New Delhi: The Haryana government’s decision to exclude an alleged ‘creamy layer’ while providing for reservation under the Other Backward Classes category has come in for severe criticism from opposition leaders and legal experts who feel that the move flouts Supreme Court guidelines and follows an agenda of destroying the quota policy.The Haryana government has announced that it will revert to its 1995 notification of excluding children of parents holding constitutional posts and class-1 jobs (i.e. who are direct recruits) from reservations in the OBC category.The new notification has come after the Supreme Court in August 2021 quashed the 2016 Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act which gave quota preference within the OBC to persons with an annual income of up to Rs 6 lakh.The bench of Justices L. Nageswara Rao and Aniruddha Bose had held that that states cannot make annual income the sole yardstick to determine this allegedly “creamy layer”’ within a backward class and exclude them from benefits of reservation. It had stated that apart from economic criteria, social, educational and other factors should also be taken into account before defining a “creamy layer” among the backward classes.The court had also ordered the Haryana government to come out with a new notification to determine “creamy layer” among OBCs within three months.Importance of Indra Sawhney judgmentIn its order, the bench had stressed that the SC’s judgment in the Indra Sawhney case (also known as the ‘Mandal Commission’ case) in 1992 clearly laid down that social, economic and other factors have to be taken into account for the purpose of determining the “creamy layer” within a backward class and then excluding it from quota benefits.“Strangely, by the notification dated August 17, 2016, the identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. In clear terms, this court held in Indra Sawhney (case) that the basis of exclusion of ‘creamy layer’ cannot be merely economic,” the court held.Also read: ‘Creamy Layer’ Classification Can’t Be Based Only on Economic Criterion: Supreme CourtThe Supreme Court also held that Haryana government was wrong to club income from salaries and agricultural land in determining the gross annual income for the purpose of defining the creamy layer. It said such a practice was at variance with the 1993 memorandum issued by the Union government on revision of income criteria to exclude socially advanced sections or creamy layer from the purview of reservation for OBCs.It was also pointed out that while the current annual income limit for “creamy layer” under the Union government rules was Rs 8 lakh, the Haryana government had reduced it to Rs 6 lakh.The petitioner, Pichra Warg Kalyan Mahasabha, had also charged that the 2016 notification was discriminatory as it created a sub-classification within the same class. That notification had provided that children of people having gross annual income up to Rs 3 lakh shall first get the benefit of reservation in services and admission in educational institutions and then the remaining quota shall go to backward classes citizens who earn between Rs 3 lakh and Rs 6 lakh per annum.The Haryana government had argued that the sub-classification was done to provide the maximum benefits to people with lower income.What the new notification saysFollowing the SC ruling, the Haryana government came out with a new notification. While excluding children of parents holding constitutional posts and Class-1 jobs (direct recruits) from reservation under the OBC category, it had categorises constitutional posts as those of President of India, Vice-President of India, Judges of the Supreme Court and High Courts, chairman and members of the Union Public Service Commission, state public services commission, Chief Election Commissioner, and Comptroller and Auditor General of India.The new notification puts children of parents, both of whom are Class-1 officers, or parents, either of whom is a Class-1 officer, in the exclusion category. It adds that a woman belonging to the OBC category who has been married to a Class-1 officer and is applying for a job will also be excluded.Further, children of parents, both of whom are Class-II officers (direct recruits), are excluded, as are those with parents of whom only the husband is a Class-II officer who he gets into Class-I at the age of 40 or earlier.Also in the exclusion list are the children of parents either or both of whom are in the rank of Colonel or above in the Army or Air Force or Navy and paramilitary forces.Apart from this, families owning more than permissible land under the Ceiling Act of Haryana have also been put in the creamy layer.Who all are not in exclusion listThe notification lays down that creamy layer will not apply to the children of parents, both of whom are Class-II officers and one of them has died or has suffered permanent incapacitation, and also for children of parents who are Class II officers and both of have died or suffered permanent incapacitation.Also read: Creamy Layer Judgment Ignores the Reality of Workplace Caste DiscriminationIt adds that this rule of exclusion will also apply to the Class-I and Class-II officers in public sector undertakings.Opposition slams new notification as anti-quotaThe new notification has been questioned by the opposition on grounds of both legality and intent. Haryana Congress president Kumari Selja said the notification was against the law and termed the changes an “attempt to re-publish the notifications cancelled by the Supreme Court”. She also claimed that the new notification only displayed the “anti-reservation” mindset of the BJP and the Rashtriya Swayamsevak Sangh.Selja charged that it would deprive the children of Group ‘D’ government employees, farmers and skilled workers from reservation benefits as it has fixed the annual income limit from all sources at Rs 6 lakh. She also questioned the difference in income criteria adopted by the Union and Haryana government.She said the new notification would also deprive children of existing A and B category officers from the right of reservation, while as the Union government notification said that only directly-appointed A-category officers or officers promoted before the age of 40 years are considered to be in the creamy layer.New notification in violation of SC’s 1992 rulingMeanwhile, legal experts have also claimed that the new notification flouts the 1992 Supreme Court ruling in which it had denied OBC reservation benefits to a “creamy layer” and said that income from salary and agriculture cannot be considered for creamy layer identification.It was following that apex court ruling that the Centre had issued an order in 1993, including those holding constitutional or Class A posts, and those promoted to Class A posts before turning 40, in the creamy layer.A Supreme Court advocate, Shashank Ratnoo, was quoted by The Telegraph as saying, that the new notification would be “open to contempt petitions” since “(virtually) the same notification uprooted by the Supreme Court has been restored now. Inclusion of salary under the annual income is against the specific direction of the apex court in Indra Sawhney vs Union of India, 1992”.
