Supreme Court of India
SURINDER SINGHversusPUNJAB STATE ELECTRICITY BOARD, PATIALA AND ORS.
- Citation
- 2014 INSC 681
- Decided
- 25 September 2014
- Disposal
- Appeal(s) allowed
- Bench
- S KHEHAR
Holding
Creamy‑layer status is determined by the parents' income alone; the High Court erred in considering the candidate's own income, and the appointment of the appellant is restored.
Summary
The Punjab State Electricity Board recruited 21 Accounts Officers by direct recruitment, reserving seats for candidates from the backward class. Surinder Singh, a Chartered Accountant, secured 164 marks and was appointed under the backward‑class reservation. Respondent Anil Kumar Uppal challenged the appointment, alleging that Singh belonged to the "creamy layer" and therefore was ineligible. The Punjab and Haryana High Court held that Singh fell in the creamy layer by considering his own income, reading down the Government’s Office Memorandum dated 8 September 1993. The Supreme Court examined the memorandum, subsequent clarifications, and precedents, and held that creamy‑layer status is determined solely by the parents’ income, not the candidate’s own income. Consequently, the High Court’s decision was set aside and Singh’s appointment was restored.
Issues considered
- Whether the income of the individual candidate can be taken into account for determining creamy‑layer status under the Office Memorandum dated 8 September 1993.
- Whether the High Court erred in reading down the memorandum to include the candidate’s own income.
Legislation cited
Subjects
service lawreservationbackward classcreamy layerappointmenteligibilityoffice memorandum 8 September 1993income criteria
Judgment
• (2014] 11 S.C.R. 533
SURINDER SINGH A
v.
PUNJAB STATE ELECTRICITY BOARD, PATIALA AND
ORS.
(Civil Appeal No. 6957 of 2009)
B
SEPTEMBER 25, 2014
[JAGDISH SINGH KHEHAR AND ARLIN MISHRA, JJ.]
Service Law - Appointment - "Backward class" category
- Determination of "backwardness" - Identification of "creamy C
layer" - Policy instructions issued by the State Government
- Appointment of appellant from amongst "backward class"
candidates - Challenged - High Court took into consideration
the income of the appellant himself, to declare that he
belonged to the "creamy layer'. and as such, was dis-entitled D
to be considered as a "backward class" candidate - Validity
-Held: Plain reading of the office memorandum dated
8. 9. 1993 made it clear that it was not the income of the
individual concerned, but that of his parents, that determined
whether he fell within the creamy layer or not - High Court E
erred in reading down the office memorandum dated 8.9.1993
and to include therein the income of the individual concern
while determining whether or not he fell within the "creamy
layer' - Appointment of appellant restored.
F
Allowing the appeal, the Court
HELD:1.1. On the plain reading of the office
memorandum dated 8.9.1993, it is clear that it was not the
income of the individual concerned, but that of his
parents, that would determine whether he would fall G
within the creamy layer or .not. The High Court erred in
reading down the office memorandum dated 8.9.1993 and
to include therein the income of the individual concern
while determining whether or not he fall within the
533 H
A
534 SUPREME COURT REPORTS [2014] 11 S.C.R.
"creamy layer". [Paras 7, 9] [539-A, B; 541-A, B]
•
1.2. It is only the parents income, which has to be
taken into consideration. The individual's income was not
required to be clubbed with the income of his parents,
8 while determining whether or not he was eligible to be
granted a backward class certificate. The determination
to the contrary by the High Court is liable to be set aside.
The appointment of the appellant is restored. [Paras 11,
12 and 13] [543-A, D-E]
C Indra Sawhney vs. Union of India 1992 Supp. (3) SCC
217: 1992 (2) Suppl. SCR 454 Ashok Kumar Thakur vs.
State of Bihar (1995) 5 SCC 403: 1995 (3) Suppl. SCR
269; Ashok Kumar Thakur vs. Union of India (2008) 6 SCC
1 - relied on.
D
Case Law Reference:
1992 (2) Suppl. SCR 454 ·relied on Para 8
1995 (3) Suppl. SCR 269 relied on Para 8
E (2008) 6 sec 1 relied on Para 9
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6957 of 2009.
From the Judgment & Order dated 02.03.2009 of the High
F
Court of Punjab and Haryana at Chandigarh in Civil Writ
Petition No. 7660 of 2004.
WITH
G SLP(C) No. 17161 of 2009.
Neeraj Kr. Jain, R.K. Kapoor, Shiwani Mahipal, Rekha Giri
(for Anis Ahmed Khan), Jayshree Anand (for Anurag Pandey),
Pratham Kant, Sanjay Singh, (for Ugra Shankar Prasad) for the
H appearing parties.
• SURINDER SINGH v. PUNJAB STATE ELECTRICITY 535
BOARD, PATIALA
The Judgment of the Court was delivered by A
J.S. KHEHAR, J. 1. On 16.07.2002, the Punjab State
Electricity Board (hereinafter referred to as the 'Board') took a
decision to fill up 21 posts of Accounts Officer. The above posts
were to be filled up by way of direct recruitment. The appellant B
earned 164 marks in the process of selection. He made the
grade, by way of merit, from amongst "backward class"
candidates. It is therefore, that he came to be appointed as
Accounts Officer, by direct recruitment.
2. Respondent No.4-Anil Kumar Uppal, had also applied C
for appointment by way of direct recruitment, in response to the
same advertisement (in furtherance whereof, the appellant was
selected and appointed). His candidature was, however, not
accepted. It is therefore, that respondent no.4 approached the
Punjab and Haryana High Court at Chandigarh (hereinafter D
referred to as the 'High Court') seeking an appropriate direction
to the Board, requiring it to allow him (respondent no.4) to
participate in the process of selection. By an interim order
passed by the High Court, respondent no.4 was allowed to
participate in the process of selection. E
3. On considering the candidature of respondent no.4, the
Selection Committee awarded him 146 marks. It is therefore
apparent, that in terms of merit, respondent no.4 could not
march over the superior claim of the appellant. This was so F
because, whilst the appellant had been awarded 164 marks in
the process of selection, respondent no.4 had been awarded
only 146 marks.
4. Respondent no.4, in order to claim appointment, chose G
to assail the claim of the appellant by asserting, that the
appellant did not factually belong to the "backward class", and
as such, his merit could not be determined with reference to
the posts reserved for "backward class" candidates. If he could
succeed in establishing the aforesaid position, he would fall in
H
536 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A the zone of selection, being possessed of the next highest
marks (after the appellant) from the category of backward class
candidates. Insofar as the instant aspect of the matter is
concerned, the pointed contention of respondent no.4 was, that
the appellant belonged to the "creamy layer", and as such, he
B was dis-entitled for being considered from amongst "backward
class" candidates.
5. The High Court, while disposing of Writ Petition No.
7660 of 2004, vide the impugned order dated 2.3.2009, arrived
C at the conclusion, that the appellant actually belonged to the
"creamy layer", and as such, was dis-entitled to be considered
as a "backward class" candidate. In arriving at the aforesaid
conclusion, the High Court took into consideration the income
of the appellant himself, to declare that he belonged to the
"creamy layer". The aforesaid determination was rendered by
0
reading down the policy instructions issued by the State
Government, on the basis whereof, the backwardness of a
candidate had to be adjudged. The aforesaid policy instructions
were read down, to include the income of the person
E concerned, along with the income of the parents of the person,
contemplated by the policy instructions.
6. In the present appeal, the appellant seeks to assail the
aforesaid determination rendered by the High Court. It was the
vehement contention of the learned counsel for the appellant,
F that the judgment referred to by the High Court, for arriving at
the conclusion, that the personal income of the concerned
individual had to be taken into consideration, was a misreading
of the judgment rendered by this Court. It was in the aforesaid
background, that we shall endeavour to examine the policy
G instructions regulating the determination of backwardness of
candidates, and the judgments relied upon by the High Court.
7. First and foremost, reference needs to be made to the
office memorandum dated 8.9.1993 issued by the Government
H of India, Ministry of Personnel, Public Grievances & Pension
• SURINDER SINGH v. PUNJAB STATE ELECTRICITY 537
BOARD, PATIALA [JAGDISH SINGH KHEHAR, J.]
(Department of Personnel & Training). It is not a matter of A
dispute between the rival parties, that the aforesaid office
memorandum is applicable to the present controversy. Under
the office memorandum dated 8.9.1993, the claim of the
appellant for grant of a backward class certificate was
determinable under category IV thereof, since it is not a matter B
of dispute that the appellant is a qualified Chartered
Accountant. However, in column 3 to the schedule relating to
category IV, it is mentioned that the criteria specified against
category VI would be applicable to those who fall under
category IV. In the above view of the matter, our interpretation C
on the eligibility of the appellant for being declared as belonging
to the backward class, would be determinable on the basis of
the description relatable to category VI. Category VI and the
depiction to whom the same would be applicable, are being
extracted hereunder: D
SI.No. Description To whom rule of
of category exclusion will apply
1 2 3
E
VI Income/Wealth Test Son(s) and daughter(s) of
(a) persons having gross
annual income of Rs.1 lakh 01
above or possessing wealth F
above the exemption limit as
prescribed in the Wealth Tai
Act for a period of three
consecutive years;
(b) persons in Categories I, II, G
Ill and V-A who are no
disentitled to the benefit o
reservation but have income
from other sources of wealth
H
538 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A wn1ch will bnng them w1tnm the
income/wealth criteria
mentioned in (a) above.
Explanation:
B (i) income from salaries or
agricultural land shall not be
clubbed;
(ii)the income criteria in terms
c of rupee will be modified taking
into account the change in its
value every three years. If the
situation, however, so
demands, the interregnum may
D be less.
Explanation: wherever the
expression 'permanent
incapacitation' occurs in
E this Schedule, it shall mean
incapacitation which results
in putting an officer out of
service.
(emphasis is ours)
F
Having minutely examined category VI, as also the description
contained in the schedule, to whom the same would apply, there
is really no room for any doubt, that in clauses (a) and (b)
thereof, it is the income/wealth of the parents of the individual
G concerned, which is of relevance. The description is clearly
silent about the individual's own income. It is not possible for
us to accept, that the individual's own income could have been
taken into consideration. The above determination of ours, is
with reference to categories IV and VI. Therefore, even with
H reference to category IV, which includes professional's, the
• SURINDER SINGH v. PUNJAB STATE ELECTRICITY 539
BOARD, PATIALA [JAGDISH SINGH KHEHAR, J.)
income of the professional, has not been included. Thus viewed, A
we are satisfied, that on the plain reading of category VI of the
office memorandum dated 8.9.1993, that it was not the income
of the individual concerned, but that of his parents, that would
determine whether he would fall within the creamy layer or not
B
8. The question which still arises is, whether it was open
to the High Court, to include the individual's income in
determining his eligibility for being declared as backward class,
by reading down the policy instructions on the subject Insofar
as the instant aspect of the matter is concerned, there can be C
no doubt, that the issue is determinable with reference to the
decision rendered by this Court in Indra Sawhney vs. Union of
India 1992 Supp. (3) SCC 217. But for the determination of the
present controversy, we need not travel to the decision in Indra
Sawhney's case (supra). It will be sufficient to make a reference
0
,to the decision rendered by this Court in Ashok Kumar Thakur
vs. State of Bihar (1995) 5 SCC 403, wherein this Court, having
. examined the Office Memorandum dated 8.9.1993, approved
the same by observing as under:
"10. We have carefully examined the criteria for E
identifying the "creamy layer" laid down by the
Government of India in the Schedule, quoted above,
and we are of the view that the same is in conformity
with the law laid down by this Court in Mandal case
(Indra Sawhney v. Union of India 1992 Suppl. (3) SCC F
217). We have no hesitation in approving the rule of
exclusion framed by the Government of India in para
2(c) read with the Schedule of the office
memorandum quoted above. Learned counsel for
the petitioners have also vehemently commended G
that the State Governments should follow the
Government of India and lay down similar criteria for
identifying the "creamy layer".
(emphasis is ours) H
A
540 SUPREME COURT REPORTS [2014] 11 S.C.R.
It is apparent from the observations recorded by this Court, as
have been extracted hereinabove, that the Office Memorandum
•
dated 8.9.1993 had been examined by this Court.specifically
with reference to the decision rendered in Indra Sawhney's
case (supra). Having done so, this Court expressly approved
B and confirmed the Schedule to the Office Memorandum dated
8.9.1993.
9. Based on the aforesaid declaration of Jaw, we are of
the view that it was not open to the High Court to evaluate the
C office memorandum dated 8. 9.1993 from any other
parameters. It also needs to be noticed, that the issue which
came up for determination in Ashok Kumar Thakur's case
(supra) came to be re-examined before a Constitution Bench
of this Court in Ashok Kumar Thakur vs. Union of India (2008)
D 6 SCC 1, wherein on the subject of identification of the "creamy
layer'', the Constitution Bench observed as under:
"1-B. IDENTIFICATION OF CREAMY LAYER
415. Income as the criterion for creamy layer
E exclusion is insufficient and runs afoul of Sawhney
(I). (See p.724 at para 792). Identification of the creamy
layer has been and should be .Jett to the Government.
subject to judicial direction. For a valid method of
creamy layer exclusion, the Government may use its
post-Sawhnev ID criteria as a· template. (See OM of
F
8.9.1993, Para 2(c)/Column 3), approved by this Court
in Ashoka Kumar Thakur vs. State of Bihar (1995) 5
SCC 403, para 10. This schedule is a comprehensive
attempt to exclude the creamy layer in which income,
government posts, occupation and landholdings are
G
taken into account."
(emphasis is ours)
Here again, this Court expressly approved the office
H memorandum dated 8.9.1993. In view of the decisions
• SURINDER SINGH v. PUNJAB STATE ELECTRICITY 541
BOARD, PATIALA [JAGDISH SINGH KHEHAR, J.]
rendered by this Court in both Ashok Kumar Thakur's cases A
(supra), we are of the view that the High Court clearly erred in
reading down the office memorandum dated 8.9.1993 and to
include therein the income of the individual concern while
determining whether or not he fall within the "creamy layer''.
B
10. Despite the declaration of law in the judgments,
referred to hereinabove, it is also necessary to take into
consideration the clarification issued by the Government of
India, Ministry of Personnel, P.G. and Pensions (Department
of Personnal and Training) dated 21.11.2002. The aforesaid C
clarification was with reference to the office memorandum
dated 8.9.1993. Relevant extract of the clarificatory letter dated
21.11.2002 is being reproduced below:
"I am directed to refer to your letter No.2/25/2001 RC-
1/670 dated 17-10-2002 on the above noted subject D
and say that determination of creamy layer for an
CBC candidate is done with reference to the income
of parents as per instructions contained in DOPT's
O.M. No.36012/22/93-Estt(res) dated 8.9.93."
E
(emphasis is ours)
Based on the aforesaid conclusion, there is really no room for
any doubt, that the exposition with reference to category VI in
the office memorandum dated 8.9.1993 related only to the
income of the parents of the individual concerned. And that, the F
income of the individual concerned was not to be taken into
consideration.
11. The above issue came to be examined yet again by
the Government of India, Ministry of Personnel, Public G
Grievances & Pensions (Department of Personnel and
Training) through its memorandum dated 14.10.;2004. In the
above memorandum, a large number of queries were clarified.
Queries at serial nos.(vi) and (vii) of paragraph 4 are relevant
H
542 SUPREME COURT REPORTS [2014] 11 S.CR. •
A to the present controversy, and are accordingly reproduced
hereunder:
"4. Following questions have been raised from time
to time about the application of the above provisions
B to determine creamy layer.
(vi) Will a candidate who himself is a directly recruited
Class I/Group A Officer or a directly recruited Class
II/Group B officer who got in'to Class I/Group A at the
age of 40 or earlier be treated to be falling in creamy
c layer on the basis of his seiyice status?
(vii) will a candidate who has gross annual income
of Rs.2.5 lakh or above or possesses wealth above
the Exemption limit as prescribed in the Wealth Tax
D Act for a period of three consecutive years be treated
to fall in creamy layer?"
The aforesaid queries came to be answered in paragraph
8 by observing as under:
E "8. In regard to clauses (vi), (vii) and (viii) of para 4, i!
is clarified that the creamy layer status of a candidate
is determined on the basis of the status of his parents
and not on the basis of his own status or income or
on the basis of status or income of his/her spouse.
F Therefore, while determining the creamy layer status
of a person the status or the income of the candidate
himself or of his/her spouse shall not be taken into
account."
G (emphasis is ours)
In view of the above, there is no room for any further
consideration, whether or not the individual's incorne is tci be
taken into consideration, while computing the total income
relevant to determine whether an individual belongs to the
H
• SURINDER SINGH v. PUNJAB STATE ELECTRICITY 543
BOARD, PATIALA [JAGDISH SINGH KHEHAR, J.)
"creamy layer". The above clarification reveals, that it is only the A
parents income, which has to be taken into consideration.
12. While referring to the Clarification/Circular dated
14.10.2007 and 14.10.2004 respectively, we have extracted
hereinabove the clear view of the Government of India. It would
B
also be necessary for us to notice, that the above determination
of the Government of India, was adopted by the State of
Punjab, as is apparent from the letter issued by the Government
of Punjab, Welfare Department (Reservation Cell) dated
14.10.2007, whereby the letter dated 17.08.2005 and the
memorandum dated 14.10.2004 were circulated by the State C
Government to all its Deputy Commissioners. It is also not a
matter of dispute, that the aforesaid circulars were expressly
adopted by the Punjab State Electricity Board. Thus viewed,
we are satisfied that the individual's income was not required
to be clubbed with the income of his parents, while determining D
whether or not he was eligible to be granted a backward class
certificate. The determination to the contrary by the High Court
is liable to be set aside. The same is accordingly hereby set
aside.
E
13. The instant appeal is accordingly allowed. While
allowing the instant appeal, we restore the appointment of the
appellant Surinder Singh to the post of Accounts Officer.
Special Leave Petition(C) No.17161 of 2009
F
The controversy in the instant special leave petition is
identical to the one adjudicated upon by this Court in the case
of Surinder Singh vs. Punjab State Electricity Board, Patiala
and others (Civil Appeal No. 6957 of 2009, decided on
25.09.2014).
G
In the above view of the matter, the instant special leave
petition is also disposed of in terms of the order passed by this
Court in Surinder Singh's ca.se(supi:a).
Bibhuti Bhushan Bose Appeal allowed.
H
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