The Supreme Court has set aside the notification specifying the criteria for exclusion of ‘Creamy Layer’ within the backward classes issued by the State of Haryana with a liberty to issue a fresh notification within a period of 3 months declaring it in flagrant violation of the directions issued by the Apex Court in Indra Sawhney-I.
A two-judge bench of Justices L. Nageswara Rao and Aniruddha Bose has held the impugned 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.
It 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.”
“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,” the Court said.
“Therefore, we quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of 3 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 held.
However the Court said, “Admissions to educational institutions and appointment to state services on the basis of the notifications dated 17.08.2016 and 28.08.2018 shall not be disturbed.”
The decision came on plea filed by “Pichra Warg Kalyan Mahasabha Haryana (Regd.) & Anr.”which has sought quashing of the notifications dated 17.08.2016 and 28.08.2018 issued by the First Respondent (The State of Haryana) as arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India.
The plea also sought directions for a fresh survey and verification of data for identification and specification of ‘creamy layer’ as per the provisions of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016. The Petitioners have also sought for a direction to the Respondents to provide reservation to backward classes in Haryana under the 2016 Act by considering the existing defined criteria of ‘creamy layer’ by the National Commission for Backward Classes or the criteria used by the State of Haryana prior to the 2016 Act.
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The Supreme Court has noted that, “the implementation of the judgement of this Court in Indra Sawhney-I by identification of ‘creamy layer’ was not done promptly by certain states. The State of Kerala neither appointed a Commission nor implemented the directions in the judgement for more than three years, following which contempt proceedings had to be initiated against the State. A High-Level Committee was directed to be constituted by this Court in the State of Kerala for identifying the ‘creamy layer’ among the designated backward classes of the State. This Court in Indra Sawhney v. Union of India 2 (hereinafter referred to as, ‘Indra Sawhney-II’) examined certain questions relating to the recommendations made by the said High-Level Committee. After thoroughly examining the factors which were given emphasis in the various opinions rendered in Indra Sawhney-I for determining ‘creamy layer’ amongst the backward classes, this Court held that persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status and therefore, were not entitled to be treated as backward. Such persons were to be treated as ‘creamy layer’ without any further inquiry. Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, should be treated as outside the backward class. Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation. The above-mentioned categories were necessarily to be excluded from backward classes. This Court in Indra Sawhney-II held that the exclusion of the above-mentioned categories is a ‘judicial declaration’ made in Indra Sawhney-I.”