforesaid  determination  was  rendered  by  reading  down  the

policy instructions issued by the State Government, on  the  basis  whereof,

the backwardness of a candidate had to be adjudged.   The  aforesaid  policy

instructions were read down, to include the income of the person  concerned,

along with the income of the parents of  the  person,  contemplated  by  the

policy instructions.=

whether it was open  to  the  High

Court, to include the individual’s income  in  determining  his  eligibility

for  being  declared  as  backward  class,  by  reading  down   the   policy

instructions on the subject.=

whether or not the individual’s income is to be  taken  into  consideration,

while  computing  the  total  income  relevant  to  determine   whether   an

individual belongs to the “creamy layer”.  The above clarification  reveals,

that  it  is  only  the  parents  income,  which  has  to  be   taken   into

consideration.=

Thus viewed, we are satisfied that  the

individual’s income was not required to be clubbed with the  income  of  his

parents, while determining whether or not he was eligible to  be  granted  a

backward class certificate.   The determination to the contrary by the  High

Court is liable to be set aside.  The same is accordingly hereby set aside.

The instant appeal is accordingly allowed. While allowing the  instant

appeal, we restore the appointment of the appellant Surinder  Singh  to  the

post of Accounts Officer.

2014 – Sept. Month – http://judis.nic.in/supremecourt/imgst.aspx?filename=41999

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6957 OF 2009

Surinder Singh ..Appellant

versus

Punjab State Electricity Board, Patiala and Ors. ..Respondents
J U D G M E N T
J.S. KHEHAR, J.
1. On 16.07.2002, the Punjab State Electricity Board (hereinafter
referred to as the ‘Board’) took a decision to fill up 21 posts of Accounts
Officer. The above posts were to be filled up by way of direct
recruitment. The appellant earned 164 marks in the process of selection.
He made the grade, by way of merit, from amongst “backward class”
candidates. It is therefore, that he came to be appointed as Accounts
Officer, by direct recruitment.
2. Respondent No.4-Anil Kumar Uppal, had also applied for appointment by
way of direct recruitment, in response to the same advertisement (in
furtherance whereof, the appellant was selected and appointed). His
candidature was, however, not accepted. It is therefore, that respondent
no.4 approached the Punjab and Haryana High Court at Chandigarh
(hereinafter referred to as the ‘High Court’) seeking an appropriate
direction to the Board, requiring it to allow him (respondent no.4) to
participate in the process of selection. By an interim order passed by the
High Court, respondent no.4 was allowed to participate in the process of
selection.
3. On considering the candidature of respondent no.4, the Selection
Committee awarded him 146 marks. It is therefore apparent, that in terms
of merit, respondent no.4 could not march over the superior claim of the
appellant. This was so because, whilst the appellant had been awarded 164
marks in the process of selection, respondent no.4 had been awarded only
146 marks.
4. Respondent no.4, in order to claim appointment, chose to assail the
claim of the appellant by asserting, that the appellant did not factually
belong to the “backward class”, and as such, his merit could not be
determined with reference to the posts reserved for “backward class”
candidates. If he could succeed in establishing the aforesaid position,
he would fall in the zone of selection, being possessed of the next highest
marks (after the appellant) from the category of backward class candidates.
Insofar as the instant aspect of the matter is concerned, the pointed
contention of respondent no.4 was, that the appellant belonged to the
“creamy layer”, and as such, he was dis-entitled for being considered from
amongst “backward class” candidates.
5. The High Court, while disposing of Writ Petition No. 7660 of 2004,
vide the impugned order dated 2.3.2009, arrived at the conclusion, that the
appellant actually belonged to the “creamy layer”, and as such, was dis-
entitled to be considered as a “backward class” candidate. In arriving at
the aforesaid conclusion, the High Court took into consideration the income
of the appellant himself, to declare that he belonged to the “creamy
layer”. The aforesaid determination was rendered by reading down the
policy instructions issued by the State Government, on the basis whereof,
the backwardness of a candidate had to be adjudged. The aforesaid policy
instructions were read down, to include the income of the person concerned,
along with the income of the parents of the person, contemplated by the
policy instructions.
6. In the present appeal, the appellant seeks to assail the aforesaid
determination rendered by the High Court. It was the vehement contention
of the learned counsel for the appellant, that the judgment referred to by
the High Court, for arriving at the conclusion, that the personal income of
the concerned individual had to be taken into consideration, was a
misreading of the judgment rendered by this Court. It was in the aforesaid
background, that we shall endeavour to examine the policy instructions
regulating the determination of backwardness of candidates, and the
judgments relied upon by the High Court.
7. First and foremost, reference needs to be made to the office
memorandum dated 8.9.1993 issued by the Government of India, Ministry of
Personnel, Public Grievances & Pension (Department of Personnel &
Training). It is not a matter of dispute between the rival parties, that
the aforesaid office memorandum is applicable to the present
controversy. Under the office memorandum dated 8.9.1993, the claim of the
appellant for grant of a backward class certificate was determinable under
category IV thereof, since it is not a matter of dispute that the appellant
is a qualified Chartered Accountant. However, in column 3 to the schedule
relating to category IV, it is mentioned that the criteria specified
against category VI would be applicable to those who fall under category
IV. In the above view of the matter, our interpretation on the eligibility
of the appellant for being declared as belonging to the backward class,
would be determinable on the basis of the description relatable to category
VI. Category VI and the depiction to whom the same would be applicable, are
being extracted hereunder:
|Sl.No. |Description of category |To whom rule of exclusion will |
| | |apply |
|1 |2 |3 |
|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; |
| | | |
| | |(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 interregnum may be less. |
| | | |
| | |Explanation: wherever the |
| | |expression ‘permanent |
| | |incapacitation’ occurs in this |
| | |Schedule, it shall mean |
| | |incapacitation which results in |
| | |putting an officer out of |
| | |service. |

(emphasis is ours)
Having minutely examined category VI, as also the description contained in
the schedule, to whom the same would apply, there is really no room for any
doubt, that in clauses (a) and (b) thereof, it is the income/wealth of the
parents of the individual concerned, which is of relevance. The
description is clearly silent about the individual’s own income. It is not
possible for us to accept, that the individual’s own income could have been
taken into consideration. The above determination of ours, is with
reference to categories IV and VI. Therefore, even with reference to
category IV, which includes professional’s, the income of the professional,
has not been included. Thus viewed, we are satisfied, that on the plain
reading of category VI of the office memorandum dated 8.9.1993, that it was
not the income of the individual concerned, but that of his parents, that
would determine whether he would fall within the creamy layer or not.
8. The question which still arises is, whether it was open to the High
Court, to include the individual’s income in determining his eligibility
for being declared as backward class, by reading down the policy
instructions on the subject. Insofar as the instant aspect of the matter is
concerned, there can be no doubt, that the issue is determinable with
reference to the decision rendered by this Court in Indra Sawhney vs. Union
of India 1992 Supp. (3) SCC 217. But for the determination of the present
controversy, we need not travel to the decision in Indra Sawhney’s case
(supra). It will be sufficient to make a reference to the decision
rendered by this Court in Ashok Kumar Thakur vs. State of Bihar (1995) 5
SCC 403, wherein this Court, having examined the Office Memorandum dated
8.9.1993, approved the same by observing as under:
“10. We have carefully examined the criteria for identifying the “creamy
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 Mandal case (Indra Sawhney v. Union of India 1992
Suppl. (3) SCC 217). 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 Governments
should follow the Government of India and lay down similar criteria for
identifying the “creamy layer”.
(emphasis is ours)
It is apparent from the observations recorded by this Court, as have been
extracted hereinabove, that the Office Memorandum dated 8.9.1993 had been
examined by this Court,specifically with reference to the decision rendered
in Indra Sawhney’s case (supra). Having done so, this Court expressly
approved and confirmed the Schedule to the Office Memorandum dated
8.9.1993.
9. Based on the aforesaid declaration of law, we are of the view that it
was not open to the High Court to evaluate the office memorandum dated
8.9.1993 from any other parameters. It also needs to be noticed, that the
issue which came up for determination in Ashok Kumar Thakur’s case (supra)
came to be re-examined before a Constitution Bench of this Court in Ashok
Kumar Thakur vs. Union of India (2008) 6 SCC 1, wherein on the subject of
identification of the “creamy layer”, the Constitution Bench observed as
under:
“1-B. IDENTIFICATION OF CREAMY LAYER
415. Income as the criterion for creamy layer exclusion is insufficient
and runs afoul of Sawhney (I). (See p.724 at para 792). Identification of
the creamy layer has been and should be left to the Government, subject to
judicial direction. For a valid method of creamy layer exclusion, the
Government may use its post-Sawhney (I) criteria as a template. (See OM of
8.9.1993, Para 2(c)/Column 3), approved by this Court in Ashoka Kumar
Thakur vs. State of Bihar (1995) 5 SCC 403, para 10. This schedule is a
comprehensive attempt to exclude the creamy layer in which income,
government posts, occupation and landholdings are taken into account.”
(emphasis is ours)

Here again, this Court expressly approved the office memorandum dated
8.9.1993. In view of the decisions rendered by this Court in both Ashok
Kumar Thakur’s cases (supra), we are of the view that the High Court
clearly erred in reading down the office memorandum dated 8.9.1993 and to
include therein the income of the individual concern while determining
whether or not he fall within the “creamy layer”.
10. Despite the declaration of law in the judgments, referred to
hereinabove, it is also necessary to take into consideration the
clarification issued by the Government of India, Ministry of Personnel,
P.G. and Pensions (Department of Personnal and Training) dated 21.11.2002.
The aforesaid clarification was with reference to the office memorandum
dated 8.9.1993. Relevant extract of the clarificatory letter dated
21.11.2002 is being reproduced below:
“I am directed to refer to your letter No.2/25/2001 RC-1/670 dated 17-10-
2002 on the above noted subject and say 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.”

(emphasis is ours)

Based on the aforesaid conclusion, there is really no room for any doubt,
that the exposition with reference to category VI in the office memorandum
dated 8.9.1993 related only to the income of the parents of the individual
concerned. And that, the income of the individual concerned was not to be
taken into consideration.
11. The above issue came to be examined yet again by the Government of
India, Ministry of Personnel, Public Grievances & Pensions (Department of
Personnel and Training) through its memorandum dated 14.10.;2004. In the
above memorandum, a large number of queries were clarified. Queries at
serial nos.(vi) and (vii) of paragraph 4 are relevant to the present
controversy, and are accordingly reproduced hereunder:
“4. Following questions have been raised from time to time about the
application of the above provisions to determine creamy layer.

(vi) Will a candidate who himself is a directly recruited Class I/Group A
Officer or a directly recruited Class II/Group B officer who got into Class
I/Group A at the age of 40 or earlier be treated to be falling in creamy
layer on the basis of his service status?

(vii) will a candidate who has gross annual income of Rs.2.5 lakh or above
or possesses wealth above the Exemption limit as prescribed in the Wealth
Tax Act for a period of three consecutive years be treated to fall in
creamy layer?”

The aforesaid queries came to be answered in paragraph 8 by observing as
under:
“8. In regard to clauses (vi), (vii) and (viii) of para 4, it is
clarified that the creamy layer status of a candidate is determined on the
basis of the status of his parents and not on the basis of his own status
or income or on the basis of status or income of his/her spouse.
Therefore, while determining the creamy layer status of a person the status
or the income of the candidate himself or of his/her spouse shall not be
taken into account.”

(emphasis is ours)

In view of the above, there is no room for any further consideration,
whether or not the individual’s income is to be taken into consideration,
while computing the total income relevant to determine whether an
individual belongs to the “creamy layer”. The above clarification reveals,
that it is only the parents income, which has to be taken into
consideration.
12. While referring to the Clarification/Circular dated 14.10.2007 and
14.10.2004 respectively, we have extracted hereinabove the clear view of
the Government of India. It would also be necessary for us to notice, that
the above determination of the Government of India, was adopted by the
State of Punjab, as is apparent from the letter issued by the Government of
Punjab, Welfare Department (Reservation Cell) dated 14.10.2007, whereby the
letter dated 17.08.2005 and the memorandum dated 14.10.2004 were circulated
by the State Government to all its Deputy Commissioners. It is also not a
matter of dispute, that the aforesaid circulars were expressly adopted by
the Punjab State Electricity Board. Thus viewed, we are satisfied that the
individual’s income was not required to be clubbed with the income of his
parents, while determining whether or not he was eligible to be granted a
backward class certificate. The determination to the contrary by the High
Court is liable to be set aside. The same is accordingly hereby set aside.
13. The instant appeal is accordingly allowed. While allowing the instant
appeal, we restore the appointment of the appellant Surinder Singh to the
post of Accounts Officer.
Special Leave Petition(C) No.17161 of 2009
The controversy in the instant special leave petition is
identical to the one adjudicated upon by this Court in the case of Surinder
Singh vs. Punjab State Electricity Board, Patiala and others (Civil Appeal
No. 6957 of 2009, decided on 25.09.2014).
In the above view of the matter, the instant special leave
petition is also disposed of in terms of the order passed by this Court in
Surinder Singh’s case(supra).
……………………J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; ……………………J.
SEPTEMBER 25, 2014. [ARUN MISHRA]
ITEM NO.102 COURT NO.7 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Civil Appeal No(s). 6957/2009

SURINDER SINGH Appellant(s)
VERSUS

PUNJAB STATE ELECT.BOARD,PATIALA & ORS. Respondent(s)
(with office report)
WITH
SLP(C) No. 17161/2009
(With appln.(s) for Interim Relief and Office Report)

Date : 25/09/2014 This appeal/petition were called on for
hearing today.

CORAM :
HON’BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON’BLE MR. JUSTICE ARUN MISHRA

For Appellant(s) Mr. R.K. Kapoor, Adv.
In CA 6957/2009 Ms. Shiwani Mahipal, Adv.
& respondent in Ms. Rekha Giri, Adv.
SLP 17161/2009 for Mr. Anis Ahmed Khan,AOR(NP)

For Petitioner(s) Mrs. Jayshree Anand, Adv.
In SLP 17161/2009 for Mr. Anurag Pandey,AOR(NP)
& for respondent(s)
in CA 6957/2009

For Respondent(s) Mr. Neeraj Kr. Jain, Sr. Adv.
Mr. Pratham Kant, Adv.
Mr. Sanjay Singh, Adv.
For Mr. Ugra Shankar Prasad,AOR(NP)

UPON hearing the counsel the Court made the following
O R D E R

The appeal is allowed in terms of the Reportable Judgment,
which is placed on the file.

The special leave petition is disposed of in terms of the order
passed by this Court in Surinder Singh’s case, i.e., Civil Appeal No. 6957
of 2009.

(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant Registrar

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