L.NAGESWARA RAO, J. - (1.) Leave granted in SLP (C) No.21893 of 2018 and SLP (C) Nos.32168-32169 of 2018. 1.1 Writ Petition (C) No. 60 of 2019 has been filed under Article 32 of the Constitution of India for quashing notifications dated 17.08.2016 and 28.08.2018 issued by the First Respondent as arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India. A further direction is sought 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 (hereinafter referred to as, the '2016 Act'). 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.
(2.) Reservation in backward classes as recommended by the Mandal Commission was scrutinised by this Court in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 (hereinafter referred to as, 'Indra Sawhney-I'). In the said judgement, this Court recommended constitution of a permanent body at the Central level and at the level of the States to deal with the inclusion, under-inclusion and over-inclusion of groups in the lists of other backward classes of citizens. This Court directed State Governments to identify 'creamy layer' amongst the backward classes and exclude them from the purview of reservation. Pursuant to the directions issued in Indra Sawhney-I, the Haryana Second Backward Classes Commission was constituted on 12.10.1993. The said Commission was assigned the function of specifying the basis for excluding socially advanced persons / creamy layer from the backward classes. On 16.05.1995, the Haryana Second Backward Classes Commission submitted its report recommending the criteria for excluding socially advanced persons/sections (creamy layer) from the backward classes. The State Government accepted the recommendations of the Commission and decided that the benefit of reservation shall not extend to persons/sections mentioned in Annexure 'A' to the circular dated 07.06.1995 issued by the Commissioner and Secretary to Government of Haryana, Welfare and Scheduled Castes and Backward Classes Department. The said Annexure 'A' included the children of those who held Constitutional Posts, who were Class I Officers of the All India Central and State Services (Direct Recruits), Class II Officers of the Central and State Services (Direct Recruits), employees in Public Sector Undertakings etc., and personnel belonging to Armed Forces including Para Military Forces (excluding persons holding civil posts). Children of persons belonging to a family which owned more than the permissible land under the statute of Haryana pertaining to ceiling on land holdings were also covered under Annexure 'A'. Another category specified in Annexure 'A' was with respect to the children of persons with gross annual income of Rs. 1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act, 1957 for a period of three consecutive years. Lastly, Annexure 'A' brought within its fold children of persons of all other listed categories who were not disentitled to the benefit of reservation but had income from other sources of wealth bringing them within the aforementioned income / wealth criteria.
(3.) On 31.08.2010, the Financial Commissioner and Principal Secretary to Government of Haryana, Welfare of Scheduled Castes and Backward Classes Department informed the relevant authorities that the State Government had decided to raise income limit to Rs. 4.5 lakh for determining 'creamy layer' amongst the backward classes under the income / wealth criteria. Later, the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 was enacted to provide for reservation in services and admission in educational institutions to the persons belonging to backward classes in the State of Haryana. Section 5 of the 2016 Act provides that no persons belonging to 'creamy layer' amongst the backward classes shall be considered for admission in educational institutions against the seats reserved for backward classes. They shall also not be entitled to claim reservation for appointment in services under the State against posts reserved for backward classes. Section 5(2) of the Act postulates that the Government shall, by notification, after taking into consideration social, economic and such other factors, as deemed appropriate, specify the criteria for exclusion and identification of persons belonging to the backward classes as 'creamy layer'.;