(Prayer: This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the impugned order dated 28.10.2024 passed by the learned Single Judge in Writ Petition No.25063/2024 (GM-CC) & etc.

This CCC is filed under Sections 11 and 12 of the Contempt of Courts Act praying to punish the accused for the willful disobedience of the order dated 28.10.2024 passed in W.P.No. 25063/2024 (GM-CC) by the learned Single Judge Of This Hon'ble Court and grant such other and further reliefs in the facts and circumstances of the case including the costs in the interest of justice and equity.)

CAV Judgment

Vibhu Bakhru ,CJ.

1. The appellants have filed the present intra-court appeal impugning an order dated 28.10.2024 [impugned order] passed by the learned Single Judge of this Court in W.P.No.25063/2024 (GM-CC).

2. The respondent had filed the said petition impugning an order dated 06.03.2024 passed by appellant No.2 - District Caste and Income Verification Committee [the Committee] - rejecting the respondent's claim for reservation under 'Kuruba Caste' as void. The Committee had concluded that the respondent falls under 'creamy layer' and therefore, is not entitled to claim reservation under Category-II(A) of the Government Order classifying the backward classes.

3. The petition preferred by the respondent was allowed by the learned Single Judge and the order dated 06.03.2024 passed by the Committee was set aside. Additionally, the learned Single Judge directed appellant No.2, to issue a caste validity certificate certifying that the respondent as eligible for reservation as applicable to Category-II(A) of Kuruba caste within a period of two weeks from the date of the said order.

Prefatory facts

4. The respondent belongs to Kuruba caste, which falls under Category-II(A) of the Government Order, classifying the backward classes.

5. The respondent had applied for the post of Assistant Engineer (Electrical) with the Karnataka Power Transmission Corporation Limited [KPTCL] and was selected for the said post under the reserved Category-II(A). The selecting authority required a caste certificate for substantiating the respondent's claim for reservation.

6. On 20.02.2024, the respondent applied for Sindhuthva Certificate to the Committee. Pursuant to the said application, the Committee requested the concerned Tahsildar (Tahsildar, Annigere Taluk,) to examine the caste and income certificate of the respondent and to submit a verification report. The said Tahsildar submitted a report dated 18.04.2019, confirming that the respondent belongs to Kuruba caste and the family's annual income is Rs.19,48,128/-. The concerned Tahsildar reported that the parents of the respondent were in government service. The annual income of the respondent's father was Rs.7,76,112/- and the annual income of the mother was Rs.6,74,356/-. Thus, the total income of the parents were Rs.14,50,468/-. The said amount was in excess of Rs.8,00,000/-, which was fixed as the annual income limit for backward classes in terms of the Government Order dated 14.09.2018. (Government Order No.OBC 304 BCA 2017) The respondent does not dispute that his annual income mentioned in the certificate issued by the Tahsildar, as Rs.6,74,916/-, is correct. He contends that while considering the income of the family for the purpose of reservation, income from salary and agriculture was required to be excluded.

7. The respondent also referred to the order dated 24.08.2021 passed by the Supreme Court in Writ Petition (Civil) No.60/2019, captioned as 'Pichra Warg Kalyan Mahasabha Haryana (Regd.) and another v. The State of Haryana and another' (2021) 20 SCC 384, in support of his contention that the 'Creamy Layer' cannot be determined solely on the basis of the economic criteria.

8. The Committee did not accept the contention as advanced and rejected the Sindhutva Certificate. The Committee found that the respondent was required to be excluded from the benefit of reservation on account of falling in the creamy layer.

9. The respondent appealed the said order dated 06.03.2024 before appellant No.1 (Appellate Authority/Caste/Income Verification, Department of Backward Classes Welfare). However, appellant No.1 concurred with the Committee's decision dated 06.03.2024 and dismissed the appeal.

10. Aggrieved by the said decision, the respondent filed a writ petition (being W.P.No.25063/2024), which was allowed in terms of the impugned order.

11. The learned Single Judge referred to the decisions of this Court - decision in W.P.No.100501/20212 decided on 29.03.2021 and the W.P.No.105275/2021 (Shri. Basayya v. The State of Karnataka and another) decided on 22.12.2021 - and held that the income derived from the salaries of the parents of the respondent was required to be excluded for the purpose of determining whether the candidate fell under the creamy layer. Additionally, the learned Single Judge referred to the Circular dated 04.07.1994 (Circular No.SakaE/130/BCA/94) issued by the Government of Karnataka in support of the said conclusion.

Reasons and Conclusion

12. The only controversy that falls for the consideration of this Court is whether the salary income of the parents of the respondent are required to be excluded for the purpose of assessing whether the respondent is excluded from the benefit of reservation in employment on account of falling in the creamy layer.

13. The respondent relies on the Office Memorandum dated 08.09.1993 (O.M.No.36012/22/93-Estt.(SCT) issued by the Government of India.), which expressly excludes the sons and daughters of persons having gross annual income of Rs.1,00,000/- or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act, 1957 for a period of three consecutive years. Explanation No.1 under the said clause expressly provides that "Income from salaries or agricultural land shall not be clubbed" and the income criteria in terms of rupee would be modified taking into account the change in its value every three years.

14. On a plain reading of the said Office Memorandum dated 08.09.1993, it is apparent that it is applicable for reservation for socially and economically backward classes in Civil Posts and Services under the Government of India. Thus, the said Office Memorandum is inapplicable to posts reserved under the State Government or its Undertakings. The learned counsel for the respondent does not dispute the same. However, he submits that in terms of the Government Order dated 20.04.1994 (G.O.No.SWD 75 BCA 92), the benefit of reservation under Article 15(4) or under Article 16(4) of the Constitution of India is not available to the persons either of whose parents is a Class I or Class II officer in the service of the Government; or holds an equivalent posts in the Public Sector undertaking; or is in employment of a private employer and draws a salary, which is not less than that of a Class II officer. And, the respondent's case does not fall within the said exclusionary clause. The relevant clause of the said Government Order is set out below:

          "1) either of whose parents is a class I or Class II officer in the service of the Government or holds an equivalent posts in Public Sector Undertaking or an employment under a private employer and draws a salary which is not less than that of a class Il officer (initial stage of the pay scale of Rs. 2050-3950)"

15. According to the learned counsel for the respondent, the said exclusion under the Government Order dated 20.04.1994 does not cover the respondent, as his parents are not Class I or Class II officers and the income from their salaries is required to be excluded.

16. As noted above, the respondent also relies on the decisions of this Court in W.P.No.2667/2021 (GM-CC) and in W.P.No.100501/2021 and W.P.No.105275/ 2021, which were also referred to in the impugned order.

17. It is also noted that the decision in W.P.No.100501/2021 decided on 29.03.2021 (supra), also rests on the Office Memorandum dated 08.09.1993 issued by the Central Government and the subsequent decision dated 22.12.2021 in W.P.No.105275/2021 (supra) follows the earlier decision in W.P.No.100501/2021.

18. Once it is found that the Office Memorandum dated 08.09.1993 relates only to reservations for employment and services of the Government of India, the same would be inapplicable. Thus, the said decisions would not carry the respondent's case any further.

19. The learned counsel for the respondent also relied on the decision of the Supreme Court in Siddarth Saini v. State of Haryana and others: (2001) 10 SCC 625 and drew the attention of this Court to paragraph No.4 of the said decision, wherein it was observed that the amount of gross salary received by the father of the appellant in that case, for the purpose of grant of benefit to the Other Backward Classes (OBC) certificate, is irrelevant.

20. Additionally, the respondent also relied on the decision of a learned Single Judge of this Court in W.P.No.2667/2021 (GM-CC) (Sri M.Anjanappa and another v. The Deputy Commissioner and others) decided on 30.08.2024. Plain reading of the said decision also indicates that the same is based on the Office Memorandum dated 08.09.1993.

21. The decision in the case of Siddarth Saini (supra), is not applicable, as the same was rendered in the context of the clarification issued by the Government of Haryana. A plain reading of the said judgment indicates that the Government of Haryana had clarified that income from salary was not required to be taken into account for the purpose of income / wealth test in respect of service category. The relevant extract of the said judgment is set out below:

          "3. Pursuant to the judgment of this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] the Haryana Government vide notification dated 12-10-1993 had set up the Haryana Second Backward Classes Commission. The terms of reference of the Commission were to entertain, examine and recommend upon requests for inclusion and complaints of overinclusion and underinclusion in the list of Backward Classes. Vide notification dated 26-5-1994, the Commission was also assigned the function of specifying the basis, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections (creamy layer) from Backward Classes. A perusal of the criteria referred to above shows persons falling in certain categories as belonging to creamy layer. In this case, we are not concerned with any other category, except the category of government servant Class II post. The father of the appellant was directly recruited as Assistant Engineer (SDO) on Class II post, in the Irrigation Department of Haryana. The father of the appellant still continues to be a member of Class II service only. According to the affidavit filed by the father of the appellant, his source of income is only salary and he derives income from no other source. The Government of Haryana issued Clarification Order No. 22/36/2000-3GS III dated 9-8-2000 for issuance of certificate to OBCs in Haryana on 9-8-2000. In the said order it has been clarified that income from salary is not required to be taken into account for the purpose of income/wealth test in respect of service category and while calculating income or wealth tax of a government employee of a Backward Class who is not covered under Annexure A description of Categories I, II (a, b, c, d), III and IV he would become entitled to the benefit of reservation under Backward Classes category; his salary shall not be included but his other sources of income/wealth, be included for income/wealth test.

          4. In the present case, it is the admitted case of the appellant that the only source of income of the father of the appellant is his salary. It is also not disputed that the father of the appellant is a Class II officer and that the mother of the appellant is not a Class II officer. The amount of gross salary received by the father of the appellant, for the purpose of grant of benefit to the OBCs is irrelevant. This being the position, which has been clarified by the Government of Haryana itself, by government order dated 9-8-2000, it is obvious that the appellant should not have been refused the OBC certificate by taking the salary of the father of the appellant into account. The order of the Deputy Commissioner dated 24-6-1999, refusing grant of OBC certificate, is clearly erroneous. The judgment of the High Court, impugned before us, which upholds the order of the Deputy Commissioner is, in view of what we have said above, not sustainable."

22. Before proceeding to address the controversy, it would be relevant to refer to Clause (d) of the Government Order dated 20.04.1994, which excludes certain persons from the benefit of reservation. The said clause is set out below:

          "d) No one should be entitled to benefit of reservation under Article 15(4) or under article 16(4) of the Constitution of India:

          1) either of whose parents is a class I or class II officer in the service of the Government or holds an equivalent posts in Public Sector Undertaking or an employement under a private employer and draws a salary which is not less than that of a class Il officer (initial stage of the pay scale of Rs.2050-3950)

          2) either of whose parents is a professional i.e.

          1) Doctor

          2) Lawyer

          3) Chartered Accountant

          4) Income Tax Consultant

          5) Financial or management consultant

          6) Dental Surgeon

          7) Engineer or Architect

          3) either of whose parents is an income tax assessee.

          4) either of whose parents is assessed to sales tax.

          5) either of whose parents or both together own more than 8 hectares of rainfed or dry land or its equivalent."

23. The said clause was classified by the Government of Karnataka in terms of the notification dated 04.07.1994. The relevant extract of the said notification is set out below:

          "As per the rules laid down in these Government Orders, certain Thasildars, members of the public, and various associations and organizations had raised queries and requests for clarification. Therefore, the Government hereby issues the following clarifications as stated below.

           (1) *** *** ***

          (2) *** *** ***

          (3) In identifying individuals belonging to the "advanced" (creamy layer) section among the backward classes, the authority must verify the following: The income or salary range of the father, mother, husband, wife, or guardian of the candidate, as specified in Government Order dated 20-04-1994, Section 3(1). Whether their salary grade falls within Rs.2050-3950 or higher.

          Additionally, the authority must confirm whether they are employed in any of the services or posts mentioned in clauses (2), (3), (4), and (5) of the same order, and whether they come under the conditions laid down therein.

          (4) *** *** ***

          (5) *** *** ***

          (6) If the father, mother, husband, or wife of the applicant is a working in the State government, central government, semi-government, or private institution not coming within pay scale of Rs.2050- 3950 or above, then such candidates shall be considered as belonging to the backward-class (non-creamy layer). While assessing eligibility, only the basic pay of the concerned person should be taken into account. Other allowances and benefits they may receive should not be considered for determining whether they fall under the advanced (creamy layer) category."

          [emphasis added]

24. Paragraph No.(3) of the said Notification dated 04.07.1994 amply clarifies that the exclusions mentioned in sub clauses (2), (3), (4) and (5) of Clause (d) of the Government Order dated 20.04.1994 would be in addition to the exclusion in sub clause (1) of the said clause. Thus, notwithstanding that the parents of a candidate are not Class I or Class II officers in the service of the Government of India or whose income was at the initial stage of pay scale of Rs.2050-3950 or below, the said candidate would be excluded if his parents were professionals as specified in sub clause (2) or income tax assesses as specified in sub-clause (3). Paragraph No.(6) of the notification dated 04.07.1994 also clarifies that, for the purposes of applying the pay scale of Rs.2050-3950, only the basic pay of the person would be taken into account.

25. The learned counsel for the respondent pointed out that there was an error in the English translation of the notification dated 04.07.1994 as set out above. He submitted that in the Kannada version of the said notification, the entire salary, allowances and benefits are required to be excluded by virtue of Paragraph No.(6) and the same is not confined to other allowances and benefits. Thus according to the learned counsel, if the father, mother, husband, or wife of the applicant is a working in the State government, central government, semi-government, or private institution and their remuneration is not within the pay scale of Rs.2050-3950, the entire salary, allowances and benefits are required to be excluded.

26. The learned counsel for the appellants disputes the same. However, it is not necessary to examine this controversy. This is because, irrespective of the clarification under paragraph No.(6) of the notification dated 04.07.1994 (the translated version of which is set out above); the appellant would be excluded for the benefit of said notification. Admittedly the parents of the candidate are income tax assesses and thus covered under sub-clause (3) of clause (d) of the Government Order dated 20.04.1994. Second, there is no dispute that the salary of the parents of the respondent are significantly of higher basic pay band of Rs.2,050-3,950. The documents produced on record indicate that the basic pay of the father of the respondent was Rs.53,900/- per month and that of his mother was Rs.52,650/- per month.

27. Although we have referred to the Government Order dated 20.04.1994, the respondent's case is required to be considered in terms of the Government Order dated 30.03.2002 (Government Order No. SWD 225 BCA 2000). The said order is set out below.

          Government Order No. SWD 225 BCA 2000, Dated: 30th March 2002

          After careful consideration of the above proposal the Government are pleased to make the following orders:

          1. The quantum of Reservation Specified in G.O. Dated: 17- 09-1994 and 31-01-1995 read at Sl. No. (1) & (2) respectively is continued for admission to Educational Institutions and Employment.

          2. The revised list of Backward Classes enclosed to this order as at Annexure-l, incorporating recommendations of the BC Commission, is brought into force with immediate effect.

          3. A new comprehensive Creamy Layer Policy as detailed in Annexure-II to this Government order is brought into force with immediate effect. This Creamy Layer Policy does not apply to SCs/STs and Category-1 of the Backward Classes. Candidates belonging to Category-II(A), II(B), III(A), and III(B) shall be entitled to reservation in the manner specified in the new comprehensive Creamy Layer Policy.

          By Order and in the name of Governor of Karnataka,

          D.M. AGA

          Deputy Secretary to the Government,

          Social welfare Department.

28. Annexure II to the said order sets out the new comprehensive creamy layer policy. We consider it apposite to set out the same as under:

ANNEXURE-II to G.O. No. SWD 225 BCA 2000 dated 30th March 2002

NEW COMPREHENSIVE CREAMY LAYER

Under Article 15(4) and 16(4) of the Constitution of India, the following persons shall not be eligible for reservation of seats of posts categorised under IIA, 11B, IIIA and 111B.

NOTE:

1. This rule will not apply to direct recruitments to posts which insist on C prescribed period of service in a lower post or experience in a post, profession or occupation as a qualification or eligibility.

This rule applies to son(s) or daughter(s) of the persons specified below:





          D.M, AGA

          P.R. – 398

          Deputy Secretary to Government,

          Social Welfare Department."

29. It is clear from the above that the respondent would fall in the creamy layer by virtue of clause 3 as set out above, as the income of the parents of the respondent exceeds the threshold limit as specified, which stands increased to Rs.8,00,000/-.

30. Further, the interpretation of clause 3 of the comprehensive creamy layer policy has also been placed beyond any doubt by virtue of the Circular dated 23.05.2012, whereby it is expressly clarified as under:

          "2. As per item 3 of Annexure-2 of 225 52 2000, 22:30-03-2002, if the total annual income of the candidate and his parents, including government Group-C and Group-D employees, exceeds Rs. 2.00 lakhs, they will not be eligible for reservation as per the Creamy Layer Policy, (This income limit has been increased to Rs. 3.50 lakhs vide Government Order No.:S.E. 104 BCA 2011, Dated:05- 02-2012)."

31. As noted above, the said income limit is subsequently increased to Rs.6,00,000/- and thereafter to Rs.8,00,000/- by virtue of Government Order dated 14.09.2018 (Government Order No. BCM 304 BCA 2017).

32. In view of the above, the impugned order cannot be sustained. The respondent clearly falls under the creamy layer in terms of Annexure II to the Government Order dated 02.02.2002.

33. The appeal is accordingly allowed and the impugned order is set aside.

34. In view of the above order allowing the Writ Appeal No.301/ 2025, the complaint is closed.

35. Pending applications stand disposed of.