HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 28.3.2011 Judgment delivered on 26.5.2011 CIVIL MISC. WRIT PETITION NO. 23692 OF 2005 Union of India & anr v. Rajesh Kr. Yadav & anr Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
1. We have heard Shri Rakesh Sinha for the petitioners. Shri K.R. Sirohi appears for the respondent no.1.
2. The applicant-respondent no.1 appeared in the Civil Services Examination, 1999 claiming benefit of reservation belonging to 'Ahir' community notified as 'Other Backward Classes' by Government of India, Ministry of Welfare Resolution No. 12011/68/930BCC (C) dated 10.9.1993. He secured 290th rank in the list of candidates recommended for appointment. During scrutiny of his application form, it was observed that he may not be eligible to the benefit of reservation for OBCs since he falls in 'creamy layer', under Office Memorandum dated 8.9.1993, and is excluded, as he is son of a direct recruit Assistant Engineer in the Uttar Pradesh State Electricity Board, who was promoted to the post of Executive Engineer before the age of 40 years.
3. A notice was issued to the petitioner to show cause as to why caste certificate declaring him as not being of the creamy layer be disallowed, and that his candidature as an OBC candidate be cancelled. The notice was issued on 10.9.2003.
4. It was stated in the notice that the Office Memorandum dated 8.9.1993 describes the category and classes to whom the rule of exclusion will apply, it provides that son (s) and daughter (s) of the parents of whom only the husband is a Class II officer (direct recruit) of the Central or State service and equivalent/comparable posts in Public Sector Undertakings, and he gets into Class I at the age of 40 or earlier shall not be entitled to get the benefit of reservation available to OBCs. The Government of U.P. vide letter dated 21.8.2003 had informed that the U.P. State Electricity Board Service of Engineers of, (a) Class-I posts of C.E., ACE, S.E., E.E (SG) and E.E and (b) Class-II posts of A.E.E. and A.E, and further as per information given by the Government of U.P. by its letter dated 13.1.2003, all Group-A and Group-B (Class-I and II) officers of the UP State Electricity Board have/had been getting the same benefits as Group-A and B officers of the State Government. The posts of Assistant Engineer and Executive Engineer to which the applicant's father was directly recruited and to which he was promoted before the age of 40 years, are respectively Class II and Class I posts of UP State Electricity Board Engineers Service. The holders of these posts get all the benefits as Group-B and Group-A officers of the State Government. The father of the applicant Shri Sheo Charan Ram Yadav was appointed to the posts of Assistant Engineer by direct recruitment in UP State Electricity Board Service of Engineers and was promoted to the post of Executive Engineer of that service at the age of less than 34 years. (He was appointed on Class II post by direct recruitment and was promoted to a Class I post before the age of 40 years). Thus the applicant belongs to persons/sections (creamy layer) mentioned in Column-3 of the schedule to the Government of India, Department of Personnel and Training Office Memorandum dated 8.9.1993, and hence the applicant is not entitled to the benefit of reservation available to OBC candidates.
5. In reply to the notice the applicant stated that he is a candidate for Civil Services Examination 1999, and on that basis he has been allocated Indian Police Service. His OBC certificate was issued by the Tehsildar, Sagari and duly countersigned by the ADM, Azamgarh. He does not belong to the persons/sections (creamy layer). The certificate has been issued by the competent authority after proper verification. The provisions contained in Office Memorandum dated 8.9.1993 have not been properly represented and due to the omission of relevant section determining the applicable criteria it has led to erroneous exclusion. The provisions mentioned in para-3 of the notice have not correctly depicted the persons/sections mentioned in Column-3 of the schedule appended to Office Memorandum.
6. The petitioner further contended, that the reply furnished by Government of U.P. by letter dated 21.8.2003 is incorrect. Rule 2 of the U.P. State Electricity Board Service of Engineers was amended by U.P. Government vide its letter dated 16.9.2003.
7. The above quoted Rule, it was submitted by the petitioner, does not provide for any classification of the post held by his father in Class-I and Class-II. The classification of the posts of UP SEB has been derived arbitrarily by the Department of Personnel and Training, and that the U.P. Government has not used the word "All Group-A & Group-B (Class-I and Class-II) officers of U.P. S.E.B." The petitioner also submitted that as per Government of U.P. vide its letter dated 21.8.2003 there is no classification of the posts and that the applicant's father was neither a Group A/Class-I officer of the All India Central/State Services (direct recruit) nor a Group B/Class-II officer of the Central/State Services (direct recruit). The posts of A.E. and E.E. held by his father are not comparable/equivalent to the Class-I/Class-II posts of the State Government. Applicant's father was an employee falling under sub-category II (C) of the service category, who had no Class-I or Class-II status and as such the provisions of category II (B) cannot be applied and criteria VI is applicable on him.
8. By the impugned order dated 8.12.2004 the Director, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India considered applicant's reply and rejected it, and in view thereof the caste certificate declaring petitioner as not belonging to creamy layer was disallowed being contrary to the provisions of Office Memorandum dated 8.9.1993. The applicant's claim to the benefit of reservation as an OBC candidate was not acceptable and was rejected. The Director opined:-
"Thus, it is quite clear that the posts under the U.P. Power Corporation are comparable with the posts under the State Govt. and Shri Rajesh Kumar Yadav has not given any reason as to why the comparison already made by the State Govt. is not acceptable. Further, the Govt. of U.P. vide its letter No. VM-18/24-P-2-2003-1 (18)/2003, dated 21.8.2003 has stated there is no criteria to consider equivalence of the posts of Assistant Engineer and Executive Engineer in UPSEB/U.P. Power Corporation with posts under the State Govt. The averments are not acceptable as it do not clarify as to why the posts which were earlier comparable on the basis of facilities/benefits are not comparable now. So long all Group A & Group B (class I and class II) officers of the Uttar Pradesh Power Corporation have/had been getting the same benefits as Group A and Group B officers of the State Government, the posts of Assistant Engineer and Executive Engineer to which the father of Shri Yadav was directly recruited and to which he was promoted before the age of 40 years respectively are comparable to class II and class I posts of the Govt. of Uttar Pradesh."
9. The applicant filed Original Application No. 709 of 2004. The respondents in the OA, namely the Union of India through Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, and the Director of All India Services (AIS), Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Govt. of India did not file any reply. The Tribunal allowed the original application on 17.12.2004, and quashed the impugned order holding the applicant entitled to be appointed according to his ranking in Civil Services Examination, 2001 as a candidate belonging to OBC. The Tribunal further directed to implement the order forthwith as the training of the 2001 batch of Civil Services Examination was going to commence shortly.
10. In this writ petition the order of the Central Administrative Tribunal, Allahabad dated 17.12.2004 in Original Application No. 709 of 2004 (Rajesh Kumar Yadav vs. the Union of India and another), was stayed on 31.3.2005. The writ petition was dismissed for want of prosecution on 17.8.2007. It was later on restored on 3.10.2007. We are informed that the applicant has not been given appointment order.
11. The Tribunal recorded findings in paragraphs 6, 7 and 8 of the order, as follows:-
"6. The applicant has been excluded from the benefit of reservation meant for OBC candidates, on the grounds firstly, that his father happened to be a direct recruit Assistant Engineer (Class-II) who was promoted to the post of Executive Engineer (Class-I) at the age of less than 34 years. The applicant's contention is that his father was employed in U.P. State Electricity Board/U.P. Power Corpn. a Public Sector Undertaking and the post held by him has not yet been equated or made comparable to the posts referred to in sub-categories 'A' and 'B' of the IInd category i.e. service category of persons belonging to 'creamy layer' as specified in the schedule attached to the Office Memorandum. In respect of the employees in Public Sector Undertaking etc., the criteria enumerated in sub-category 'A' and 'B' of the IInd category has been made mutatis mutandis applicable to the officers holding 'equivalent or comparable post' in Public Sector Undertakings, Banks, Insurance Organisations etc. and also to equivable or comparable posts under private employment which reads as under:-
"C. Employees in Public Sector Undertaking etc. The criteria enumerated in A & B above in this category will apply mutatis mutandi to officers holding equivalent or comparable posts in PSUs, Banks, Insurance Organisations, 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."
It seems to have escaped the notice of the Director that so far there has been no 'equivalence' or 'comparability' of the posts held by the applicant under U.P. Electricity Board/U.P. Power Corporation with the post enumerated in 'A' and 'B' of the service category. In view of the specific stipulation in the schedule that pending evaluation of the posts on equivalent or comparable bases in the Public Sector Undertakings etc., the criteria specified in category VI of the schedule would apply to the officers in these institutions. Category VI deals with 'Income/Wealth test which reads as under:-
"VI. INCOME/ WEALTH TEST Son(s) and daughter(s) of
(a) Persons having gross annual income of Rs. 1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive year;
(b) Persons in Categories I, II, III and V A who are not dis-entitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in (a) above.
Explanation:
(i) Income from salaries or agricultural land shall not be clubbed;
(ii) The income criteria in terms of rupee will be modified taking into account the change in its value every three years. If the situation, however, so demands, the interregnum may be less.:
If adjudged on the basis of criteria laid down in category VI, the applicant would not be liable to be excluded from the zone of consideration as an OBC candidate. It is true that the income of the applicant's father was more than one lakh but as provided in the explanation to category No. IV of the schedule to Office Memorandum dated 8.9.93, 'income from salaries or agricultural land' was not liable to be clubbed for the purposes of determining whether a person comes within the ambit of creamy layer under the Vith category i.e. 'income/wealth test'. It is no doubt true that in category VI of the schedule to Office Memorandum dated 8.9.93, persons having gross annual income of one lakh and above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years and persons in Category I, II, III and V-A who are not dis-entitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in category VI (a) are excluded but income from salaries or agricultural land is not to be taken into reckoning for the purpose.
7. The post held by the applicant's father has not yet been specified as equivalent or comparable to posts referred to in category II of the schedule as would appear from the letter dated 21.8.2003 of Shri Sudhir Kumar Srivastava, Special Secretary, U.P. Shasan addressed to Shri K.K. Sharma, Desk Officer, Department of Personnel & Training, Government of India, copy of which was endorsed to Joint Secretary, DOP&T, Government of India. It was made clear in the said letter that there had been no standard for evaluation in regard to equivalence of the posts held under the U.P. State Electricity Board or U.P. Power Corporation as Assistant Engineer or Executive Engineer. Therefore, the Competent Authority was not justified in rejecting the applicant's candidature for Civil Services as an OBC candidate on the ground that his father happened to be a direct recruit Assistant Engineer promoted to the post of Executive Engineer (Class-I post) before attending the age of 34 years.
8. The competent authority was also not justified in rejecting the applicant's candidature on the ground that his father had gross income of more than one lakh. In doing so, the income from service or agricultural land has been illegally clubbed. We are of the considered view that the employees in the Public Sector Undertakings would not fall under the category of 'creamy layer' unless income from other sources alone (without clubbing the income from service or agricultural land) exceeds the prescribed limited i.e. Rs. 1 lakh or above."
12. Shri Rakesh Sinha appearing for the Union of India submits that the judgement of the Tribunal is based on the letter of the Government of India dated 21.8.2003, which is factually incorrect and has been rectified by the Government of U.P. vide its letter dated 30.1.2004. The income of the applicant's father from service and agriculture was wrongly clubbed. In fact the income of applicant's father from salary alone exceeded Rs. 1 lacs for more than three consecutive years. He submits that the reasons given in the impugned order were not taken into consideration by the Tribunal. The Office Memorandum dated 8.9.1993 describes the category and classes to whom the rule of exclusion will apply. The sons and daughters of parents of whom only the husband is class II officers (direct recruitment) of the Central or State Services and equivalent/comparable posts in Public Sector Undertakings who gets into Class-I service at the age of 40 or earlier is not entitled to get the benefit of reservation available to OBC's. The letters of the Government of UP dated 13.1.2003, certifying that the officers of erstwhile UPSEB were enjoying the facilities of Class-I and Class-II and after abolition of the Board they were entitled to enjoy the facility in the Corporation, was not considered by the Tribunal. The Tribunal proceeded only on the basis that though the income of the applicant's father was more than Rs. 1 lac as provided in the explanation to Category-IV to the Schedule of the Office Memorandum dated 8.9.1993, the income from salaries or agricultural land was not liable to be clubbed for the purposes of determining whether a person comes within the ambit of creamy layer under VIth category i.e. "Income/Wealth Test". The Tribunal further found that it is no doubt true that in Category-VI of the schedule persons having gross annual income of Rs. 1 lac and above possess wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years and persons in Category-I and Categories II, III and V-A, who are not dis-entitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in category VI (A) or excluded, but income from salaries or agricultural land is not to be taken for reckoning for the purpose.
13. The Tribunal thereafter proceeded to consider the letter of the State Government dated 21.8.2003, in which it was made clear that there had been no standard for evaluation in respect of equivalence of the posts held under UPSEB or UP Power Corporation as Assistant Engineer or Executive Engineer, and thus the competent authority was not justified in rejecting applicant's candidature for Civil Services as OBC candidate on the ground that his father happened to be a direct recruited Assistant Engineer promoted to the post of Executive Engineer (Class-I) post before attaining the age of 34 years.
14. It is submitted by Shri Rakesh Sinha that acceptance of both the grounds by the Tribunal is incorrect. The applicant's father had income for several years of more than Rs. 1 lac; he had no income from agriculture and his service was equivalent to Class-I employee to which he was appointed and promoted before he attained the age of 40 years. The Tribunal committed gross error in allowing the claim petition.
15. We agree with the submissions of Shri Rakesh Sinha that the reasons given by the Tribunal are wholly fallacious. It was not denied by the applicant that his father Shri Sheo Charan Ram Yadav was directly appointed Assistant Engineer in UP State Electricity Board at the age of 34 years, and was thereafter promoted as Executive Engineer and that his gross income for last three consecutive years was more than Rs. 1 lac per year. There was no material or any basis for alleging that the income of applicant's father included income from agricultural land also. It was admitted from the income tax returns, that the income of applicant's father was more than Rs. 1 lac per annum for last three consecutive years, and there was absolutely no material nor any such fact was alleged that he had any agricultural income. The applicability of the explanation (i) under the Income/Wealth Test in Class VI was not attracted.
16. So far as the status of service of applicant's father is concerned the reliance upon the letter dated 2.8.2003 of the State Government sent by Shri Sudhir Kumar Srivastava, Special Secretary, U.P. Shasan addressed to Shri K.K. Sharma, Desk Officer, Department of Personnel and Training, Government of India was not correct. The applicant's father was an employee of UP State Electricity Board, which is a State Public Sector Undertaking falling in Category-II (C) employees in Public Sector Undertakings etc. The criteria enumerated in A and B in this category, namely the service category under the schedule is to apply mutatis mutandis to officers holding equivalent or comparable posts in PSUs, Banks, Insurance Organizations, Universities etc. pending the evaluation of the posts on equivalent or comparable basis in these institutions. The schedule provides that the criteria specified in Category-VI will apply to the officers in these institutions. Category VI provides for income/wealth test. As observed above since the applicant's father had gross income of more than Rs. 1 lac for last three consecutive years, he was clearly within the class of exclusion in the income/wealth test.
17. The Tribunal did not wait for the petitioners-respondents to file counter affidavit. Shri Arun Kumar Mishra, Principal Secretary, Government of UP had written a letter to Shri K.K. Sharma, Desk Officer, Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions on 30.1.2004, annexed as Annexure-7 to the writ petition, the content of which has not been denied, replying to the three queries made by letter of the Director of Department of Personnel and Training dated 31.3.2003. The three queries were clarified as follows:-
"(A) Shri Sheo Charan Ram father of Shri Rajesh Kumar Yadav was appointed to the post of Assistant Engineer in U.P. State Electricity Board on 29.10.1966. It may be clarified whether the post at that time was classified as Class II post or Class I post.
2. Status- The Uttar Pradesh State Electricity Board Service of Engineer consist-
(a) Class I posts of C.E., A.C.E., S.E., E.E. (SG) & E.E.
(b) Class II posts of A.E.E. & A.E.
2. Status - The Uttar Pradesh State Electricity Board Service of Engineer consist of the post of Chief Engineer (L-I), Chief Engineer (L-II), Superintending Engineer, Executive Engineer and Assistant Engineer.
(B) Shri Sheo Charan Ram was promoted to the post of Executive Engineer in U.P. State Electricity Board on 30.-06.1976. It may be clarified whether that post at that time was classified as Class I or Class II post.
(C) If the above posts are not classified as such, is it comparable or equivalent to a Class I or Class II posts under the State Government on the basis of pay scales, responsibilities, duties performed etc."
18. Shri Sheo Charan Ram had taken over charge as Assistant Engineer on 29.10.1966 in the erstwhile UP State Electricity Board. In this connection there is a reference in the letter of Energy Department, Government of India dated 21.8.2003 that the services of Shri Sheo Charan Ram were regulated by the U.P. State Electricity Board Engineers Service Regulations 1970, and that in Regulation 2 of these Regulations it was provided:- "2. Status- The Uttar Pradesh State Electricity Board Service of Engineer consist- (a) Class I posts of C.E., A.C.E., S.E., E.E. (SG) & E.E and (b) Class II posts of A.E.E. & A.E. From these regulations, it is clear that at the relevant time the post of Assistant Engineer was classified as Class II post. In the earlier letter of the State Government dated 15/16.9.2003, the information was given on the basis of Regulation 2 as it was amended on 26.12.1998. The amendment is not applicable to Shri Sheo Charan Ram inasmuch as he was promoted as Executive Engineer in the year 1976. The status of Shri Sheo Charan Ram was clarified in the letter of the State Government as follows:-
2. Status - The Uttar Pradesh State Electricity Board Service of Engineer consist of the post of Chief Engineer (L-I), Chief Engineer (L-II), Superintending Engineer, Executive Engineer and Assistant Engineer.
(B) Shri Sheo Charan Ram was promoted to the post of Executive Engineer in U.P. State Electricity Board on 30.-06.1976. It may be clarified whether that post at that time was classified as Class I or Class II post.
19. Shri Sheo Charan Ram was promoted from the post of Assistant Engineer to Executive Engineer on 30.6.1976. His services were regulated by the UP State Electricity Board Service Regulations 1970, and according to the then prevailing Regulation 2 of the said Regulations the post of Executive Engineer was classified as Class I post.
(C) If the above posts are not classified as such, is it comparable or equivalent to a Class I or Class II posts under the State Government on the basis of pay scales, responsibilities, duties performed etc."
20. The State Government clarified in this letter that though there was no standard prescribed for equivalence of Class-I and Class II posts of the State Government in the erstwhile UP State Electricity Board, nor it was legally possible as the employees of the Board were not given the status of gazetted officer, but even then taking into account the pay scale, duties and responsibilities/powers, it can be said that the post of Assistant Engineer in the State Government was equivalent to Class-II post and post of Executive Engineer was equivalent to Class-I post.
21. We find that though this letter dated 30.1.2004, was sent after the decision was taken by the Director of Department of Personnel and Training dated 8.1.2004 to exclude the petitioner, the basis and reasoning is the same as was accepted by the Central Government. It was clearly observed in the order of the Central Government that all employees of the Corporation were getting all benefits of Group-A and Group-B officers of the State Government. The posts of Superintending Engineer was equivalent to the post of Deputy General Manager in the pay scale and that the Superintending Engineer was getting all the benefits of Group-A officers. The State Government had categorically stated that Shri Sheo Charan Ram was Group-A officer. The Central Government did not commit any error in finding that the posts under U.P. Power Corporation were comparable with the posts under the State Government and so long Group-A and Group-B (Class-I and Class-II) officers of the U.P. Power Corporation were getting the same benefit as Group-A and Group-B officers; post of Assistant Engineer and Executive Engineer to which the father of the claimant-respondent was directly recruited and to which he was promoted before the age of 40 years was comparable to Class-II and Class-I post of the Government of UP. The applicant's father had drawn gross salary of Rs. 4, 49, 730/- in the year 1999-2000; Rs. 2, 26, 030/- in the year 1998-1999; and Rs. 2, 36, 880/- in the year 1997-98. No other income was disclosed by his father to be clubbed, for exclusion.
22. We may re-quote the observations of the Apex Court in Indra Sawhney and others vs. Union of India accepting the recommendations of the Expert Committee of the Government under the Chairmanship of Justice Prasad (Retd), which in turn led to the Office Memorandum dated 8.9.1993:-
"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 of the provisions meant for the said classes". The Expert Committee constituted for the Central Government for specifying "the criteria for identification of Socially advanced persons among the socially and educationally Backward classes" had held that "Before specification of the actual determinants is taken up, it will be useful, to indicate and explain what exactly 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. In the present social set-up, when the joint family system, particularly among the upper strata of society, has been breaking up, we are regarding the family to constitute husband, wife and children and on that basis applying the exclusion principle. In other words, even if a person, say Mr. "X", has become a Class I Officer, this will not deprive his brother and sister of the benefit of reservation on the basis that Mr. "X" has become a Class I Officer. The question as to whether the brother or sister of Mr. "X" will or will not get the benefit of reservation shall depend upon the status of their parents."
23. For the aforesaid reasons, we find that the Tribunal grossly erred in interfering with the impugned order passed by the Director of All India Services, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India, New Delhi, North Block, New Delhi dated 8.1.2004. The writ petition is allowed. Consequently we set aside the judgement of the Tribunal dated 17.12.2004. The original application was liable to be dismissed. The impugned order of the Central Government dated 8.1.2004 is upheld and confirmed.
Dt.26.5.2011 RKP/