SC sets aside Haryana order creating a sub-category of creamy layer

Satya Prakash

Tribune News Service

New Delhi, August 24

The Supreme Court on Tuesday struck down Haryana government’s August 17, 2016 notification that gave preference to those having income up to Rs 3 lakh within the non-creamy layer group of Backward Classes in government jobs and admission to educational institutions.

A Bench led by Justice LN Rao, however, asked state government not to disturb admissions to educational institutions and appointments in state services already done on the basis of the said notification dated August 17, 2016.

“The notification dated 17.08.2016 is in flagrant violation of the directions issued by this Court in Indra Sawhney-I and is at variance with the memorandum dated 08.09.1993 issued by the Union of India,” the Bench said while quashing the notification.

“As we have struck down the notification dated August 17, 2016 in toto, there is no need for adjudicating the validity of the notification dated August 28, 2018, which is solely dependent on the notification dated August 17, 2016,” it noted.

The order came on petitions seeking quashing of the two notifications as “arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India.”

The Haryana Government had issued a notification on August 17, 2016 specifying the criteria for exclusion of ‘creamy layer’ within the backward classes. As per the said notification, children of persons having gross annual income up to Rs 3 lakh shall first of all get the benefit of reservation in services and admission in educational institutions.

The left-out quota shall go to that class of backward classes of citizens who earn more than Rs 3 lakh but up to Rs 6 lakh per annum. The sections of backward classes earning above Rs 6 lakh per annum shall be considered as ‘creamy layer’ under Section 5 of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016.

The top court, however, said, “The criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by the Government of Haryana while issuing the notification dated 17.08.2016. While issuing the notification dated 07.06.1995, the State Government had followed the criteria laid out in the memorandum issued by the Union of India on 08.09.1993, which was in tune with the directions given by this Court in Indra Sawhney-I.”

It said, “In spite of Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine ‘creamy layer’ from backward classes solely on the basis of economic criterion and has committed a grave error in doing so.

“On this ground alone, the notification dated 17.08.2016 requires to be set aside. Therefore, we quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of three months from today after taking into account the principles laid down by this Court in Indra Sawhney-I and the criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’,” it said.