KULDIP SINGH - (1.) CONSTITUTIONAL validity of the criteria, for determining the 'creamy layer' for the purpose of exclusion from backward classes, laid-down by the States of Bihar and Uttar Pradesh, has been challenged in these writ petitions under Article 32 of the Constitution of India.
(2.) A Nine-Judge Bench of this Court in " Mandal case" Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : (1992 AIR SCW 3682) authoritatively interpreted various aspects of Article 16(4) of the Constitution of India. While holding that Article 16(4) aims at group backwardness this Court came to the conclusion that socially advanced members of a backward class - 'creamy layer' - have to be excluded from the said 'class'. It was held that the 'class' which remains after excluding the 'creamy layer' would more appropriately serve the purpose and object of Article 16(4). The protective discrimination in the shape of job reservations under Article 16(4) has to be programmed in such a manner that the most deserving section of the backward class is benefitted. Means test by which 'creamy layer' is excluded, ensures such a result. The process of identifying backward class cannot be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the memebrs of the class may have individually crossed the barriers of backwardness but while identifying the class they may have come within the collectivity. It is often seen that comparatively rich persons in the backward class are able to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practised on them by the higher class is in turn practised by the affluent members of the backward class on the poorer members of the same class. The benefits of social privileges like job reservations are mostly chewed up by the richer or more affluent sections of the backward class and the poorer and the really backward sections among them keep on getting poorer and more backward. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniform. The jobs are so very few in comparison to the population of the backward classes that it is difficult to give them adequate representation in the State services. It is, therefore. necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job reservations is necessary to benefit the needy sections of the class. The means-test is, therefore, imperative to skim-off the affluent section of the backward class. We may refer to the opinions given by the learned Judges in 'Mandal case' (1992 AIR SCW 3682) on the question of exclusion of the 'creamy layer' from the backward class.
(3.) P.B. Sawant, J. spoke about the 'creamy; ayer' in the following words : "The correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicon of backwardness they should be taken out from the backward classes and should be made disentitled to the provisions meant for the said classes. It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others? Is it the capacity to compete for Class IV or Class III or higher class posts? A Class IV employee's children may develop capacity to compete for Class III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class IV posts. It cannot, however,be argued that on that account, he has reached the "creamy" level. If the adequacy of representation in the services as discussed earlier, is to be evaluated in terms of qualitative and not mere quantitative representation, which means representation in the higher rungs of administration as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level posts also . Such capacity will be acquired only when the backward sections reach those levels or at least, near those levels." R. M. Sahai, J. held that the exclusion of 'creamy layer' is a social purpose. Any legislation or executive action to remove such presons individually or collectively cannot be constitutionally invalid. The learned Judge elaborated his conclusions as under :- "More backward and backward is an illusion. No constitutional exercise is called for it. What is requried is practical approach to the problem. The collectivity or the group may be backward class but the individuals from the class may have achieved the social status or economic affluence, disentitle them from claiming reservation, therefore, while reserving posts for backward class the department should make a condition precedent that very candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart, provision should made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolistation of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated." ;