NILU SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE case relates to appointment to the post of Child Development Project Officer. The petitioner, who could not compete was not successful in test being general category, has prayed for direction on the respondents not to give reservation to any reserve category, other than S.C./S.T. in the matter of appointment to the aforesaid post.

(2.) ACCORDING to the petitioner, the respondent ''B.P.S.C. should make fresh recommendation from amongst general category candidates against the posts which were earlier shown to be reserved for other backward class (O.B.C.), on recalling the recommendation, if any made in favour of O.B. Cs.

(3.) THE aforesaid submission made on behalf of petitioner cannot be accepted as exclusion of creamy layer has no direct effect in the matter of reservation in favour of a particular category. The provision for reservation of appointments or posts as stipulated under Article 16 (4) not only contemplates reservation simpliciter but includes preference, concession and exemption. Such reservation of O.B.Cs. is permissible and the notification of reservation has already been upheld in the case of indra Sawhney (supra). Therein the Supreme Court while dealt with 'means ' test and creamy layer, held that means, test signifies in position of income limit for the purpose of excluding persons from O.B.C. whose income is above the limit. On the other hand, the creamy layer stipulates such category of persons out of same designated backward class who are highly advanced both socially, economically and educationally. Direction was given to Government of India to specify the basis, applying the relevant and requisite socio economic criteria to exclude socially advanced persons/sections (creamy layer) from other backward class within four months. However, said direction was not applied to the State where such reservation in favour of backward classes were already in -operation and they were allowed to continue to operate. Such States were however directed to evolve such criteria within six months to apply the same to exclude socially advanced persons/sections from designated O.B.Cs. Thereby, it will be evident that while reservation relates to a post, exclusion of creamy layer relates to individual, who on the basis of facts and circumstances can be held to be ineligible to get the benefit of reservation. The question relating to identification of creamy layer fell for consideration before this Court in the case of Bihar Police Mens ' Association V/s. State of Bihar and ors. [1999 (3) P.LJ.R. 687]. Taking into consideration the fact that identification of creamy layer earlier made by the State vide Bihar Reservation of Vacancies in Posts and Services (for S.Cs., S.Ts. and O.B.Cs.) (Amendment) Ordinance, .1995 had been struck down by the Supreme Court and the State Government had not brought out any fresh criteria for identification of creamy layer to extend the benefit of reservation to non - affluent O.B.Cs., directed the State to prescribe the criteria of creamy layer within a stipulated period. In the case of Pravin Kumar Thakur and ors. V/s. State of Bihar and ors. [1999 (3) P.LJ. R. 929] while similar direction given to the State to fix criteria for exclusion of creamy layer, the Court directed that unless and until such fresh criteria fixed, the criteria laid down by the Government of India to be followed.