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IN THE MATTER OF RESERVATION OF SEATS TO SOCIALLY

AND EDUCATIONALLY BACKWARD CLASSES FOR SHORT

“SEBC” FOR ADMISSION TO PROFESSIONAL DEGREE

COURSES IN THE EDUCATIONAL INSTITUTIONS OWNED/

CONTROLLED BY THE STATE GOVERNMENT.

The State Government by their order G.O.(Ms)

No.12/2013/BCDD dated 26-10-2013 have entrusted this

Commission with the responsibility to conduct an independent

study in the matter of reservation of seats for admission to

Professional Degree Courses in the educational institutions

owned or controlled by the State other than minority

institutions to SEBC communities on the basis of the principles

laid down by the Supreme Court in Ashoka Kumar Thakur Vs.

Union of India (2008) 6 SCC 1 as directed by the Hon’ble High

Court of Kerala in a time bound manner and to submit a report

to the Government for being implemented in the academic year

2014-15.

2. The brief facts which led to the decision of the Hon’ble

High Court in the common Judgement dated 7-8-2013 in W.P.

Nos. 11578 of 2013 and 29271 of 2012 in the matter of

reservation in admission to Medical and Engineering Courses

in the State owned and aided educational institutions in the

State may be stated thus: Petitioners 10 in number in W.P.

No.11578 0f 2013 are stated to be applicants for admission to

MBBS, BDS and Engineering degree courses. Similarly the

petitioners 3 in number in W.P. No. 29271 of 2012 are parents

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of children who intend to apply for the afore mentioned

professional courses in the Educational institutions owned or

controlled by the State Government. Their grievance is that in

view of the norms for reservation contained in clause 5.4.2 of

the prospectus issued by the Government since the annual

income of the parents together exceeds Rs. 4.5 lakh, they are

not eligible for reservation contemplated under Article 15 (4) of

the Constitution of India. In the circumstances the petitioners

sought for a direction to the Government to implement the

creamy layer principle in granting reservation to SEBC, in the

matter of admission of students to Professional Degree Courses

in accordance with the law laid down by the Supreme court in

Ashoka Kumar Thakurs case.

3. The prospectus for admission to professional degree

courses approved by the State Government and issued by the

Commissioner for Entrance Examinations for the year 2013,

clause 5.4.2 thereof provides reservation for SEBC

communities. The eligibility criterion fixed therein are (i) the

applicant must belong to a community specified in the SEBC

list and (ii) his/her family income from all sources taken

together shall not exceed Rs. 4.5 lakh. According to the

petitioners, following an income limit for giving benefit of

backward class reservation is totally against the principles

enunciated by the Supreme Court. In short the petitioners’

prayer in the Writ petitions was to implement the creamy layer

criterion fixed by the State Government in the matter of

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reservation in appointments or posts in the services under the

State contemplated under Article 16(4) of the Constitution of

India for reservation in admission to professional courses

available to SEBC communities also. The petitioners in

W.P.No.11578 of 2013 have produced a copy of G.O. (P)

No.81/09/SCSTDD dated 26-09-2009 which contains the creamy

layer criterion for exclusion of socially advanced

persons/sections (creamy layer) among the OBCs.

4. The State Government in the counter affidavit filed by

them took the stand that since creamy layer income limit fixed

by the Central Government on 04-10-2008 at Rs. 4.5 lakh

considering inflation and other factors, has been fixed as the

income limit in clause 5.4.2 of the prospectus, according to

them, the principle of excluding creamy layer has been

complied with.

5. The High court in the above background considered the

question whether the fixation of annual income at Rs. 4.5 lakh

by itself is enough for excluding creamy layer among the

backward classes. After elaborately considering the provisions

of Article 15, particularly sub clauses (4) and (5) thereof and the

decisions of the Supreme Court in Indra Sawhney V. Union of

India and Others [1992 Supp (3) SCC 217] and in Ashoka

Kumar Thakur V. Union of India [2008 (6) SCC 1] the court

addressed the question whether the State Government while

issuing the Prospectus has taken into consideration the

judgement of the Supreme Court for excluding creamy layer in

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the perspective as required to be done by the Supreme Court.

The court observed that there has to be a method for

excluding creamy layer and the income derived by

family is found to be an insufficient method to be

adopted in order to exclude creamy layer who are

not socially or educationally backward.

6. The court in paragraph 15 of the judgement observed as

follows: “The very concept of excluding such creamy layer is to

provide reservation to backward classes who are educationally

and socially backward. Income or employment of the parents

alone cannot be a criteria for deciding social and educational

backwardness. There may be instances where a family may

have sufficient income but they might be either socially or

educationally backward. Such backwardness can happen due to

different reasons and that depends upon the socio-economic

situation of a locality, or the districts of each State. In respect of

backward classes it is definitely for the Government to consider

their socio- economic and educational backwardness and try to

figure out a method to exclude the creamy layer from

reservation so that the most eligible SEBC would get the

benefit of reservation. In Ashoka Kumar Thakur’s case the

Supreme Court had directed the Union and the State

Governments to issue appropriate guidelines to identify the

“creamy layer” so that SEBCs are properly determined in

accordance with the guidelines issued by the Court. Only if, by

applying such principle, the candidates are not available, the

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State was directed to issue appropriate guidelines to effectuate

the implementation of the reservation purposefully.”

7. Further, in paragraph 16, it was observed thus: “The

petitioners have not highlighted any specific instance to

demonstrate as to how the exclusion based on income of a

family does not amount to actual exclusion of the creamy layer.

What is pointed out is regarding the class of employment the

parents were occupying and the income derived thereby. If both

the parents are employed, one can always think that they are

not economically backward. Probably the parents may or may

not be educationally backward, but the question is whether

they have the facility to give professional education to their

children. If both the parents are employed, can it be stated that

they don’t have the facility to provide education to their

children. Can it be said that the class of employment is not a

factor or is it that the financial position alone matters or is it

that the social backwardness is taken care of by excluding such

persons whose parents are employed and drawing salary more

than a particular limit. It has to enquire whether the socio-

economic situation in the State of Kerala is such that even with

the income of both the parents they are unable to provide

professional education to their children. The special

circumstance in the State is also to be considered depending

upon the requirement for professional education availability of

seats, etc. One another factor to be looked into the status to be

given to children of Non-resident Indians, who may not be

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showing any income in India and are socially and educationally

maintaining very high standards. These are all matters which

are required to be considered by the Government in arriving at

the principle of excluding creamy layer. It is to avoid a detailed

enquiry that the Supreme Court has directed the State

Governments to use a certain formula as a template and issue

guidelines.”

8. Again in para 17 it is stated: “As already indicated the

Government has fixed the income limit for excluding creamy

layer based on the manner in which Government of India had

given reservation to backward classes. There is nothing to

indicate that an in depth study had been conducted

by the Government in respect of excluding the

creamy layer from the reservation. (emphasis

supplied). Going by the principle laid down by the Supreme

Court the Government ought to have considered the socio-

economic features of the State not merely on the basis of the

income derived by various categories of persons but also their

socio-economic backwardness and different methods are to be

adopted for different categories of employees of the State and

other persons involved in different avocation or business,

agriculturists, planters etc. Such factors have to be weighed by

the Government in order to understand the real scope of

backwardness of a particular community and creamy layer

principle has to be evolved from the same. Apparently no such

study has been conducted in the matter”.

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9. In the concluding paragraph the Court directed the

Government “That the Government shall conduct an

independent study on the basis of the principles laid

down in Ashoka Kumar Takur’s case and shall evolve

a Scheme for excluding the creamy layer from the

backward classes, taking into consideration the

socio- economic and educational background of

different communities, including the income derived

by the families. Such study may be conducted and

shall be implemented during the academic year

2014-15.”

10. Thus there are two specific directions in the judgement to

be complied with by the Government.

i) Conduct an independent and indepth study on

the basis of the principles laid down by the

Supreme Court in Ashoka Kumar Thakur’s case and

evolve a scheme for excluding creamy layer from

the backward classes taking in to consideration the

socio-economic and educational background of

different communities, including the income

derived by the family. And

ii) The scheme so evolved must be implemented

during the academic year 2014- 2015 i.e., in the

immediately next academic year, 2014.

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11. Government have entrusted this task to this Commission

by their order G.O(MS).No 12/2013/BCDD dated 26-10-2013.

12. This Commission is the authority to deal with creamy

layer matters with respect to OBC communities by virtue of

section 5 of the Kerala State Backward Classes (Reservation of

Appointments or posts in the services under the State) Act,

1995 and G.O. (Ms) 7/2007/SCSTDD dated 07.02.2007. The very

purpose with which the creamy layer principle was introduced

by the Supreme Court in Indra Sawhney case was to exclude

socially advanced persons/ sections from the OBC communities.

This is the position so far as reservation of seats in admission to

educational institutions to SEBCs contemplated under Article

15(4) also. (See Ashoka Kumar Thakur V. Union of India

2008(6) SCC1). In short, where ever reservation is provided to

backward classes either under Article16(4) or under Article

15(4), if it is based on castes, then socially advanced persons/

sections (creamy layer ) among them have to be excluded. In

these circumstances, the Commission took serious note of the

directions in the judgement.

13. In this context one important aspect peculiar to Kerala

State, it is worthy to note, unlike in the Centre and in other

States, in the matter of reservation to backward classes under

Article 16(4) and 15(4) of the Constitution of India, there are

two lists, (i) the State OBC list- List III- Other Backward

Classes in the Kerala State- of the Schedule to Part I of the

KS&SSR,1958 for the purposes of reservation in appointments

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or posts in the services under the State And (ii) the SEBC list-

Annexure to G.O.(P)No.208/66/Edn. dated 2nd May 1966 for

reservation of seats in admission to Educational Institutions

owned or controlled by the State other than minority

institutions. It is also relevant to note in this context that for

the purposes of reservation to backward classes, in

appointments/posts in the civil services under the Government

of India and in admission of students contemplated under

Article 15(4) there is only one list, the Central OBC list, State-

wise prepared by the Government of India based on the

recommendations of MANDAL Commission.

14. The matter for study is regarding the exclusion of creamy

layer among the SEBCs for reservation of seats in admission to

Professional Degree courses for which the prospectus was

issued. Now, coming to the prospectus, it is seen that clause

5.4.2. therein was incorporated based on G.O.(P) No. 208/ 66/

Edn dated 2-5-1966 which in turn was issued based on the

recommendations of Kumara Pillai Commission in its report

dated 31-12-1965.

15. So far as reservation in admission to Professional Degree

courses for applicants belonging to SEBC the eligibility

criterion and the procedure to be followed are specified in G.O.

(P) No.208/1966/Edn dated 2-5-1966. For getting the

reservation benefits, the applicant must belong to a community

specified in the SEBC list and the income of the family from all

sources taken together shall not exceed Rs. 4.5 lakh.

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16. The Commission in its 321st sitting held on 30-10-2013 in

the context of review of creamy layer income limit and

Reservation in admission to Professional Degree Courses to

SEBC considered the matter thus:

“Item No. III Review of Creamy Layer income limit and

Reservation in admission to Professional Degree Course to

SEBC – Study Regarding (vide G.O (Ms) No. 12/2013/BCDD

dated 26/10/2013)

The Commission in its sitting held on 12/06/2013 decided

to initiate steps for review of the Creamy Layer income limit

contemplated in the Government Order dated 26/09/2009 and

intimated the same to Government. Government informed that

a proposal to enhance the income limit from 4.5 lakh to 6 lakh

is pending consideration before the Cabinet.

Since a detailed study with reference to the Kerala

situation regarding change in money value is required for the

Government to take a final decision in the matter the

Commission decided to proceed with the matter.

Similarly, it is decided to conduct a detailed study

regarding the Creamy Layer criterion to be applied in the

matter of reservation to SEBC for admission to Professional

Courses as requested by Government in G.O (Ms)

No. 12/2013/BCDD dated 26/10/2013 pursuant to the common

judgment dated 07/08/2013 of the High Court in W.P.C No.

11578 and 29271/2012. Since both these are having an integral

connection it is decided to deal with the matter together.

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It is also decided to:

1) Call for a copy of the Report of the National Commission for

Backward Classes, New Delhi in respect of the Review of the

Creamy Layer Income limit sent to the Central Government

based in which the Central Government have enhanced the

limit from 4.5 lakh to 6 lakh.

2) The disposals leading to the issuance of the G. O (P)

No. 208/1966/Edn dated 02/05/1966 and G. O (Ms)

No. 95/2008/SCSTDD dated 06/10/2008 and subsequent

Government orders on the subject.

3) Copy of the Act 5 of 2007- Central Act. ”

The extract of the minutes is enclosed.

17. The Commission by letter dated 31-10-2013 requested the

Principal Secretaries in the Backward Communities

Development Department and the Higher Education

Department to make available the following records to enable

the Commission for conducting the detailed study. The records

are:

i. The disposal leading to the issue of G.O.(P) No. 208/66/Edn

dated 2-5-1966, G.O.(MS) No.95/08/SCSTDD dated 6-10-

2008 and subsequent Government orders.

ii. Copies of writ Petition Nos. 29271/12 and 11578/13 of the

High Court of Kerala.

iii. Counter affidavits filed in these cases.

iv. Prospectus for admission to Professional courses for the

year 2013 and,

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v. Other connected records, if any.

18. The Commission again conducted sittings on 4-11-2013,

11-11-2013, 12-11-2013, 26-11-2013, 2-12-2013, 3-12-2013,

9-12-2013 and 17-12-2013 for this purpose. Official

representatives from the Backward Communities Development

Department, the Higher Education Department and the

Commissionerate for Entrance Examinations were requested to

attend the sittings of the Commission with the above mentioned

records. They attended the sittings held on 11-11-2003,

26-11-2013 and 9-12-2013 and furnished all those records

except the disposal leading to the issue of G.O. (P) No.

208/66/Edn dated 2-5-1966 which contains Kumara Pillai

Commission Report dated 31-12-1965 and Act 5 of 2007 –

Central Act. They could not locate the files leading to the issue

of the Government order dated 2-5-1966 being more than 45

years old. However with some efforts they could find the Report

in the Website of the Legislature Secretariat. When this was

intimated to the Commission office the voluminous report was

down loaded by it from the Site.

19. The Commission also collected the following records:

(i) Report of the Backward Classes Reservation

Commission (Nettoor P. Damodharan Commisssion

Report)

(ii) The creamy layer guidelines recommended by the

Expert Committee headed by Justice K.J. Joseph.

(iii) Justice K.K. Narendran Commission Report on

Creamy Layer-2001.

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(iv) Justice Rajendra Babu Commission report, 2008

(v) Cost inflation Index released by CBDT

(vi) All India Consumer Price Index/ Cost of living index

(vii) Government order G.O.(P) No. 208/1966/Edn dated

2-5-1966 and;

(viii) NCBC Report on review of the existing ceiling of

income/ wealth to determine the Creamy Layer.

Further modalities to be adopted such as calling for the

representations of the public/ Organisations, obtaining oral

evidence, field survey etc. were also chalked out.

20. We have gone through the Government order dated 2-5-

1966 and the Kumara Pillai Commission Report. Government

have been reserving seats in Medical, Engineering and other

colleges for students belonging to Backward Classes. In the

year 1963 the orders regarding reservation of seats in Medical

and Engineering colleges were the subject matter of writ

petitions- (O.P.Nos.1266,1271,1290, 1294, 1360 &1407 of 1963)

before the High Court of Kerala. The main challenge in the

said writ Petitions was against a Government order dated 15-6-

1957 relating to “Professional Colleges-admission- reservation

of seats for Backward Communities and Scheduled Castes”.

The Association of Indian Union Muslim Legue and Akhila

Kerala Ezhava Convention requested for giving legitimate

representation “due to their communities”. The Government,

stating that they have examined the question, ordered that 35%

of the seats be reserved for Backward Classes and 5% for

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Scheduled Castes and Tribes in the Professional Colleges. By

another order dated 28 June 1957 the Government modified the

earlier order dated 15-6-1957 adopting the principle of sub

rotation among the backward classes distributing the 35%

reservation in the following manner.

(1) Ezhava 13%

(2) Muslims 9%

(3) Latin Catholics 3%

(4) Backward Christians 1%

(5) Other Hindus 9%

The petitioners in those cases contended that these orders are

issued in favour of backward classes simply based on castes

without even properly identifying the backward classes in

whose favour the reservation is made. The single bench held

that the reservation of 35% seats in favour of backward classes

and the sub rotation provided in the Government orders cannot

be enforced against the petitioners. The single bench judgement

is dated 23-8- 1963. (K. Jacob Mathew & Others V. State of

Kerala & Others 1963 KLT 783). The High Court, in appeal

filed by the State, allowed the appeals with certain

modifications. The court however directed that the State

Government should immediately embark up on a fact finding

enquiry into matters that are relevant and frame appropriate

orders, on an objective basis in the light of that enquiry. It is in

pursuance of the above directions Government constituted a

Commission headed by Sri. G. Kumara Pillai, Retired High

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Court Judge with four other Members. The Commission

assumed office on 14-07-1964 and submitted its final report on

31-12-1965.

21. The issue referred to the Commission was as follows:

“The Commission shall enquire in to the social and

educational conditions of the people and report on what

sections of the people in the State of Kerala ( other than

Scheduled Castes and Scheduled Tribes) should be treated as

socially and educationally backward and therefore deserving of

special treatment by way of reservation of seats in educational

institutions. They shall also recommend what the quantum of

such reservation should be and the period during which it may

remain in force.”

22. The Commission, it is seen, apart from considering the

historical background leading to the appointment of the

Commission, the objectives of Article 15(4) of the Constitution

of India, the nature of backwardness under the said Article, the

general principles indicated by the Supreme Court for

ascertainment of social backwardness, caste disabilities,

general principles regarding educational backwardness,

considered the gist of the existing Government orders regarding

reservation of seats in Medical and Engineering courses, the list

of Other Backward Communities/Classes maintained by the

Department of Harijan Welfare (D.H.W. list), PSC list (The

OBC list-List III of the Schedule to Part I of the KS&SSR,1958),

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the practice of following the DHW list for purposes of admission

to Medical and Agricultural Colleges-Not warranted by

Government Memorandum D.D is 14141/57/EHD dated 5-7-

1957, Social Backwardness, the various principles to be applied,

test for educational backwardness with reference to the number

of graduates in a community, Lower and upper primary stages,

Literacy test, State average of the students in Std X, number of

persons per thousand in a community who have not completed

primary education, Fall out between the number of students in

Std I and X and the total absence of any student in the

community. In Chapter IV socially and educationally backward

classes are specified (Appendix VIII to the Report). For that

statistics relating to admission in the Medical and Engineering

Colleges and Polytechnics were obtained. The details of

Ezhavas, Muslims, Latin Catholics, Anglo Indians and other

Backward Christians such as population, caste disability, their

social and educational backwardness etc. were considered,

Other Backward Hindus were specified, differences between

SEBC list prepared by the Commission (Appendix VIII) and

PSC and D.H.W. lists were considered, 57 communities in the

D.H.W. list were found not existing and omitted, 12 OBC

communities are not included in the SEBC list, 15 communities

not found either in the D.H.W. list or in the OBC list were

included. And finally it is observed that groups of persons other

than those specified in Appendix VIII shall not be treated as

socially and educationally backward classes. Appendix II and

III of the Report would show that 93 memorandums had been

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received, 347 persons gave evidence before the Commission. All

these would show the nature and volume of work undertaken

by the Commission. The Commission ultimately prepared the

Report and submitted to the Government.

23. The answer to the first part of the reference was contained

in paragraphs 14, 20 and29 of the report. It is summarised in

the Government order G.O.(P) 208/66/Edn. dated 2nd May 1996

as Recommendation No.1 thus:

“Only citizens who are members of families which have an

aggregate income (i.e., income of all members in the family from

all sources taken together) of less than Rs.4200/-, (Rupees Four

Thousand Two Hundred Only) per annum and which belong to

the Castes and Communities mentioned in Appendix VIII

constitute socially and educationally backward classes for the

purposes of Art. 15(4). There is no justification in including in

the socially and educationally backward classes of citizens, any

group of persons other than those specified in Appendix VIII.

By the term ‘family’ is meant the applicant seeking admission

and his parents. If either of his parents is dead, and a grant

parent is the legal guardian, such guardian also will include in

the term ‘family’”.

24. The Government accepted this recommendation with

small modifications as follows:

“Government accept the above recommendations subject to the

modification that only citizens who are members of families

which have an aggregate income (i.e., income of all members of

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the family from all sources taken together) of less than Rs.6000

(Rupees Six Thousand Only) per annum and which belong to

the castes and communities mentioned in the Annexure to this

G.O. will constitute socially and educationally backward classes

for purposes of Art 15(4).” Here it may be noted that the

Government have raised the income limit of Rs. 4200/- (Rupees

Four Thousand Two Hundred Only) fixed by the Commission to

Rs. 6000/- (Rupees Six Thousand Only) having regard to the

lapse of time in between the collection of data for the report, the

rise in the cost of living, the income tax exemption limit and the

current cost of maintenance of a student in a professional or

technical institution.

25. The answer to the latter part of the reference in relation

to the period during which the reservation may remain in force

is contained in Recommendation No. 8 as follows:

“(viii) Recommendation No. 8

The reservation of seats in favour of the socially and

educationally backward classes in the Medical, Engineering

(including Polytechnic), Agricultural and Veterinary Colleges,

and for post graduate courses in the Arts and Science Colleges

and the allocation of seats between the Malabar and T.C areas

may be for a period of 10 years.

(Vide paras 31, 32 and 33 of the report)

Government accept the recommendation. The position will be

reviewed after 10 (ten) years.”

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26. Though there were total 14 recommendations in the

report and the Government order dated 02-05-1966 covers all of

them we, for the time being, are not dealing with the other

recommendations.

27. The Annexure to the Government order dated 02-05-1966

is a list of SEBCs eligible for being considered for reservation of

seats in admission to professional courses in the State. It is a

list of 91 communities. This list is seen prepared after

considering two lists, one maintained by the Harijan Welfare

Department and the other the State OBC list, (PSC list as the

Commission calls it). The Harijan Welfare Department’s list,

it is seen, is composed of Other Eligible Communities 16, Other

Backward Communities/Classes of Travancore- Cochin area

40 and of Malabar area 152 of the Kerala State.

The Commission has excluded 57 communities from the Harijan

Welfare Department list and 12 OBC communities from the

list of SEBCs prepared by it. Further 15 more communities

are included as being OEC communities. Paragraph 28

in chapter IV of the report states the reasons for excluding

the communities from the SEBC list. There is an observation

in the report that no more groups of persons other than

those specified in Appendix VIII (Annexure to the Government

order) shall be included. Thus these communities

are not the same as those included in the State

OBC list. The State OBC list and the SEBC list are attached

for easy reference. Though there were 91 communities in the

SEBC list now there are only 81 communities in the said list. A

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close study would show that those communities are now

included in the SC/ST list subsequently by Parliamentary

amendments.

28. Let us now come to the two directions issued by the High

Court mentioned in para 10 above. As already noted

Government order G.O(P) No. 208/66/Edn dated 2-5-1966

governing eligibility criterion for reservation of seats to SEBC

communities in admission to Professional Degree courses was

issued by the Government accepting the recommendations of

Kumara Pillai Commission. The materials and evidence

considered by the Commission for making the recommendations

were with reference to the period of study ie. from 14-07-1966 to

31-12-1965. Forty Eight years have elapsed since then. The

social, educational and economic conditions of the castes and

communities in Kerala, no doubt, have undergone substantial

changes. Though there were studies in regard to Other

Backward Communities by Nettoor P. Damodharan

Commission in the year 1970 and Justice Narendran

Commission in the year 2000 and about creamy layer

among the Backward classes by Justice Joseph

Committee, Justice Narendran Commission in the

year 2001 and by Justice Rajendra Babu commission

in the year 2008 so far there is no subsequent study

by any Commission or authority about the SEBC

communities for the purpose of reservation of seats

in admission to Professional Degree Courses for the

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last 48 years. The Government in the Order dated 2-5-1966

while accepting the recommendation of Kumara Pillai

Commission that reservation of seats in favour of Socially and

Educationally Backward Classes for Professional Degree

Courses and Post Graduate Degree Courses may be for a period

of 10 years observed that the position will be reviewed

after 10 years. Further the Supreme Court itself in Ashoka

Kumar Thakur case (2008(6) SCC1) held that review should be

made at the end of 5 years. The Government order of 2-5-1966

even now holds the field. Even after the decision of the nine

judges bench of the Supreme Court in Indra Sawhney case

rendered in the year 1992 and in Ashoka Kumar Thakur case

rendered in the year 2008 and the principles laid down therein

the position remains. It is in this Context the directions in the

judgement of the High Court has to be viewed. The Court felt

that an in depth study in an independent manner is required in

regard to the eligibility criterion – revision of the SEBC list and

the criterion to identify the creamy layer among them. In this

view of the matter this Commission is expected to undertake a

detailed study covering both the aspects on the lines of the

study conducted by Kumara Pillai Commission with reference

to the relevant materials as on date and in the light of the

principles laid down by the Supreme Court in the two decisions

mentioned above.

29. The second direction of the High Court, as already noted,

is to implement the scheme so evolved for the academic year

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2014-15. In this context it is pertinent to the note the following

circumstances.

The prospectus for admission to the Professional Degree

Courses (Medical, Agriculture, Veterinary, Fisheries,

Engineering and Architecture Courses) has to be prepared by

the Commissioner for Entrance Examination and got it

approved by the Government at the latest by the end of

December 2013 (The date of approval of the prospectus for the

years 2012 and 2013 are 28-12-2011 and 18-12-2012

respectively). Moreover the officials who represented the Higher

Education Department and the Commissionerate for Entrance

Examinations on 09.12.2013 had informed the Commission that

there is a direction by the Supreme Court that admissions to

the above Courses must be completed by August 2014. The

reservation rules have to be incorporated in the prospectus. In

view of the above circumstances, a full fledged study report as

contemplated by the High Court cannot be got ready for

implementation in the academic year 2014-15 in spite of

earnest efforts being made by the Commission. Hence it may

not be possible for the Government to comply with the second

direction in the manner directed by the High Court at present.

30. The Commission, however, is of the view that this

situation may not deprive the SEBC communities of the benefit

of reservation contemplated under Article 15 (4) and (5) of the

Constitution of India for the academic year 2014-15, if possible.

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31. Let us consider the possibility of granting relief to the

SEBC communities as an ad hoc measure pending issuance of a

regular Government order after receipt of a detailed study

report from this Commission in the matter of reservation in

admission to Professional Degree Courses in the Educational

Institutions owned or controlled by the State Government other

than minority institutions.

32. In this context it is relevant to note that the Government

of India under Article 340 of the Constitution of India

constituted the second Backward Classes Commission on

January 1979 under the chairmanship of Sri. B.P. Mandal in

whose name the Commission and its report is popularly known.

33. The terms of reference of Mandal Commission were:

(i) To determine the criteria for defining the socially and

educationally backward classes

(ii) To recommend steps to be taken for the advancement of

the socially and educationally backward classes of citizens so

identified

(iii) To examine the desirability or otherwise of making

provision for the reservation of appointments or posts in favour

of backward classes of citizens which are not adequately

represented in public services and posts in connection with the

affairs of the union or of any State and

24

(iv) To present to the President a report setting out the facts

as found by them and making such recommendations as they

think proper.

34. The Commission submitted its report on 31-12-1980. The

Government of India, basing on the recommendations of the

Mandal Commission, issued Office Memorandum

No. 36012/31/90-Estt (SCT) dated 13th August, 1990 purporting

to extent reservation for socially and educationally backward

classes in its services w.e.f. August 7, 1990. It reserved 27% of

the seats for SEBCs in addition to those already reserved for

SC/ST. There was change of Government in the Centre and the

new Government also indicated its intention to implement the

OM dated13-08-1990 with small modifications for which

another OM No. 36012/31/90-Estt (SCT) dated 25-09-1991 was

issued introducing economic criterion in grant of reservation by

giving preference to the poorer sections of the SEBCs in the

27% quota and reserving another 10% of the vacancies in the

civil services for other economically backward sections not

covered by any of the existing scheme of reservation which was

explained to extend to the poorest among the higher castes or

religion also. The aforesaid two Government orders were

subject matter of a nine judges Bench decision of the Supreme

Court in Indra Sawhney v. Union of India 1992 Supp (3) SCC

217. The majority decision (6to 3) was rendered by Justice

Jeevan Reddy, (Paragraphs 639 to 865 at pages 631 to772) of

the judgement.

25

35. In paragraph 667 of the judgement it is noted that the

Mandal Commission in paragraph 11.23 (page 52) of the Report

evolved eleven indicators “criteria” for determining social and

educational backwardness. These 11 Indicators were grouped

under three broad heads, i.e., Social, Educational and

Economic. In paragraph 11.25, it is stated that “it will be seen

from the values given to each indicator, the total score adds up

to 22. All these 11 indicators were applied to all the castes

covered by the survey for a particular State. As a result of this

application, all castes which had a score of 50% (i.e., 11 points)

or above were listed as socially and educationally backward and

the rest were treated as ‘advanced’. It is also noted that in

paragraph 12.7 it is stated that the Commission has adopted a

multiple approach for the preparation of comprehensive lists of

Other Backward Classes for all the States and Union

territories. The main sources examined for the preparation of

these lists are (i) Socio- educational field survey (ii) Census

Report of 1961 (iii) Personal knowledge gained through

extensive touring of the country and receipt of voluminous

public evidences and (iv) Lists of OBCs notified by various

State Governments. Further in paragraph 671 it is noted that

volume VI contains the State-wise list of OBCs as identified by

the Commission.

36. The Office Memorandum dated August 13, 1990, Subject:

Recommendations of the second Backward Classes Commission

(Mandal Report)- Reservation for Socially and Educationally

Backward Classes in Services under the Government of India.

26

Paragraph 2 of the Office Memorandum reads, “Government

have carefully considered the report and the recommendations

of the Commission in the present context responding the

benefits to be extended to the socially and educationally

backward classes as opined by the Commission and are of the

clear view that at the outset certain weight age has to be

provided to such classes in the services of the Union and their

public undertakings”. Accordingly orders are issued as follows:

i. 27% of the vacancies in civil posts and services under the

Government of India shall be reserved for SEBC.

ii. The SEBC would comprise in the first phase the castes

and communities which are common to both the lists in

the report of the Mandal Commission and the State

Governments’ lists. A list of such castes/communities is

being issued separately.

37. This Office Memorandum was stayed by the Supreme

Court. Later another Office Memorandum dated 25-09-1991

modifying the earlier Memorandum dated 13-08-1990 was

issued. Modification was that within the 27% reserved for

SEBCs preference shall be given to candidates belonging to the

poorer sections of the SEBCs and 10% of the vacancies in civil

posts and services under the Government of India shall be

reserved for other economically backward sections of the people

who are not covered by any of the existing schemes of

reservation. The second Memorandum was also challenged. The

27

matter was referred to a special bench of nine judges “to finally

settle the legal position relating to reservations”.

38. The directions of the High Court, as we have already

noted, is to conduct an independent study on the basis of the

principles laid down in Ashoka Kumar Takur’s case and to

evolve a scheme for excluding creamy layer from the backward

classes taking in to consideration the socio-economic and

educational background of different communities, including the

income derived by the family. This direction, it must be noted,

was issued based on the reliefs sought for by the petitioners

viz., the implementation of the creamy layer criterion contained

in the Government order G.O. (P) No.81/09/SCSTDD dated 26-

09-2009 viz a viz clause 5.4.2 of the Prospectus. The

requirements, as already noted, are that the applicant must

belong to a community included in the SEBC list and the family

income shall not exceed Rs. 4.5 lakhs. It is in this context the

High Court observed that the fixation of income limit for the

SEBCs is not enough for excluding the socially advanced

persons/ section among them. The socio- economic and

educational conditions including the income must be considered

for excluding the creamy layer among the SEBCs.

39. The High Court with reference to the decisions of the

Supreme Court in Indra Sawhney v. Union of India and Ashok

Kumar Thakur’s cases directed consideration of various factors

mentioned in paragraphs 15, 16 and 17 of the judgement in

fixing the creamy layer criterion for exclusion of socially

advanced persons/sections from the SEBCs for the purposes of

28

Art. 15(4). It is important to note here that the court in that

context observed that “it is to avoid a detailed enquiry that the

Supreme Court has directed the State Governments to use a

certain formula as a template and issue guidelines.”

40. Now let us see the principles stated by the Supreme Court

in Indra Sawhney V. Union of India in the context of Art 16(4).

In paragraph 786 of the judgement the court specifically

addressed the question whether the backwardness in Art. 16(4)

should be both social and educational. It was noted that in

Janki Prasad Parimoo’s case, (1973)1 SCC420, a constitution

bench held that “it is now settled that the expression ‘backward

class of citizens’ in Art 16(4) means the same thing as the

expression ‘any socially and educationally backward class of

citizens’ in Art 15(4). In order to qualify for being called a

‘backward class citizen’ he must be a member of a socially and

educationally backward class. It is social and educational

backwardness of a class which is material for the purposes of

both Articles 15(4) and 16 (4)”. The nine judge’s bench observed

that “the said assumption has no basis. Though Art 340 does

employ the expression “socially and educationally backward

class” yet the expression does not find a place in Art. 16(4).

Certain classes which may not qualify for Art. 15(4) may qualify

for Art. 16(4). The SCBC’s referred to in Art. 340 is only of the

categories for whom Art. 16(4) were enacted. When speaking of

reservation in appointment/posts in State services, insisting

upon educational backwardness may not be quite appropriate.

The Court finally observed that backwardness contemplated by

29

Art. 16(4) is mainly social backwardness. It would not be correct

to say that ‘backwardness under Art. 16(4) should be both social

and educational.’

41. In paragraphs 789 it is observed “the SEBC’s referred to

by the impugned memorandums are undoubtedly ‘backward

class of citizens’ within the meaning of Art. 16(4)”.

42. The guiding principles for determination of creamy layer

are contained in paragraph 792 of the judgment. The relevant

portions are extracted below.

“792. In our opinion, it is not a question of permissibility or

desirability of such test but one of proper and more

appropriate identification of a class --- a backward class.

The very concept of a class denotes a number of persons

having certain common traits which distinguish them from

the others. In a backward class under clause (4) of Article

16, if the connecting link is the social backwardness, it

should broadly be the same in given class. If some of the

members are far too advanced socially (which in the context,

necessarily means economically and, may also mean

educationally) the connecting thread between them and the

remaining class snaps. They would be misfits in the class.

After excluding them alone, would the class be a compact

class. In fact, such exclusion benefits the truly backward.

.............

30

The basis of exclusion should not merely be economic,

unless, of course, the economic advancement is so high that it

necessarily means social advancement. .............. While the

income of a person can be taken as a measure of his social

advancement, the limit to be prescribed should not be such as to

result in taking away with one hand what is given with the

other. The income limit must be such as to mean and signify

social advancement. At the same time, it must be recognised that

there are certain positions, the occupants of which can be treated

as socially advanced without any further enquiry. For example,

if a member of a designated backward class becomes a member

of IAS or IPS or any other All India Service, his status is society

(social status) rises; he is no longer socially disadvantaged. His

children get full opportunity to realise their potential. They are

in no way handicapped in the race of life. His salary is also such

that he is above want. It is but logical that in such a situation,

his children are not given the benefit of reservation. For by

giving them the benefit of reservation, other disadvantaged

members of that backward class may be deprived of that benefit.

It is then argued for the respondents that ‘one swallow doesn’t

make the summer’, and that merely because a few members of a

caste or class become socially advanced, the class/castes as such

does not cease to be backward. It is pointed out that clause (4) of

Article 16 aims at group backwardness and not individual

backwardness. While we agree that clause (4) aims at group

backwardness, we feel that exclusion of such socially advanced

31

members will make the ‘class’ a truly backward class and would

more appropriately serve the purpose and object of clause (4).”

The Court in paragraph 793 directed the government of

India to specify the basis of exclusion- whether on the basis of

income, extent of holding or otherwise- of creamy layer. On such

specification persons falling within the net of exclusionary rule

shall cease to be the members of Other Backward Classes......

The impugned office memorandums shall be implemented

subject only to such specifications and exclusion of socially

advanced persons from the backward classes contemplated by

the said OM.

43. In paragraph 796-797, summarising the discussions, the

Court observed: “Neither the Constitution nor the law prescribed

the procedure or method of identification of backward classes.

Nor is it possible or advisable for the Court to lay down any such

procedure or method. It must be left to the authority appointed to

identify. It can adopt such method/procedure as it thinks

convenient and so long as its survey covers the entire populace,

no objection can be taken to it.”

44. Pursuant to the direction contained in para 793 of the

judgement Government of India appointed an Expert

Committee to recommend the criteria for exclusion of socially

advanced persons/sections from the benefits of reservation for

Other Backward Classes in civil posts and services under the

Government of India. Based on the recommendations of the

Expert Committee Government of India issued Office

32

Memorandum No.36012/22/93-Estt. (SCT) dated 08-09-1993

modifying Office Memorandum dated 13-08-1990. The Schedule

to the O.M. contains the categories to whom rule of exclusion

will apply.

45. Article 15 of the Constitution was amended by the

Constitution 93rd Amendment Act, 2005 whereby Article 15 (5)

was inserted. The purpose with which this amendment was

made, as stated in the objects and reasons, is to promote the

educational advancement of the socially and educationally

backward classes of citizens, i.e., the OBCs or the SCs and STs

in matters of admission of students belonging to these

categories in unaided educational institutions other than

minority Educational Institutions referred to in clause (1) of

Article 30 of the Constitution.

46. After the insertion of Art15 (5) in 2005 Parliament passed

the Central Educational Institutions (Reservation in

Admission) Act, 2006 (Act 5 of 2007). Section 3 of the Act

provides for reservation of 15% seats for SC, 71/2% for ST and

27% for Other Backward Classes in Central Educational

Institutions. Section 2(g) defines “Other Backward Classes’

means the class or classes of citizens who are socially and

educationally backward, and are so determined by the Central

Government.” Both the Constitution 93rd amendment Act, 2005

and Act 5 of 2007 were challenged before the Supreme Court

under Art 32 in Ashoka Kumar Thakur’s case. This was

considered by a constitution bench presided by the Hon’ble

Chief Justice. The majority judgement was rendered by K.G.

33

Balakrishnan CJ. The court upheld both the Constitution 93rd

Amendment Act, 2005 inserting Art 15(5)and Act 5 of 2007 with

small modifications as follows: Question whether the

Constitution (Ninety- third Amendment) Act, 2005 would be

constitutionally valid or not so far as “private unaided”

educational institutions are concerned, is left open to be decided

in appropriate case. Creamy layer is to be excluded from

SEBCs. The identification of SEBCs will not be complete and

without the exclusion of “creamy layer” such identification may

not be valid under Article 15(1).of the Constitution.

47. In paragraph 227 of the judgement it is observed as

follows: “The parameters contained in the Office Memorandum

issued by the Government of India, Ministry of Personnel,

Public Grievances and Pensions (Department of Personnel and

Training) on 8-9-1993 may be applied. And the definition of

“Other Backward Classes” under section 2(g) of Act 5 of 2007

should be deemed to mean class or classes of citizens who are

socially and educationally backward, and so determined by the

Central Government; and if the determination is with reference

to caste, then the backward class shall be after excluding the

creamy layer”. It is also observed in paragraph 231 that though

no time limit has been fixed for its operation in Act 5 of 2007 a

review can be made after a period of 10 years.

48. Referring to the Schedule to the Government Office

Memorandum dated 9-8-1993 extracted in paragraph 174 it is

stated in paragraph 175 “we make it clear that same principle

of determining the creamy layer for providing 27% reservation

34

for backward classes for appointment need not be strictly

followed in case of reservation envisaged under article 15(5) of

the Constitution. If a strict income restriction is made for

identifying the creamy layer, those who are left in the

particular caste may not be able to have a sufficient number of

candidates for getting admission in the Central institutions as

per Act 5 of 2007. The Government can make a relaxation to

some extent so that sufficient number of candidates may be

available for the purpose of filling up the 27% reservation. It is

for the Union Government and the State Governments to issue

appropriate guidelines to identify the creamy layer so that

SEBCs are properly determined in accordance with the

guidelines given by this court. If even by applying this

principle, still the candidates are not available, the State can

issue appropriate guidelines to effectuate the implementation of

the reservation purposefully.”