Supreme Court Strikes Down Haryana Notification Creating Sub-Classification Within OBC Non-Creamy Layer
The Supreme Court on Tuesday struck down the notification dated August 17, 2016 issued by State of Haryana which gave preference within the non-creamy layer to persons of the category having annual income up to Rs.3,00,000/- in the matter of admissions and services. The Court has directed the State to issue a fresh notification within a period of 3 months. However, the bench has...
The Supreme Court on Tuesday struck down the notification dated August 17, 2016 issued by State of Haryana which gave preference within the non-creamy layer to persons of the category having annual income up to Rs.3,00,000/- in the matter of admissions and services.
The Court has directed the State to issue a fresh notification within a period of 3 months.
However, the bench has also directed to not disturb admissions and appointments in state services already made on the basis of the said notification. The reasons for the decision will be known when the fully copy of the judgment is received.
A bench comprising Justices L Nageswara Rao and Aniruddha Bose pronounced the verdict in a batch of petitions challenging a verdict of the Punjab and Haryana High Court.
"..the State of Haryana has sought to determine 'creamy layer' from backward classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17.08.2016 requires to be set aside", the Supreme Court observed.
The court observed that the notification dated 17.08.2016 is in flagrant violation of the directions issued in Indra Sawhney-I and is at variance with the memorandum dated 08.09.1993 issued by the Union of India
"The criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by the Government of Haryana while issuing the notification dated 17.08.2016. While issuing the notification dated 07.06.1995, the State Government had followed the criteria laid out in the memorandum issued by the Union of India on 08.09.1993, which was in tune with the directions given by this Court in Indra Sawhney-I.
In spite of Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of 'creamy layer' to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine 'creamy layer' from backward classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17.08.2016 requires to be set aside.
Therefore, we quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this Court in Indra Sawhney-I and the criteria mentioned in Section 5(2) of the 2016 Act for determining 'creamy layer'.", the court observed.
The issue was relating to the validity of a notification issued by the State of Haryana. The State Government had notified that the persons having an annual income up to Rs.6,00,000/- (Rupees Six Lakhs only) to be the non-creamy layer in the OBC category, and above that of creamy layer. However, as per circular dated 17.8.2016, preference has been given within the non-creamy layer to persons of category having annual income upto Rs.3,00,000/- (Rupees Three Lakhs), in the matter of admission in the medical colleges etc.
The High Court, in its judgment delivered on August 7, 2018, held the Government notification making a sub-classification within the non-creamy layer segment as annual income below Rs 3 lakhs and annual income within Rs 3 -6 lakhs as unconstitutional. The High Court held that there was no data to justify the sub-classification within the non-creamy layer.
A division bench comprising Justices Mahesh Grover and Mahabir Singh Sindhu of the High Court observed as follows :
"...once it is accepted that certain categories though identified as backward, will be treated as creamy layer with an income more than 6 lakhs, any further sub classification in the list of backwards without any inputs can be termed to be an arbitrary classification that ensures reverse discrimination which closes the doors of equitable distribution amongst the backward classes....Evidently the social advancement of a caste or a group would have to be identified on an empirical data and it cannot be assumed straightway that those with in income above 3 lakhs would have unshackled the social backwardness ; such an exclusion from within the identified backward classes cannot stand the test of constitutional requirement. The end result is that the State has given a benefit with one hand only to take it away with the other."
Case: Pichra Warg Kalyan Mahasabha Haryana vs. State of Haryana ; WP(C) 60 of 2019
Coram: Justices L. Nageswara Rao and Aniruddha Bose
Citation: LL 2021 SC 398