Madras HC – P. Rajkumar vs Rajaji Vidyashram (2012 RTE case)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.07.2012

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.No.13330 of 2012
and
M.P.No.1 of 2012
Priyanka Rajkumar .. Petitioner

Vs.

1.Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
(affiliated to CBSE)
2.The Senior Principal,
Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
3.Vaidyanathan,
Director,
Bharatiya Vidya Bhavan,
No.18,20 and 22, East Mada Street,
Mylapore, Chennai-600 004. .. Respondents

This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 2 and 3 herein to consider and admit Sujay, R. for L.K.G. Class in the first respondent’s school on the basis of his application to L.K.G. Class, as it is the legal duty of the respondents to give effect to the provisions of the Right of Children to Free and Compulsory Education Act 2009 (Act 35 of 2009) and under Article 21 and 21A of the Constitution.

For Petitioner : Mr.S.Vadivelu

For Respondents : Mr.K.Viswanath for RR1 and 2

– – – –

ORDER

On behalf of the minor son Sujay, his mother has filed the present writ petition seeking for a direction to respondents 2 and 3 to consider and admit her son in the L.K.G. class in the first respondent school on the basis of her application as the legal duty was cast upon the respondents under the provisions of the Right of Children for Free and Compulsory Education Act, 2009 (for short RCE Act) as well as under Articles 21 and 21A of the Constitution.
2.This writ petition when it came up for admission on 09.05.2012, private notice was directed to be served on the respondents. On notice, a counter affidavit, dated 21.6.2012 has been filed by the second respondent. The third respondent has also filed a counter affidavit on the same day together with supporting documents. The petitioner filed a rejoinder after orders were reserved in this writ petition on 02.07.2012, thereby denying the chance of the counsel for the respondents to controvert some of the additional facts brought in the rejoinder. Hence with the objection of the counsel for the respondents, the rejoinder has been received by the court.
3.It is seen from the records that the petitioner is the mother of the minor child Sujay and was employed as an Implementation Manager in a Software Company with an annual income of Rs.12 lakhs. Her husband, the childs father, was employed as a Chief Technology Officer with an annual income of Rs.18 lakhs. According to them, they belonged to Mudaliar community which is a backward class community listed under the category of socially and economically backward class (SEBC) in the State of Tamil Nadu. They sent an application for admission of their child to the respondent school in the LKG section on 09.01.2012. The school was affiliated to the Central Board of Secondary Education (CBSE), New Delhi. Their right is claimed under Section 12(1)(c) of the RCE Act and its constitutionality was upheld by the Supreme Court vide its judgment in Society for Unaided Private Schools of Rajasthan Vs. Union of India and another reported in 2012 (4) Scale 272.
4.The petitioner after handing over the application, contacted respondents for an admission to her son. It was stated that her sons name may be included in the waiting list. But after several attempts to contact by the junior Advocate, they were assured of one seat in the LKG class. On 22.03.2012, the grandfather of the child had contacted the third respondent Director for getting a seat. But he was informed that the petitioners sons name was kept in the waiting list for admission in the LKG. On 10.04.2012 when he went to meet the Principal, the second respondent, he asked him to come at the end of the month saying that a lot was held in which his son was not lucky enough to be picked up. But he had no notice for the lot. Further the petitioner did not know whose names were placed in the lot and what was the distance of residences of such persons from the school and who decided the name of the person to pick up the lots. Whether all children were living within the 1 Km radius from the school so as to come within the neighbourhood school as set out under Section 6 of the RCE Act. It was also stated by the petitioner that the proviso to Section 12(1) of the RCE Act will apply to LKG admission also. Hence a direction was sought for.

5.In the counter affidavit filed by the third respondent, it was contended that the third respondent informed the grandfather of the child that if there was vacancy in the LKG, then the petitioners son will be considered for inclusion subject to fulfillment of all requirements as prescribed under law. It was stated that her son was denied admission as he was not selected in the random selection process held for backward and most backward classes category.
6.In the counter affidavit filed by the second respondent, it was contended that the petitioners sons application was received along with 2000 similar applications. The number of vacancies for LKG was only 216 for the academic year 2012-2013. Out of 216 seats, 54 seats were assigned for admission under 25% category under Section 12(1)(c). There were 91 applications under the RCE Act category, of which 5 belonged to Scheduled caste, 2 from the economically weaker section and 84 applications were received under the backward class and most backward class category. They have allotted two seats for economically weaker section and 5 seats for SC and ST. In respect of 47 seats meant for BC and MBC, there were 84 applications and that lots were held in the presence of two members of the School Managing Committee and Mr.Vetrivel, a MLA from Radhakrishna Nagar constituency. Pursuant to the lot and random selection made, seats have been filled up. As on 11.04.2012 there was no seat left. The school management had filled up seats more than the requirement of 25% reservation for disadvantaged group and weaker sections. The academic year had already commenced from 11.04.2012. As on 11.04.2012, the petitioner was fully aware of not granting of seat, but they have chosen to approach the court only on 06.05.2012 long after admissions were over.

7.In the rejoinder filed, it was contended that the petitioner had applied for admission both under the general category as well as reserved category. Nothing has been mentioned about the general category as their admission was not made only under the reserved category alone. The screening procedure under Section 2(o) means the method of selection for admission of a child in preference over another other than a random method. Random means not drawing of lots. It is not open to them to substitute the word random. The fact that inspite of waiting in front of the Principal room, they were not informed about drawing of lot. Drawing of lots without notice to the petitioner was not permissible. The right to education is a fundamental right.
8.This stand taken in the rejoinder goes diametrically opposite to the stand taken in the original affidavit. In paragraph 13 of the affidavit, it was averred as follows :
“13.I submit that I belong to Backward class. Consequently I am entitled for a seat in the 25% Reservation for the children belonging to disadvantaged group in the neighborhood under Clause-c of the above Section 12(1)………… So far as Tamilnadu is concerned for backward class applicant, there is no financial limit. As I belong to social and educational backward class, I am entitled to be considered for 25% seat reserved under section 12(1)(c) of the Act.”

9.Therefore, it is not open for the petitioner to turn back and contend that her child should be considered against the general category in the remaining 75% of seats to be filled up by the respondents. Whether she is coming under 25% quota or otherwise, it is the stand of the management that they have filled up all seats. Even in respect of 25% reserved category, lots have been conducted in the presence of two members of the School Managing Committee and the local M.L.A. There is no rule by which the petitioner should be given notice of lots to be conducted. The procedure adopted by the respondents school cannot be said to be contrary to the rules and notification issued by the State Government. The random method can also mean drawal of lots as no other procedure has been contemplated. Even otherwise, since the concept of neighborhood rule has been pressed into service, the Act has not been made it clear what is the neighborhood except stating the locating of the school under Section 6 by the local authority. If there are more than one school in the neighborhood, as to which school the child should be admitted is also not clear. But all these questions are academic and hence they are not gone into detail in this writ petition. It is suffice to state that the respondents school had adopted a transparent procedure in admitting the children more than 25% quota under Section 12(1)(c). Since the school has done something even beyond the Act, they are to be appreciated for the gesture shown. But the petitioner will have no case to question the admission procedure.
10.With reference to the admission for general category, it has never been the contention in the main writ petition. The present contention raised in the rejoinder is only an afterthought. As rightly contended by the respondents, long after the admission procedures were over, i.e., on 11.04.2012, the writ petition came to be filed only on 08.05.2012 after a month. At this stage, such an issue cannot be reopened at the instance of the petitioner. The other crucial contention raised by the petitioner’s counsel Mr.S.Vadivelu and as set out in paragraph 13 will have to be answered as the same question is likely to be come up for consideration in future.
11.The second contention of the petitioner was that the petitioner belonged to weaker section and is entitled to have the right of admission to the quota prescribed for the children belonged to weaker section and disadvantaged group in the neighborhood school in terms of Section 12(1)(c) of the RCE Act, 2009. According to her, the term “disadvantaged group” is defined under Section 2(d) and “weaker section” is defined under Section 2(e) , which reads as follows :

“(d)”child belonging to disadvantaged group” means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;

(e)”child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;” (Emphasis added)

12.Since the petitioner belonged to socially and economically backward class, notwithstanding the parents of the child having more than Rs.30 lakhs as their annual income, they cannot be denied admission under the category of disadvantaged group. It was further stated that insofar as the State of Tamil Nadu is concerned, there is no concept of creamy layer among the communities identified as social and economically backward classes. Hence the fact that they are earning more than Rs.30 lakhs cannot be used for denial of admission. The petitioner placed reliance upon an order passed by the State Government in G.O.Ms.No.9, School Education Department, dated 18.01.2011, wherein in respect of the method by which 25% quota can be filled up by the neighborhood school, it was stated that the children belonging to disadvantaged group and weaker section have to be admitted in any school wherein admission process started from Kinder Garden section. While doing so, they should not conduct either any test or oral interview. After receiving applications, in random selection method, 25% of students belonging to those group will have to be filled up.
13.By G.O.Ms.No.174, School Education Department, dated 08.11.2011, in respect of Section 2(d) and 2(e), it was specified as follows :
“Under clause (d) of section 2 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009), the Governor of Tamil Nadu hereby specifies that “Child belonging to disadvantaged group” means a child who is an Orphan, or affected with Human Immuno Deficiency Virus or a transgender or a child of a scavenger in addition to the definition given in the Right of Children to Free and Compulsory education Act 2009.

Under clause (e) of section 2 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009), the Governor of Tamil Nadu hereby specifies that “Child belonging to weaker section” means a child belonging to such parents or guardians whose annual income is lower than Rs.2,00,000/- (Rupees Two lakh only).” (Emphasis added)

14.Subsequently, the State Government had issued a further order in G.O.Ms.No.180, School Education Department, dated 15.11.2011, wherein it was ordered as follows :
“3.In the Government Order read above, Orders have been issued to notify “a child belonging to Disadvantaged Group” and “a child belonging to weaker section” as follows:

(i)”Child belonging to disadvantaged group” means a child who is an Orphan, or affected with Human Immuno Deficiency Virus or a transgender or a child of a scavenger in addition to the definition given in the Right of Children to Free and Compulsory education Act 2009 and (ii) “Child belonging to weaker section” means a child belonging to such parents or guardians whose annual income is lower than Rs.2,00,000/- (Rupees Two lakh only).

4.The Government after careful examination and have decided to reimburse expenditure to the unaided schools with respect to the 25% of children belonging to the disadvantaged group and weaker section categories at the rate of the expenditure incurred by the State Government in Government Schools for a child OR the fee fixed by the Committee constituted under the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Tamil Nadu Act 22 of 2009) WHICHEVER is LESS” and accordingly issued orders.”

It was contended that even in the absence of identifying the creamy layer for the socially and economically backwards classes, the petitioner will be entitled to get admission under the said category without regard to the economic ceiling.

15.It must be noted that the Supreme Court while upholding the right to fix the quota in respect of unaided non minority schools for children belonging to disadvantaged group and weaker sections, in Society for Unaided Private Schools of Rajasthan Vs. Union of India and another reported in 2012 (4) Scale 272 had upheld the right of the Parliament to prescribe the criteria only in terms of Article 19(6) of the Constitution and not in terms of Article 15 of the Constitution. In paragraph 10, the Supreme Court had observed as follows :
10…… Thus, after the commencement of the 2009 Act, by virtue of Section 12(1)(c) read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges. In T.M.A. Pai Foundation, this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as unreasonable. Such a condition would come within the principle of reasonableness in Article 19(6). Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects, viz., upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools. We also do not see any merit in the contention that Section 12(1)(c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to class I, to the extent of 25% of the strength of the class, of the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on free and compulsory education. Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence, Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14.”
(Emphasis added)

16.It must be noted that the law relating to reservation of seats in educational institutions is covered by Article 15(4) only as against the State within the meaning of Article 12 of the Constitution until the constitution was amended by the 93rd Amendment Act, 2005 with effect from 20.1.2006 introducing Article 15(5), which reads as follows :
“(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.”

17.The said Article came to be interpreted by the Supreme Court in Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi, reported in (2010) 8 SCC 49 and in paragraph 83, it was observed as follows:
“83.Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially or educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the article……”

18.Very recently, the Supreme Court in Indian Medical Association v. Union of India reported in (2011) 7 SCC 179 held that reservation excluding the creamy layer can be brought within the meaning of Article 15(5) as Article 15(5) does not offend the basic structure of the constitutional policy. In paragraphs 86 and 87, the Supreme Court had observed as follows :

“86.With respect to minority educational institutions, the imposition of reservations or the imposition of the duty to select non-minorities beyond a sprinkling would be an encroachment of freedom guaranteed by clause (1) of Article 30. With respect to non-minority unaided institutions, imposition of reservations was deemed to be an unreasonable restriction on the freedom to engage in the occupation of education pursuant to sub-clause (g) of clause (1) of Article 19. Inasmuch as clause (5) of Article 15 is now part of the Constitution, reservations by the State for Socially and Educationally Backward Classes without the creamy layer, and for the Scheduled Castes and the Scheduled Tribes are now constitutionally permissible categories of State imposition on non-minority educational institutions.
87.The status of constitutional permissibility removes the basis for finding reservations to be an unreasonable restriction in the freedom to select students only on the basis of merit with respect to all the seats in a non-minority unaided educational institution. Consequently, the unaided non-minority educational institutions would have to comply with the State mandated reservations, selecting students within the specified reservation categories on the basis of inter se merit.” (Emphasis added)

19.Before the introduction of the said provision, the law on the field was held by the decision of the Supreme Court in P.A. Inamdar v. State of Maharashtra reported in (2005) 6 SCC 537 and in paragraph 132, the Supreme Court had observed as follows :
“132.Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution……”

20.In the State of Tamil Nadu, the only law providing for reservation for backward classes, scheduled caste and scheduled tribes in educational institutions and appointments were governed by the Tamil Nadu Act 45 of 1994. Under the said Act, Section 4 provides for reservation of seats in educational institutions both for backward classes, MBC, SC and STs. The term “educational institution” is defined under Section 3(b), which reads as follows ;

(b)”educational institution” means,-

(i)any college or other educational institution, maintained by the State, or receiving aid out of the State funds, or affiliated to any university, established by law including an university, college and a constitutent college; or

(ii)any institute or training centre recognised or approved by the Government, with the object of preparing, training or guiding its students for any certificate, degree or diploma or other academic distinctions granted or conferred by any university, or authority established or approved in this behalf by the Government;”
(Emphasis added)

21.Even after the Tamil Nadu Act 45 of 1994, which reserved seats only in educational institutions maintained by the State or institutions receiving aid out of State funds, there is no reservation provided for the unaided educational institutions, whether minority or non minority. Subsequent to the introduction of Article 15(5) also, no special provision of law has been made by the State in respect of aided or unaided institutions.
22.The Supreme Court in the Society for Unaided Private Schools of Rajasthan’s case did not uphold the reservation under Section 12(1)(c) based upon Article 15(5) since reservation not only included the children belonging to disadvantaged group, but also belonging to weaker sections. The weaker section was defined as the child whose parents, or guardians, annual income is less than Rs.2 lakhs. If that was the intention of the State that the child whose parent’s or guardian’s annual income is less than Rs.2 lakhs, than it is unthinkable for the petitioner, whose family income is more than Rs.30 lakhs, to contend that without any ceiling limit, they should be admitted under the category of disadvantaged group.
23.The concept of creamy layer was evolved by the Supreme Court vide judgment in Indra Sawhney v. Union of India reported in 1992 Supp (3) SCC 217. The Supreme Court while answering question No.3(d) regarding creamy layer held in paragraphs 790 to 793 as follows :
(d) Means-test and creamy layer:
790. Means-test in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as the creamy layer argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class  as forward as any other forward class member  and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree17 almost every decision has accepted the validity of this submission.

791.On the other hand, the learned counsel for the States of Bihar, Tamil Nadu, Kerala and other counsel for respondents strongly oppose any such distinction. It is submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is not permissible to apply the economic criteria once again and sub-divide a backward class into two sub-categories. Counsel for the State of Tamil Nadu submitted further that at one stage (in July 1979) the State of Tamil Nadu did indeed prescribe such an income limit but had to delete it in view of the practical difficulties encountered and also in view of the representations received. In this behalf, the learned counsel invited our attention to Chapter 7-H (pages 60 to 62) of the Ambashankar Commission (Tamil Nadu Second Backward Classes Commission) Report. According to the respondents the argument of creamy layer is but a mere ruse, a trick, to deprive the backward classes of the benefit of reservations. It is submitted that no member of backward class has come forward with this plea and that it ill becomes the members of forward classes to raise this point. Strong reliance is placed upon the observations of Chinnappa Reddy, J in Vasanth Kumar9 to the following effect: (SCC p. 763, para 72)

 .. .. One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunate among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layer of society itself? Seats reserved for the backward classes are taken away by the top layers amongst them on the same principle of merit on which the unreserved seats are taken away by the top layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?

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 a 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. Difficulty, however, really lies in drawing the line  how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become  say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. 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/caste 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 members will make the class a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).

793.Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion  whether on the basis of income, extent of holding or otherwise  of creamy layer. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression backward class of citizens) for the purpose of Article 16(4). The impugned Office Memorandums dated August 13, 1990 and September 25, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the creamy layer in accordance with the criteria to be specified by the Government of India and not otherwise.” (Emphasis added)

24.But, when the Parliament by law had reserved 27% of seats for other backward communities by the Central Educational Institutions (Reservation in Admission) Act, 2006, it same came to be challenged before the Supreme Court. The Supreme Court in series of orders known as Ashoka Kumar Thakur case upheld the validity of the said provision. In Ashoka Kumar Thakur (8) v. Union of India reported in (2007) 4 SCC 361, the Supreme Court after referring to Article 15(5) held that the concept of creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It was a part of constitutional scheme. It held that even for reservation under Article 15(5), the creamy layer rule will have to be applied. In paragraphs 39 and 40, the Supreme Court had observed as follows :
“39.In Nair Service Society case3 it was noted as follows: (SCC pp. 27-28, paras 51-54)
51. Recently, a Constitution Bench of this Court in M. Nagaraj v. Union of India2 has reaffirmed the importance of the creamy layer principle in the scheme of equality under the Constitution. This Court held that the creamy layer principle was one of the important limits on State power under the equality clause enshrined under Articles 14 and 16 and any violation or dilution of the same would render the State action invalid. More precisely this Court held: (SCC p. 272, para 110)
110. As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.
52. This Court reiterated the limit on State power imposed by the creamy layer rule and the invalidity of any State action in violation of the same by concluding as follows: (M. Nagaraj case2, SCC p. 278, paras 122-23)
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the extent of reservation. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
53. This Court rationalised the creamy layer rule as a necessary bargain between the competing ends of caste based reservations and the principle of secularism. The Court opined: (M. Nagaraj case2, SCC pp. 277-78, para 120)
In Indra Sawhney1 this Court has, therefore, accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer.
54. This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the constitutional scheme.
(emphasis supplied)
40.It, therefore, needs no reiteration that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It is a part of constitutional scheme. Therefore these cases have to be examined in detail as to whether the stand of the Union of India that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation. That is more so because the lists relatable to Article 16(4) form the foundational base for Article 15(5).”

25.The Supreme Court subsequently in Avinash Singh Bagri v. Registrar, IIT Delhi reported in (2009) 8 SCC 220 held that the concept of creamy layer will not apply to reservation meant for scheduled castes and schedule tribes as they are separate classes by themselves. In paragraph 43, it was observed as follows :
“43.It is not in dispute that SCs and STs are a separate class by themselves and the creamy layer principle is not applicable to them. Article 46 of the Constitution of India enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice and all forms of exploitation…….”

26.The fact that the State of Tamil Nadu had not identified the creamy layer within the social economical backward classes is not a consolation for the petitioner to contend that notwithstanding the identification, they should be considered without any ceiling limit cannot be countenanced by this court. As the intention of the Act was delineated and the provisions of Section 12(1)(c) being upheld within the touchstone of Article 19(6), the contention raised by the petitioner to the contrary cannot be accepted. If it is accepted, it will do violence to the object of the RCE Act and the quota meant for the children belonging to the disadvantaged group and weaker sections will be cornered by persons claiming relief under the category of social and economical backward classes without the exclusion of creamy layers. The fact that weaker section was defined by the State as the annual income of parents or guardians is less than Rs.2 lakhs, in the absence of the State prescribing any creamy layer under the list of social economical backward classes, the same income ceiling should also apply to SEBC categories. Of course, such an income limit cannot be prescribed for SC and ST as noted already by the judgment of the Supreme Court. It is left to the State to specify the creamy layer under which certain members belonging to SEBC categories will be excluded from getting the benefit provided for the said class. Therefore, this court is not willing to accept the stand of the petitioner that even without any income ceiling, his child should be considered as the class belonging to disadvantaged group and should get the right of admission under 25% quota reserved for disadvantaged group and weaker sections. Hence the second contention must also fail.
27.In view of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.

11.07.2012
Index : Yes
Internet : Yes
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To
1.Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
(affiliated to CBSE)
2.The Senior Principal,
Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.

 

 

 
K.CHANDRU, J.

 

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ORDER IN
W.P.No.13330 of 2012

 

 

 

 

 

11.07.2012