DATE OF JUDGEMENT:
24TH August 2021
Justice L. Nageswara Rao
Justice Aniruddha Bose
Petitioners – Pichara Warg Kalyan Mahasabha Haryana (Regd) & Anr.
Respondent-The State of Haryana & Anr.
The Supreme Court held that the basis of exclusion of ‘creamy layer' cannot be merely economic.
- The petition challenged two notifications issued on August 17th, 2016, and August 28th, 2018 by the Haryana government sub-classifying backward classes solely on an economic basis while fixing the criteria for creamy layer.
- As per the 17.08.2016 notifications issued under the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act of 2016, children of persons having “gross annual income” of up to ₹3 lakh annually would get the benefit of reservation in services and admission in educational institutions. The remaining quota would go to those from backward families, which earn between ₹ 3 lakh and ₹ 6 lakh per annum.
- The sections earning over ₹ 6 lakh annually were considered as ‘creamy layer’ under Section 5 of the 2016 Act.
- The Punjab and Haryana High Court, while considering the petition challenging this notification, under the notification issued on August 17th, 2016 making sub-classification within non-creamy layer segment as annual income below 3 lakhs and annual income within Rs.3-6 lakhs, as unconstitutional.
- But in the notification concerned dated 28.08.2018, the High Court held that the State Gov. had jurisdiction under the 2016 Act to consider the gross annual income from all sources for determining the “creamy layer”. The High Court also held that both the notifications were in the larger interests of those backward classes who require the benefit of reservation. Therefore, the High Court dismissed the writ petition.
- An organization named “Pichra Warg Kalyan Mahasabha Haryana” approached the Apex Court challenging this notification. They contended that according to the Act, the social, economic, and other factors are to be taken into account for specifying the criteria for exclusion and identification of persons belonging to the backward classes as “Creamy layer”. Since the same has not been done, the notification is invalid.
- Section 5(2) of the (Reservation in Services and Admission in Educational Institutions) Act of 2016 :
It provides that social advancement, higher employment in government services, etc, played an equal role in deciding whether such a person belonged to the creamy layer and could be denied quota benefits.
- Whether the notification issued by the State Gov. of Haryana on the sub-classifying of backward classes solely on an economic basis is a violation of guidelines issued by Indira Sawhney’s case?
- Firstly, the Apex Court said that Section 5(2) of the 2016 Act provides social advancement, higher employment in government services, etc, which played an equal role in deciding whether such a person belonged to the creamy layer and could be denied quota benefits.
- In this case, the Court was concerned with the validity of the notifications issued by the Government of Haryana. The notification dated 17.08.2016 was in flagrant violation of the directions issued by the Court in the Indira Sawhney vs. Union of India (2000) 1 SCC 168 and variance with the memorandum dated 08.09.1993 issued by the Union of India.
- Further, the criteria mentioned for identifying such persons who are socially advanced and have not been taken into account by the Government of Haryana while issuing the notification dated 17.08.2016.
- Despite Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of ‘creamy layer to be based on social, economic and other relevant factors, the State of Haryana has sought to determine 'creamy layer’ from backward classes solely based on economic criterion and in the opinion of the court, the State has committed a grave error.
- Therefore, on this ground alone, the Apex Court set aside the notification dated 17.08.2016 and quashed both the notifications issued by the State Govt.
- Furthermore, the Court issued guidelines to issue a fresh notification within a period of 3 months from the date of the order passed after taking into account the principles laid down in Indira Sawhney’s case and the criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’.
The bench had struck down the notification dated 17.08.2016, and held that there is no need for adjudicating the validity of the notification dated 28.08.2018, which is solely dependent on the notification dated 17.08.2016. It was also declared, however, that it does not disturb admissions to educational institutions and appointments to State Govt. services made based on the two notifications.
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