violation of Article 16(1),16(4)and Article 14 ?
Anil
(Querist) 06 June 2010
This query is : Resolved
Determine the 'Creamy Layer” amongst SEBCs. (Socially and Educationally Backward Classes)
According to the aforesaid G.R. SSP-1194-KH-109-A-of-01-11-1995 dated 01-11-1995 (Gov. of Gujarat)“income criteria” are to be reviewed and modified every three years or less.
Even though there were clear directions for such review, there was only one review after 9 years in 2004 revising the original limit of Rs. 1 lakh to Rs. 2.5 lakh.Since then there is no Change.
NCL/OBC income limit is 4.5 lkh by Government of India,from 2008
NCL/SEBC income limit is 2.5 lkh by Government of Gujarat,from 2004
This is a clear case of violation of Article 16(1),16(4)and
violation of Article 14 in The Constitution Of India 1949 [Constitution]
The protective discrimination in the shape of job,
reservations under 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.
SEBC income limit for Non-creamy layer certificate in different states of india is as per given below.
1)Kerala 4.5lkh from 05/10/2009
2)Maharastra 4.5lkh from 1/04/2009
3)U.P. 5.0lkh from 20/10/2008
4)M.P. 4.5lkh from 02/06/2009
5)Chattisgarh 4.5lkh from 24/06/2009
6)A.P 4.0lkh from 04/04/2006
And so on
So My query is that this is violation of Article 16(1),16(4)and
violation of Article 14 in The Constitution Of India 1949 [Constitution] or not ?
Anil
Raj Kumar Makkad
(Expert) 06 June 2010
Mere non-revision of income limit for a particular criteria cannot be termed as violation of the constitutional provisions you referred. Gujarat Government should also revise its data at least at par with Central Government.
Anil
(Querist) 06 June 2010
Dear Raj Kumar,
Thanks,Please go through this Judgment
Some part of Judgment
http://JUDIS.NIC.IN SUPREME COURT OF INDIA
PETITIONER:
ASHOKA KUMAR THAKUR
Vs.
RESPONDENT:
STATE OF BIHAR AND ORS.
DATE OF JUDGMENT04/09/1995
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 75 1995 SCC (5) 403
JT 1995 (6) 390 1995 SCALE (5)115
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Constitutional validity of the criteria, for
determining the ‘creamy layer’ for the purpose of exclusion
from backward classes, laid-down by the States of Bihar and
Uttar Pradesh, has been challenged in these writ petitions
under Article 32 of the Constitution of India.
A Nine-Judge Bench of this Court in "Mandal case" -
Indra Sawhney vs. Union of India [1992] Supp. (3) SCC 217] -
authoritatively interpreted various aspects of Article 16(4)
of the Constitution of India. While holding that Article
16(4) aims at group backwardness this Court came to the
conclusion that socially advanced members of backward class
- ‘creamy layer’ - have to be excluded from the said
‘class’. It was held that the ‘class’ which remains after
excluding the ‘creamy layer’ would more appropriately serve
the purpose and object of Article 16(4)
The protective discrimination in the shape of job
reservations underthe 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.
B.P. Jeevan Reddy, J. speaking for the Court
enaunciated the concept of ’creamy layer’ in the following
words:
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.
This Court, in ‘Mandal case’ has clearly and
authoritatively laid down that the affluent part of a
backward class called ‘creamy layer’ has to be excluded from
the said class and the benefit of Article 16(4) can only be
given to the "class" which remains after the exclusion of
the ‘creamy layer’. The backward class under Article 16(4)
means the class which has no element of ‘creamy layer’ in
it. It is mandatory under Article 16(4) - as interpreted by
this Court - that the State must identify the ‘creamy layer’
in a backward class and thereafter by excluding the ‘creamylayer’
extent the benefit of reservation to the ‘class’
which remains after such exclusion. This Court has laid
down, clear and easy to follow, guidelines for the
identification of ‘creamy layer’.
The States of Bihar and Uttar Pradesh have acted wholly arbitrary and in utter violation of the law laid down by this Court in ‘Mandal
case’. It is difficult to accept that in India where the
per capita national income is Rs.6929 (1993-94), a person
who is a member of the IAS and a professional who is earning
less than Rs.10 lakhs per annum is socially and
educationally backward. We are of the view that the
criteria laid down by the States of Bihar and Uttar Pradesh
for identifying the ‘creamy layer’ on the face of it is
arbitrary and has to be rejected.
We, therefore, hold that the above quoted criteria, for
identification of ‘creamy-layer’, laid down by the States of
Bihar and Uttar Pradesh is violative of Article 16(4),
wholly arbitrary - violative of Article 14 - and against the
law laid-down by this Court in ‘Mandal case’.
We allow the writ petitions
We further direct that for the academic year 1995-96
the States of Uttar Pradesh and Bihar shall follow the
criteria laid down by the Government of India, reproduced
above, in the memorandum dated September 8. 1993. It will
be open to the two States to lay down fresh criteria for the
subsequent years in accordance with law. No costs
Article 16 in The Constitution Of India 1949 [Constitution]
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination
Article 14 in The Constitution Of India 1949 [Constitution]
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Raj Kumar Makkad
(Expert) 06 June 2010
State has been given supremacy in the aforesaid citation also. Courts have withheld the constitutional right of the State to frame any scheme/law on the subject matter and courts have further held that courts have very limited role in such matters.
Anil
(Querist) 09 June 2010
But According to Article 14 in The Constitution Of India 1949 [Constitution]
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Anil
(Querist) 11 June 2010
As per Clause VI (a) of Creamy layer criteria “Persons having gross annual income of Rs. 4.50 lakh or above (The Income limit has since been raised from Rs. 1 lakh to Rs.2.5 lakhs w.e.f. 09.03.2004 vide DOP2T O.M, No. 36033/3/2004-ESTT(Res) dated 09.03.2004 and subsiquently raised to 4.5 Lacs vide DOPT O.M Dated 14.10.2008.) for a period of three consecutive years or possessing wealth above the exemption limit as prescribed in the Wealth Act for a period of three consecutive years will be treated as creamy layer.
According to my interpretation is,
Here the word “for a period of three consecutive years” is important means that from last 3 financial years if the income of any one financial year is less then Rs. 4.50 lakh (The Income limit has since been raised from Rs. 1 lakh to Rs.2.5 lakhs w.e.f. 09.03.2004 vide DOP2T O.M, No. 36033/3/2004-ESTT(Res) dated 09.03.2004 and subsiquently raised to 4.5 Lacs vide DOPT O.M Dated 14.10.2008.) will not come under creamy layer and get the reservation.
Year Income
2007-2008 2,00,000.00 Rs.
2008-2009 4,60,000.00 Rs.
2009-2010 5,60,000.00 Rs.
Q.1. As per my interpretation a person with annual income ( business
income” )as per above mentioned years for three consecutive years does not come under creamy layer as his income for one of the three consecutive year is less than Rs. 4.5lakh/annum.
Is my interpretation right or wrong ?
