SUNITA AGARWAL,J. - (1.) HEARD Sri V.K. Singh, learned counsel for the petitioner, learned Standing Counsel and Sri Kripa Shankar Singh, learned counsel appearing for respondent no. 3. Present writ petition is directed against the judgment and order dated 26.2.2004 passed by the Central Administrative Tribunal, Allahabad in Original Application No. 1201 of 1996 whereby the order of cancellation of selection of respondent no. 3 was quashed.
(2.) BRIEF facts giving rise to the present writ petition are that the applicant i.e. respondent no. 3 in pursuance of the advertisement issued in the month of June, 1994, applied for the post of Scientist-I in various discipline including Biotechnology(Animal Science). The respondent no. 3 applied under OBC category and submitted a certificate of the Tehsildar dated 15.3.1996 which certifies that respondent no.3 is wife of Ajai Kumar who belongs to OBC and further that he/she does not belong to creamy layer as mentioned in the Column 3 of the Schedule appended to the Office Memorandum dated 8.9.1993. The written test was held in October, 1994. After the interview the respondent no.3 was selected and a letter of appointment dated 29th September, 1995 was issued by the petitioner. After appointment of respondent no.3, the petitioner came to know that she being daughter of Dr. Shanker Lal who is a class I officer is covered under the rule of exclusion (Column 3 of the Schedule appended to the Office Memorandum dated 8.9.1993) and she could not have been selected giving benefit of OBC category. A show cause notice was issued to which the respondent no. 3 submitted her reply and stated that when she applied and was selected for the post, she was married and her husband who was working as Engineer (Marketing), Rotomac Industries, Private Limited, Kanpur did not come under 'creamy layer'. The caste certificate given by the Tehsildar is based on her caste and of her husband who had no linkage with her father. She further submitted that as her husband does not hold a class I post and after marriage she is no more dependent on her parents, therefore, she is not included in the category of 'creamy layer' under OBC category under Column 3 of the Office Memorandum dated 8.9.1993. Upon consideration of the reply submitted by the respondent No.3, an order dated 4.10.2006 was passed cancelling the appointment of the respondent No.3 that she being the daughter of a class I officer is not entitled for the benefit of reservation in service under OBC category in view of Column 3 of the Office Memorandum dated 8.9.1993. The respondent no. 3 filed Original Application no. 1201 of 1996 challenging the order dated 4.10.2006 cancelling her appointment. In the application same stand was taken by the respondent No. 3 The Tribunal allowed the application and quashed the order dated 4.10.2006. Challenging the order passed by the Tribunal, learned counsel for the petitioner submits that the Tribunal has erred in applying the rule of exclusion provided in Column 3 of the Office Memorandum dated 8.9.1993 and further in holding that though a daughter whose parents are class I officers come within the exclusion clause before marriage but after marriage her jural relation with her natural parents comes to an end. And therefore, if she applies under theOBC category for a job after marriage, then she would not come within the exclusion clause even if her husband is a class I Officer. He further submits that as per own case of the respondent no.3 in her reply submitted to the show cause notice, her husband was not a class I officer and does not come within the 'creamy layer'. The proviso to clause-II of the schedule appended to Office Memorandum dated 8.9.1993 which applies to 'Service Category' therefore has no application in her case. This apart, in view of the admitted fact that the respondent no.3 is daughter of class I officer will come within the 'creamy layer' and the rule of exclusion would apply.
(3.) HE placed reliance on a Division Bench judgment of this Court in 2011 (4) ESC 2340 Union of India and another vs. Rajesh Kumar Yadav & another wherein observation of the Apex Court in Indra Sawhney & others has been re-quoted as under:- ".....the term 'Creamy Layer' or the Rule of Exclusion in actual application would imply. When a person has been able to shed off the attributes of social and educational backwardness and has secured employment or has engaged himself in some trade/profession of high status, as categorised by us below, he at that stage is normally no longer in need of reservation for himself. For example, if a person gets appointed as a Class I Officer either on open competition basis or reservation basis, the question of excluding him on the ground that he forms part of the 'Creamy Layer' does not at all arise. But since he himself has come into the socially advanced category he will be in a position to provide the means, the equipment and the opportunities which are necessary for the uplift of his offspring from the level of social and educational backwardness. As such, the question of applying the Rule of Exclusion will arise only in the case of his offspring." ;