In the case of Ashoka Kumar Thakur Vs. State of Bihar and others, , the exclusion of creamy layer from the Other Backward Citizens was again considered by the Apex Court in furtherance of its earlier decision in Indra Sawhney in which case there was agreement amongst eight out of nine Judges. It held that the occupants of the posts like IAS, IPS and Officers of All India Services rise quite high socially and such persons could no longer be socially disadvantaged. Their children get full opportunities to realize their potential and are in no way handicapped in the social life. Their income is also such that they are above wants and therefore, it was but logical that the children of such socially and economically advanced persons are not given the benefits of reservation. The Supreme Court while considering the validity of Office Memorandum dated 8-9-1993 in Ashok Kumar Thakur’s case (supra), held that the children of the following categories are excluded from reservation as creamy layer.
1. The son or daughter of the President of India, the Vice-President of India, the Chief justice and Judges of the Supreme Court of India, the Chief Justice and Judges of the High Courts, the Chairman and Members of the Union Public Service Commission and the Chief Election Commissioner.
2. The son or daughter of such officers who have been directly recruited in Class I Services of the Central Government or a State Government or an Undertaking or an institution fully or partially financed by them; and
(a) Whose income from salary is rupees ten thousand or more per mensem, and
(b) Whose wife or husband, as the case may be, is at least a graduate, and
(c) Who is or his wife or her husband, as the case may be, owns a house in an urban area, and
(d) Whose mother or father has also been directly recruited to Class I services.
Explanation — Class I means the pay bracket fixed by the State Government from time to time for Class I.
3. The son or daughter of such person engaged as doctor, advocate, chartered accountant, tax consultant, financial consultant, management consultant, architect or other professionals, and
(a) Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and
(b) Whose wife or husband, as the case may be, is at least a graduate; and
(c) Whose family owns immovable property at least of rupees twenty lakhs.
4. The son or daughter of such person engaged in trade or commerce, and-
(a) Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and
(b) Whose wife or husband, as the case may be, is at least a graduate; and
(c) Whose family owns immovable property at least of twenty lakhs.
5. The son or daughter of such industrialist –
(a) Whose level of investment in running unit or units is more than rupees ten crores; and
(b) Such unit or units are engaged in commercial production for at least five years and (c) His wife or husband, as the case may be, is at least a graduate.
6. The son or daughter of such agricultural land-holder –
(a) Whose average income from all sources other than agriculture for three consecutive financial years is not less than rupees ten lakhs per annum; and
(b) Whose wife or husband, as the case may be, is at least a graduate; and
(c) Whose or his wife or her husband as the case may be, owns house at least of rupees twenty lakhs in an urban area.
7. The son or daughter of person, other than the persons specified in serial 1 to 6 of this Schedule :–
(a) Whose main source of income is other than animal husbandry, fisheries, poultry, weaving, craftsmanship, handicraft and artisanship; and
(b) Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and
(c) Whose wife or husband, as the case may be, is at least a graduate; and
(d) Whose family owns immovable property at least of rupees twenty lakhs.”
ย On considering the law laid down in Mandal’s case the challenge to the Office Memorandum dated 8-9-1993 was negatived by observing that the criteria fixed in the said Memorandum was in conformity with the law laid down therein.
ย The same issue again came up before the three-Judges Bench of the Apex Court in Indra Sawheny’s case (II) AIR1999 SCW 4661 and the view taken in Ashok Kumar Thakur’s case was restated with approval.
What is true in respect of Class II Officers (direct recruits) of the State Government employees is also true in respect of the promotees of the said posts. Similarly, with the implementation of the recommendations of Fifth Pay Commission even the salary of School/College teachers have moved upwards considerably and what is applicable to the University teachers is also squarely applicable to these categories also. A college lecturer as at present draws a monthly salary of Rs. 20,000 to Rs. 25,000/-. We have colleges not only at district places but at taluka places and also in some villages. Even the monthly salary of Assistant Teachers in the schools has crossed Rs. 10,000/-. These are undoubtedly creamy layers. There may be many more similar posts/occupations in the private sector or those who are self-employed as professionals in the trade, business or industry. The cases of Advocates, doctors, Chartered Accountants, Architects, Interior Decorators and the likes in the professional category may also be covered. There is no reason as to why their children should not be excluded from the benefits of the reservation as these individuals even if they originally belong to the Other Backward Classes have achieved certain social and financial level and therefore, they have become forwards amongst the backward class. They are on par with any other forward community and hence, their children must come out of the reservation. This reservation cannot be limited only for educational purposes. It ought to be made applicable for appointments as well as reservation to the elected offices for which there is reservation. It is, therefore, imperative for the State Government as well as the State Election Commission to follow the law laid down by the Supreme Court in Indra Sawhney’s case. Ashok Kumar Thakur’s case and Indra Sawhney’s case (II) (supra). We expect the State Government and the OBC Commission to take appropriate steps if already not taken in that regard so as to exclude them from the benefit of reservation as they belong to the category of creamy layer and lay down suitable guidelines in keeping with the enunciations to identify creamy layer more realistically.
