The Supreme Court on Thursday reserved its order on the Centre’s plea seeking prospective application of its March 11 judgment that held other backward classes (OBC) candidates cannot be excluded from reservation benefits solely on the basis of their parents’ salary income.
Stating that the judgment’s operation to all appointments and admissions made in the past will result in a “complete administrative chaos” the Centre urged the court to make the decision to apply prospectively and requested for a two-year period to work out equivalent posts similar to Group A and B officers in the government for identifying creamy layer among persons employed with public sector undertakings (PSU) and private employment.
A bench of justices PS Narasimha and R Mahadevan told the Centre that its judgment gave them six months time to implement the judgment. Yet, their application seeking modification came to be filed in the fag end of August as it questioned what the Centre did during the past few months.
The Centre led by solicitor general Tushar Mehta and additional solicitor general (ASG) Aishwarya Bhati said that the application does not question the judgment. “The Union government is only praying for a limited deferral of the operationalisation of the law laid down by this court for a period of two years so that the competing rights can be adjusted consistent with the administrative contingencies and an effective equivalence exercise is carried out.”
{{/usCountry}}The Centre led by solicitor general Tushar Mehta and additional solicitor general (ASG) Aishwarya Bhati said that the application does not question the judgment. “The Union government is only praying for a limited deferral of the operationalisation of the law laid down by this court for a period of two years so that the competing rights can be adjusted consistent with the administrative contingencies and an effective equivalence exercise is carried out.”
{{/usCountry}}It further said, “The application of the present judgment to past and ongoing recruitments will gravely prejudice the competing rights of persons who were not even a party to the present litigation and will result in reopening of seniority, cadre allocation of appointees and candidates and result in complete administrative chaos.”
Further, Bhati pointed out that the Civil Service Examination recruitment rules for the past year and this year have already been issued and some candidates are citing this judgment to seek enhanced allocation opportunities based on the benefits under the March 11 judgment.
By virtue of this judgment getting implemented, she said that some candidates whose parents are earning even more than ₹1 crore annually would be benefitted and considered as OBC non creamy layer category
The court judgment came to be passed in a set of appeals filed by the Centre against orders passed by the Madras high court. In one such case, the high court permitted an OBC candidate to be treated as a non-creamy layer candidate which furthered his career prospects. He was earlier recommended for Indian Police Service by the UPSC but under OBC reservation, he became entitled for allocation under the Indian Foreign Service.
The top court approved the high court order and discarded the Centre’s objection that his father worked with a multinational and having a high income, he would come under creamy layer. Similarly, the court permitted another candidate to obtain benefit under the Civil Services after he was initially refused OBC reservation owing to his father’s PSU employment which fetched higher income. Both the candidates argued that their parents were excluded on income criteria while for government servants, creamy layer classification was based on their parents’ posts by which Group A or B, C or D officers stood excluded as creamy layer. They argued that similar “equalisation” based on posts should apply to OBC parents working in PSUs and private employment.
The judgment said, “Treating the children of those employed in PSUs or private employment, etc., as being excluded from the benefit of reservation only on the basis of their income derived from salaries, and without reference to their posts (whether Group A or B, or Group C or D) would certainly lead to hostile discrimination between parties who are similarly placed and would amount to equals being treated unequally.”
The creamy layer notification was issued in 1993 following the landmark Indra Sawhney judgment of 1992 which allowed 27% reservation for OBCs subject to exclusion of creamy layer. The 1993 order identified five occupational categories as creamy layer and a sixth category based on income/wealth test.
Later in 2004, the Centre issued a clarificatory order which explained that income from salaries and income from other sources (excluding salaries and agricultural land) are to be assessed separately, and exclusion would follow only if either component exceeds the prescribed limit for three consecutive years.
The March judgment held that the evolution of the non-creamy layer principle demonstrates that both the 1993 office memorandum and 2004 letter preserves the “primacy of status- based exclusion” and confines economic exclusion to those falling under the sixth category. “Salary income cannot be mechanically aggregated in a manner that defeats the constitutional objective articulated in Indra Sawhney,” the court said while justifying its conclusion.
The Centre’s application was opposed by those who benefited from the March judgment. Senior advocates Basav Prabhu Patil, Sanjay Hedge, P Wilson and advocate Prateek Chadha said that the application of the Centre was in the nature of review and should not be entertained.
Early this month, the court had refused to stay its judgment while issuing notice on Centre’s plea. It said that a decision will be taken after hearing both sides.