Table of content:-

• Background of the case
• Issues Raised
• Statutory Provisions Involved
• Submissions of the parties
• Judgment Analysis
• Conclusion
• Case Laws:
• Indra Sawhney v. Union of India [(2000) 1 SCC 168]
• Ashok Kumar Thakur v. State of Bihar [(1995) 5 SCC 403]

Pichra Warg Kalyan Mahasabha Haryana (Regd.) & Anr. Vs the State of Haryana & Anr. [Writ Petition (Civil) No. 60 of 2019]

Background of the case

A writ petition had been filed before the Hon’ble Supreme court under Article 32 of the constitution of India by challenging the constitutional validity of the two notifications issued on 17th August 2016 and 28th August 2018 under Articles 14, 15, and 16 of the constitution.

These notifications were issued by the State Government of Haryana in which the economically backward classes had been sub classified while fixing a criterion for Creamy Layer and it was sought from the Writ Petition for the fresh survey and verification of data for the identification of the creamy layer under the Reservation in Services and Admission in Educational Institutions Act, 2016.

Notification Issued on 17th August 2016:- by the virtue of this notification Haryana Government specified the criterion for the exclusion of ‘creamy layer’ within the backward classes. It includes:-

The children of those individuals whose annual salary is up to Rs. 3 Lakhs shall get reservations in services and admissions in educational institutions.

The individuals whose annual income is between Rs. 3 lacs to 6 lacs fallen under the left out quota.

And those individuals whose income is more than Rs. 6 lacs will be treated as ‘creamy layer’ under Section 5 of the Reservation in Services and Admission in Educational Institutions Act, 2016.

Students who took admissions in MBBS in the academic year 2018-19 in the quota of backward classes filed a writ petition before the Punjab and Haryana High court challenging the said notification.

The High Court had set aside the said notification solely on the ground that the said notification is arbitrary and violative of Article 14 of the Constitution of India. Further it direct that the student’s counseling shall be done fresh on the basis of the earlier criterion that existed prior to said notification.

Aggrieved by this judgment Haryana Government filed the present petition in which it questioned the judgment of the High Court and the same was declined.

Notification Issued on 28th August 2018:- After the rejection of their petition, the government issued another notification in which it was specified that the criteria of calculating the annual income will be considered as ‘gross annual income’ which includes income from all sources.

By this notification, the government overruled all previous notifications. Th3e students who had cleared NEET and seeking admission under MBBS and BDS courses I the backward classes quota filing the petition in the High Court challenging the validity and legality of both the notifications.

The high court upheld both these notifications and therefore the present SLP was filed.  

Issues Raised

1. Whether the notifications issued by the State government of Haryana are constitutionally valid?
2. Whether these notifications amounts to the violation of the guidelines issued in Indra Sawhney’s Case?

Statutory Provisions Involved

• Section 5 (2) of the Reservation in Services and Admission in Educational Institutions Act, 2016

“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.”

• Article 14 of the Constitution of India

“Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

• Article 15 of the Constitution of India

“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

• Article 16 of the Constitution of India

“Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”

• Article 32 of the Constitution of India

“Remedies for enforcement of rights conferred by this Part

(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2)The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

Submissions of the Parties

The contention of the petitioner

Learned Counsel Mr. Siddharth Dave submitted the following on behalf of the petitioner:-

• It was contended that both the notifications are contrary to the guidelines laid down in the Indra Sawhney- I case.
• Further, it was contended that the said notifications are also in violation of Section 5 of the Reservation in Services and Admission in Educational Institutions Act, 2016.
• It was submitted that sub classification of the backward classes on the basis of income precluded the individuals from reservations whose annual income is in between Rs. 3 lacs to 6 lacs.
• It was urged that the computation of income including income from all sources is contrary to the notification issued by the Government of India.

The contention of the respondent

Learned Counsel Mr. Arun Bhardwaj submitted the following on behalf of the Respondent:-

• It was submitted that the said notifications have been issued in compliance with the guidelines laid down in Indra Sawhney’s case.
• It was contended that before issuing the said notifications a detailed district-wise survey was done by the commission.
• It was also submitted that the sub classification had been done in such a way so that lower-income groups get more benefit as they need more help than other income groups.
• It was further submitted that the classification done in the notification issued in 2016 is restricted to economic criterion only.  

Judgment Analysis

The court observed that the judgment of the Indra Sawhney case in which the ‘creamy layer’ had been identified was not implemented promptly by certain states. It was observed that the State of Kerala neither appoint any commission nor implemented the guidelines of the case for more than 3 years and as a result it contempt proceedings were initiated against the state.

In Indra Sawhney v. Union of India [(2000) 1 SCC 168] the court after examined various recommendations and various opinions on the Indra Sawhney- I judgment in order to determine the ‘creamy layer’ the court held that all those individuals who belong to backward classes and attain a high post such IPS, IAS, etc. would not be treated as backward anymore as they received a higher level of social advancement. Those individuals in fact treated as ‘creamy layer’. Further, all those persons who hold large agricultural holding and other properties which is beyond the prescribed limit do not deserve the benefit of the reservation.

The court relied upon the decision of the Ashok Kumar Thakur v. the State of Bihar [(1995) 5 SCC 403] in which it was held that the criteria are taken by the State of U.P. and Bihar for fixing the ‘creamy layer’ in lieu of Indra Sawhney –I judgment was held to be arbitrary and not accordance with the guidelines.

Conclusion

The court held that government of Haryana while setting the criteria for identifying persons who fallen under the category of ‘creamy layer’ had not complied with section 5 (2) of the act and therefore was liable to be set aside.

The court quashes the notification issued in 2016 and provides liberty to the government to issue fresh notification within 3 months from the date of the judgment after taking into account the guidelines laid down in the Indra Sawhney- I  and section 5 (2) of the act.

The court further added that as the notification of 2016 had been struck down now there is no need to check the validity of the notification issued in 2018 as it entirely depends upon the previous notification. Further, the admissions to educational institutions and appointments to state services on the basis o0f the said notifications shall not be disturbed.