1. The Mahatma Gandhi Kashi Vidyapith University, Varanasi is a State University governed by the provisions of the U.P. State Universities Act, 1973. The University published an advertisement No.1 of 2009 dated 14th February, 2009 inviting applications for appointment on two posts of Lecturers, in Sociology reserved for the persons belonging to Other Backward Class (OBC). The petitioner applied for appointment. He was called for interview and was empaneled at Sl. No.3. Dr. Arun Kumar Singh and Dr. Saumya Yadav empaneled at Sl.Nos.1 and 2, were appointed and have joined on 29th July, 2009.
2. By this writ petition the petitioner has challenged the selection of Dr. Arun Kumar Singh-respondent No.5 as Lecturer in Sociology in OBC category on the ground that he falls in 'creamy layer', and is to be excluded from selection in the reserved category. Dr. Raj Bahadur Singh Verma, the father of Dr. Arun Kumar Singh is Professor in Lucknow University and was at one time the Head of the Department in Lucknow University.
3. We have heard Shri P.S. Baghel, learned Senior Counsel assisted by Shri Ashwini Singh for the petitioner. Shri Anil Tiwari appears for the Mahatam Gandhi Kashi Vidyapith, Varanasi . Shri Ahsok Khare, learned Senior Counsel assisted by Shri Rajendra Kumar Yadav appears for Dr. Arun Kumar Singh-respondent No.5.
4. In the counter affidavit of Shri Om Prakash, Asstt. Registrar, Mahatma Gandhi Vidyapith Varanasi, it is stated that the petitioner has alternative remedy of approaching the Chancellor by way of reference under Section 68 of the U.P. State Universities Act, 1973. He has taken part in the selection proceedings and had appeared in the interviews and thus he cannot challenge the selection proceedings.
5. In para 6 of the counter affidavit it is stated that selection committee after taking into consideration all the records found the petitioner suitable along with two other candidates and was placed at Sl.No.3 after Dr. Arun Kumar Singh and Dr. Saumya Yadav at Sl. Nos.1 and 2. It is admitted in para 12 that the petitioner had requested for some information under the Right to Information Act, which was provided to him by letter dated 12.10.2009. The information regarding selection in which Dr. Arun Kumar Singh was placed at Sl.No.1, Dr. Saumya Yadav at Sl.No.2, Dr. Jay Prakash Yadav at Sl.No.3 and Dr. Shyam Narain Verma at Sl.No.4 was given to the petitioner.
6. In the rejoinder affidavit the petitioner has enclosed the information received by him from the Deputy Registrar (Accounts) of the Lucknow University, giving the pay scale and salary drawn by Dr. R.B.S. Verma (the father of Dr. Arun Kumar Singh) serving as Professor in the University in the pay scale of Rs.37,400-67,000/- (10,000) with total salary payable to him at Rs.90,331/- in the month of February, 2010. He has also annexed a letter of the Deputy Secretary, Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training dated 14th October, 2004 providing clarification regarding creamy layer amongst OBCs. Paragraphs 3, 6, and 9 relevant for the purposes of this case are quoted as below:-
"3. The criteria prescribed for determining creamy layer status of sons and daughters of persons in Government service mutatis mutandis applies to the sons and daughters of persons holding equivalent or comparable posts in PSUs, Banks Insurance Organisations, Universities etc. and also holding equivalent or comparable posts and positions under private employment. The creamy layer status of the sons and daughters of employees of organizations where evaluation of the posts on equivalent or comparable basis has not been made is determined on the basis of 'Income/Wealth Test' given in the Schedule. The Income/ Wealth Test prescribes that the sons and daughters of persons having gross annual income of Rs.2.5 lakh or above or possessing wealth above the exemption limit as prescribed int he Wealth tax Act for a period of three consecutive years would be treated to fall in creamy layer. An explanation is given below the Income/Wealth Test which provides that 'income from salaries or agricultural land shall not be clubbed.
6. In regard to clause (iv) of para 4, it is clarified that sons and daughters of parents who are included in the creamy layer on the basis of service status of their parents shall continue to be treated in creamy layer even if their parents have retired or have died after retirement.
9. In regard to clause (ix) of para 4, it is clarified that the creamy layer status of sons and daughters of persons employed in organization where equivalence or comparability of posts vis-a-vis posts in Government has not been evaluated is determined as follows:-
Income of the parents from the salaries and from the other sources [other than salaries and agricultural land] is determined separately. If either the income of the parents from the salaries or the income of the parents from other sources [other than salaries and agricultural land] exceeds the limit of Rs.2.5 lakh per annum for a period of three consecutive years, the sons and daughters of such persons shall be teated to fall in creamy layer. But the sons and daughters of parents whose income from salaries is less than Rs.2.5 lakh per annum and income from other sources is also less than Rs.2.5 lakh per annum will not be treated as falling in creamy layer even if the sum of the income from salaries and the income from the other sources is more than Rs.2.5 lakh per annum for a period of three consecutive years. It may be noted that income from agricultural land is not taken into account while applying the Test."
7. In the counter affidavit of Dr. Arun Kumar Singh-respondent No.5 it is stated that the reservation for OBC, SC and ST in the State is available in terms of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (In short the Act of 1994). Schedule-II appended to the Act provides for criteria for excluding the citizens in the category of OBC from the benefit. The proviso to Section 3 (1) excludes citizens specified in Schedule-II to be given reservation under Clause(C) (Other Backward Classes).
8. Shri Arun Kumar Singh-respondent No.5 has relied upon the certificate given by the Tehsildar Sadar, Lucknow dated 5.3.2009 on the basis of enquiry report of Shri Ajit Kumar dated 5.3.2009 verifying that the petitioner is not covered by the amendments made in the year 2008 to the Act. The total income of his mother and father in last three years is not more than Rs.5 lacs and that they do not have the properties beyond the exemption limit under the Wealth Tax Act, 1957. He has relied upon the same Office Memorandum dated 14th October, 2004 for the purposes of establishing that he does not belong to creamy layer.
9. Dr. Saumya Yadav-respondent No.6 has also filed the counter affidavit stating that she is a house wife, and was never employed. Her father was Lecturer in A.K. College, Shikohabad. He had opted for voluntary retirement in June, 1996 due to permanent incapacitation caused by a road accident. His last drawn salary was Rs.5000/- only. He had no opportunity to work with any international organisation, and even otherwise she is not covered by the proviso under the Office Memorandum dated 8th September, 1993. At the time of death of her father he was drawing meager pension of Rs.11,500/-, which is well below the levels of prescribed identification of creamy layer under the Office Memorandum dated 14th October, 2008.
10. The parties have exchanged pleadings. They have also filed supplementary affidavits and several documents on record to establish the criteria for finding out the persons falling in creamy layer of the Other Backward Class. The parties including the respondent No.5 have also brought on record several notifications and Government Orders with regard to salary of the father of respondent No.5 and to establish that before he had attained the age of 40 years, to be appointed in Group-A/ Class-1 post before he attained the age of 40 years. In the circumstances, we do not find it appropriate to relegate the petitioner to the alternative remedy of filing representation to the Chancellor. It is not appropriate for the Court to relegate the petitioner to alternative remedy after pleadings have been exchanged and the entire material relevant for the purposes of deciding the legal question raised, has been brought on record. The participation of the petitioner in selection also cannot be pleaded and objected to dis-entitle him from challenging the selections. He could not have known the disqualification of respondent No.5 to be excluded from reserved category (OBC) on the ground that he falls in creamy layer.
11. In this writ petition we are concerned with only one issue, namely, whether Dr. Arun Kumar Singh-respondent No.5 included within the category of the Other Backward Classes of citizens, falls in creamy layer within the meaning so defined in Schedule II of the Act of 1994 to be excluded from the benefits of the reservation.
12. A nine Judge Bench of the Supreme Court in Indra Sawhney v. Union of India, (1992) Supp. 3 SCC 217 interpreted various aspects of Art.16 (4) of the Constitution of India. While holding that Art.16 (4) aims at group backwardness the Supreme Court came to the conclusion that socially advance members of the backward class-"creamy layer" - have to be excluded from the said class. it was held that the 'class', which remains after excluding 'creamy layer' would more purportedly serve the purpose and object of Art.16 (4). Pursuance to the directions in Indra Sawhney (Supra) the Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) issued Office Memorandum dated 8.9.1993 providing for 27% reservation for Other Backward Classes. Para 2 (c) of the Memorandum excluded the persons/ sections mentioned in Column -3 of the Schedule to the said Memorandum consisting of the persons belonging to 'creamy layer'. The Supreme Court in Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403 found that the criteria for identifying the creamy layer laid down in the schedule of the Office Memorandum dated 8.9.1993 is in conformity with the law laid down by the Court in Indra Sawhney's case, and approved the Rule in Para 2 (c) read with the schedule of the Office Memorandum. The Supreme Court, however, found that the amendments made by the Government of Bihar in the reservation Act of 1992 by Ordinance of 1995 and Schedule-II read with Section 3 (b) of the U.P. Act No.94 were arbitrary and rejected them. It was made open to the two states to lay down fresh criteria for subsequent years in accordance with law.
13. The Government of Uttar Pradesh by Notification dated 8th December, 1995, in compliance with the directions of the Supreme Court in Ashoka Kumar Thakur's case decided on 4.9.1995, notified that for the academic year 1995-96 the prescribed creamy layer under Office Memorandum of the Central Government dated 8.9.1993 will be followed, and substituted Schedule-II to the Act of 1994 accordingly.
14. By an amendment the 'Mad-6' Para (a) was substituted by providing for person, who is in three continuous years has total annual income of Rs.5 lacs or more or, which has property over and above the property beyond the exemption limit under Wealth Tax Act, 1957.
15. It is not denied that the father of Shri Arun Kumar Singh-respondent No.5 had income of more than Rs.5 lacs in all of the previous three years. It is, however, alleged that since his father is a serving Professor, his case would be covered by Sub-Column 'b' of Column 'b', which provides:-
"parents of whom, only the husband is Class-II officer, and he gets into Class-1 at the age of 40 or earlier."
16. Shri Ashok Khare, learned counsel for respondent No.5 submits that the determination whether a person belongs to OBC category covered by creamy layer is made on the basis of notification of the State Government dated 8.12.1995 published in U.P. Gazette as amended on 20th October, 2008. The notification categorises the persons in three categories on criteria namely (1) constitutional post; (ii) service category and (iii) Income/ property. The father of respondent No.5 does not hold any constitutional post. Category-3 pertains to property/ income from property is concerned. The present case is covered by service category i.e. Category-2, only if case the income of such person in service from sources other than salary received in service i.e. from the property brings him under the purview of Category-3. There is no pleading nor there is any objection that the father of the respondent No.5 has any income other than his salary, to cover him under Category-3.
17. Shri Ashok Khare submits that Category-2 is further divided into following sub-categories:-
"(i) Group 'A'/ Class 1 officers belonging to All India Central Service or State Service so appointed by direct recruitment.
(ii) Group 'B'/ Class II Officers of Central and State Service so appointed by direct recruitment.
(iii) Employees of Public Sector Undertakings.
(iv) Persons employed in Trade/ Profession."
18. The father of the respondent No.5 is employee of the University and would thus fall under sub-category-(iii) of the service category. A reading of the sub category, along with sub category (Ka) and (Kha) of category 2 (Kha), demonstrates that in a case where the father alone is in service and was appointed to Group 'B'/ Class II service and had been promoted to Group 'A'/ Class 1 service, before he attains 40 years of age, then alone he and his dependents can be treated as belonging to 'creamy layer'.
19. It is submitted that the date of birth of the father of the respondent No.5 is 20.1.1949. He was appointed as Reader on 9.4.1989 and was appointed as Professor on 23.9.1997 and on both the aforesaid dates he was above 40 years. According to the further stand of the answering respondent the appointment of the father as Lecturer in University of Lucknow on 23.3.1978 was an appointment against Group 'B'/ Class II post and the same can not be treated to be an appointment in Group 'A'/ Class 1 post.
20. Shri Ashok Khare submits that the Lecturer of the Universities hold Group 'B'/ Class-II post. He has relied upon the letter of the University Grants Commission dated 20.7.2001 addressed to V.T. Patel, Vice Chancellor, Pondicherry University taking objection against action of the University conferring Group 'A' status upon the Lecturer of the University and issuing directions to immediately withdraw such status. Shri Khare submits that in State Government service the classification of Group 'A' to Group 'D' depends upon the pay scales carried by such individual post and the classification of categories with reference to the pay scales notified by the competent authority. He also relies upon the Office Orders dated 4.9.1976, 27.2.1982 and 7.10.2003 in which pay scale of Lecturer was specified as Rs.400-950 w.e.f. 1.4.1966 (Government Order dated 25.8.1967); revised pay scale of Rs.700-1600 w.e.f. 1.1.1973 (Government Order dated 28.12.1974) and revised pay scale of Rs.2200-4000 w.e.f. 1.1.1986 (Government Order dated 10.9.1987). The revisions have not been affected on the recommendation of the Pay Commission but on the recommendation of the University Grants Commission. The gazetted posts on 4.9.1976 and 27.2.1982 carrying the maximum of more than Rs.1200 and Rs.1720 as pay scale would only be covered under Group 'A'.
21. Shri Khare submits that the pay scale of teachers have been revised not on the basis of recommendation of the Pay Commission but on the recommendation of the University Grants Commission vide Government Order dated 6.3.1973, in which the recommendation of the Pay Commission 1971-73, were not made applicable to teaching staff of State Universities and aided Degree/ Post Graduate colleges. The revisions were separately considered in pursuance to the recommendation of the University Grants Commission.
22. The father of respondent No.5 was born on 20.1.1949. We have to find out whether he got into Class-1 (Group-A) Services at the age of 40, or earlier i.e. whether on 19.1.1989 he was appointed in Group 'A' post.
23. It is admitted that the father of respondent No.5 was regularised on the post of Lecturer in the Department of Social Work, Lucknow University on 23.3.1978; he was appointed as Reader on 9.4.1989 and then Professor on 23.9.1997. The respondent No.5 had submitted a chart signed by him dated 14.5.2010, before the enquiry committee of the University, giving a chart with these dates. He, therefore, did not get into Class-I service at the age of 40 or earlier and would thus not fall in any of the categories in Schedule-2 with reference to Section 3 (c) of the Act of 1994.
24. A supplementary affidavit has been filed by Dr. Arun Kumar Singh on 19th July, 2010 annexing therewith Office Memorandum of the Government of U.P. dated 27.2.1982 and 7.10.2003, in which it was provided in modification of the Office Memorandum dated 4.9.1976, notifying the government service in Group 'A', 'B', 'C' and 'D' on the basis of the pay scales. The Office Memorandum dated 27.2.1982 had classified all the gazetted posts of which the higher in the pay scale was Rs.1720/- and above in Category 'A' and in Office Memorandum dated 7.10.2003 the persons in the pay scale of Rs.10,000-15,200/- were classified as Group 'A'.
25. An enquiry committee was constituted by the University to examine whether the respondent No.5 requires to be excluded from the OBC category on the ground that he falls in the creamy layer. Dr. Arun Kumar Singh-respondent No.5 submitted his reply on 14.5.2010. The relevant part of his reply is quoted as below:-
"(b) The objection to my candidature by Dr. Jai Prakash Yadav is based on the misplaced and factually incorrect interpretation of the OM on creamy layer by Govt. of India and its adopted version of Govt. of Uttar Pradesh and amended periodically by both Governments on income ceiling issue. The reference to Ashok Kumar Thakur's case 1994 and the income ceiling of Rs.2.5 lakhs are misleading. The Govt. of U.P. adopted the Govt. of India Notification on creamy layer in 1995 and the Govt. of India Notification on creamy layer adopts status, status and income and income and wealth criteria. My father belongs to Service Category C mentioned in the notification. The exact wording of the provision is as follows:-
"The criteria enumerated in A & B above in this category will apply mutatis mutandis to officers holding equivalent or comparable posts in PSUs, Banks, Insurance Organization, Universities, etc. and also to equivalent or comparable posts and positions under private employment, pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in category VI below will apply to the officers in these institutions".
The provision refers back to criteria enumerated in Service categories of A and B. In my case this refers to B (b) which reads specifically as follows-
(b) "Parents of whom only the husband is a Class II officer and he gets into Class 1 at the age of 40 or earlier".
In my case the employment status of my mother is that of a housewife and only my father is in employment.
The date of birth of my father, Dr. Raj Bahadur Singh, according to his High School Certificate is 20.1.1949. He was promoted to the position of Professor in the Department of Social Work, Lucknow University on 29 September, 1997. He was 48 year and 8 months old as on that date. Following the position made in Service category C read with B (b) of the creamy layer notification of the Govt. of India & UP I do not fall under creamy layer. It is inconsequential what salary my father is drawing since then. The competent authority that issued OBC certificate to me was therefore absolutely correct in interpreting the provision made in the OM on creamy layer of Govt. of India & UP.
(3) Dr. Jai Prakash Yadav has misinterpreted the provision made on creamy Layer in the OM of Govt. of India and Notification on creamy Layer by Govt. of U.P. He has also bypassed the provisions of U.P. Universities Act in not presenting his alleged grievance to the University and the Chancellor and has directly approached the Hon'ble High Court. The facts presented here contradict the interpretation made by Dr. Yadav before the Hon'ble High Court.
(4) I furnished the foregoing facts to my counsel representing my case at the High Court and was assured by him that these would be presented in the form of a counter affidavit. However, he did not file needed affidavit despite several adjournments. Subsequently, he also did not inform me that the Govt. of U.P. had appointed him its Standing Counsel. That is how the Hon'ble Court stayed my appointment on this technicality. I have engaged a new counsel and would file my counter affidavit before the next date of hearing of the case in the High Court.
(Dr. Arun Kumar Singh)
Lecturer, Department of Sociology
M.G. Kashi Vidhya Peeth
Varanasi"
26. Dr. Harnam Singh Verma, Former Member, U.P. Backward Commission was nominated as Chairman of the enquiry committee by the Vice Chancellor. Prof. Nand Lal, Department of Political Science and Shri Om Prakash, Asstt. Registrar, Legal were the Member and the Secretary of the Committee. The Committee considered the reply in its report alongwith reply of respondent No.5 and the documents produced by him before the Committee, which has been annexed to the supplementary counter affidavit of Shri Om Prakash, Asstt. Registrar of the University dated 23.5.2010. In the report the Committee concluded as follows:-
"In the light of foregoing legal position, Dr. Arun Kumar Singh does not fall under Creamy Layer since his father's salary cannot be counted and his father's income from other sources is significantly lower than the ceiling of Rs.5.00 Lakhs fixed under Category VI of the Schedule of Creamy Layer of GOUP. He has stated that his father is not covered under Wealth Tax. The OBC Certificate issued to him by competent authority also corroborates this position.
Status and income wise, Dr. Arun Kumar Singh's case has to be viewed in this perspective. Facts pointed out that his background is inferior to that of any candidate who is a ward of a directly recruited Class-I or II employee of the GOUP. The salary and income from agricultural land of his father cannot be counted for calculation of creamy layer. Income of his father from sources other than salary and agricultural lands is significantly below the ceiling of Rs. five lakhs fixed by the GOUP rules on creamy layer under the Income/ Wealth Test in category VI. The OBC Certificate issued to him by competent authority also corroborates this position.
4.4 The Committee therefore concluded that Dr. Arun Kumar Singh does not come under the creamy layer rules framed by the GOI and GOUP and amended periodically.
4.5 Mahatma Gandhi Kashi Vidyapith has correctly accepted the genuineness of his certificate and selected him as an OBC candidate for the position of the Lecturer in Sociology.
(Prof. Nand Lal) (Sri Om Prakash) (Dr. Harnam Singh Verma)
Member Secretary Chairman"
27. Upon hearing learned counsels appearing for the parties and after going through Schedule-II of the U.P. Act of 1994 as well as the enquiry report submitted by the enquiry committee on creamy layer status of the respondent No.5, we are of the opinion that Dr. Arun Kumar Singh- respondent No.5 on the basis of his father's status falling in the service category, holding post of Professor in the University of Lucknow in pay scale of Rs.37,400-67,000/- (10,000) with total salary in the month of February 2010 at Rs.90,331/-, and having attained the status of Class-1 (Group-A Employee) on the basis of his salary drawn as Lecturer, before he attained the age of 40 years (19.1.1989), would fall in the creamy layer and was thus liable to be excluded from selection in OBC category, as he falls in creamy layer under Schedule-II of the U.P. Act of 1994.
28. The notification dated 8.12.1995 published by the Government of U.P. after Ashok Kumar Thakur's case, following the criteria laid down by the Central Government, categorises candidates under three categories for determination of creamy layer namely constitutional post, service category and income/ property. The respondent No.5 has to be considered, to fall in the category on the basis of status and income of his father. He has to be treated in service category, as there is no pleading or any objection that he has any income apart from his salary, which may cover him in the third category. His father was admittedly drawing more than Rs.5 lacs per annum in last three years and thus we have to only look into the fact whether his father had got into Class-1 service at the age of 40 or earlier under Clause (B) (Service Category) (b) (b) of Schedule -II appended to the Act of 1994.
29. It is admitted that the petitioner's father was serving as Lecturer before he attained the age of 40 years. In the State of U.P. the posts are not categorised as Class-1, II, III and IV. The categories of these classes are made equivalent to Category 'A', 'B', 'C' and 'D' based upon the pay scales. The pay and allowance of the employees of the University were not fixed in pursuance to the recommendations of the Pay Commission of the State. They were fixed on the recommendations of the University Grants Commission accepted by the State Government. The Lecturer was drawing salary in the revised pay scale of Rs.2200-75-2800-100-4000 in the Universities in the year 1987 by Government Order No.5714/15-11-87-14 (5)/87 dated 10.9.1987 before the petitioner's father attained the age of 40 years on 19.1.1989. The respondent No.5 is thus to be excluded from the benefit of OBC, as he falls in 'creamy layer'.
30. The enquiry committee on creamy layer status of respondent No.5 appointed by the University, had clearly fallen into error. It firstly fell into error in finding that salary of father of respondent No.5 cannot be counted as his father's income from other sources is significantly lower than the ceiling of Rs.5 lacs fixed under Category-4 of the Schedule. It was nobody's case, nor there was any pleading or material to show that father of respondent No.5 had income from any other source. With regard to the status of the father of respondent No.5 through whom he was claiming to belong to OBC category, and got into Class-1 service before he attained the age of 40 years, was not considered by the Committee. We, therefore, cannot place reliance upon the report of the Committee for deciding the case.
31. The writ petition is allowed. It is declared that the respondent No.5 was not entitled to the benefit of reservation falling in OBC category for appointment as Lecturer in Sociology, as he falls into 'creamy layer', and was excluded from such benefits. His appointment as Lecturer in Sociology in Mahatma Gandhi Kashi Vidyapith is set aside. There is no material to come to the same opinion with regard to Dr. Saumya Yadav. The University will thus treat Dr. Saumya Yadav as first selected candidate and the petitioner empaneled at Sl.No.3 as selected on the second post. The order shall be carried out within a month from the date it is produced before the Registrar of the University.