Sing' Be^ 03 IN THE HLGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR W.P.Np.5 8 / 2005 Petitioner Ritu Parn Namdeo, S/o Dr. Bharat Namdeo, Aged about 26 years, R/o 318 Vaishnav Colony, Civil Lines, Baloda Bazar, Dist. Raipur (C.G.) Versus Respondents \^\ State of Chhattisgarh through the Secretraiy, Revenue Department, D.K.S. Bhawan, Raipur (C.G.) , 2. Collector, Dist. Raipur (C.G.) 3. ^^,^?^. p ^.,2 '.-.:' ^ oy? Sub-Divisional Magistrate, Baloda Bazar, Dist. Raipur (C.G.) Tahsildar, Baloda Bazar, Dist. Raipur (C.G.) WRIT PETITION UNDERARTICLE 226/227 OF THE CONSTITUTION OF INDIA •:s 11 HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISQARH Wnt Petstlon No.93 of 2005 Ritu Parn Namdeo - Versus - State of Chhattisgarh and othors &• PO.ST FOR ORDER ON 15 MARCH, 2005 Sd/- L.C. Bhadoo Judge 5 Rij 115 HiGH COURT OF JUD1CATURE AT B8LASPUR. CHHATTiSOARH Wrlt Petstion No.98 of 2005 Ritu P^m Namdeo - Vereus - State of Chhattlsgarh and others Y '^.,. ,-.,^~.^.-E-'V' Present: ~ Mlss Pritha Ghoshai, Advocate: Mr. P.S. Koshy, Deputy Advocate Gsnerai: For the petitioner. For the Stats/respondents. ORDER (Passed on 15th March, 2005) L.C. BHADOO. J: - 1. By way of this wrlt petition under Articie 226/227 of the Constitution of India, the petitioner has questioned the iegaiity, correctness and propriefy of the ordor clated 27.11.2004 passed by th©Tehsiidar, Baloda Bazaar, Dlstrict: Rajpur, whereby the Tehsjjdar rejected the appjjoatlon of the petliioner, moved for jssuance of QBC certjfjcate, on the ground that the petitjoner's father's s'ncome is more than Rs.3 iakhs, therefore, the petitioner comes m the category ofcreamy jayer. 2, Brief leading to fiiing of this writ petition aro that after pa^ing the graduation examJnatlQn the petltioner is prosecutlng his studies in law course at Deihl University and he Is permanent rssldent of Bajoda Sasaar, Djstrict: Ralpur. Petitioner's father Dr. Bharst Namdeo is working as Doctor (Class-1 Officer) in the Heasth Department in the State of Uttar Pradesh. Father of th©petitioner is from >Namd©ocaste, which has been deciared as Other Baokward Class for the of Chhattlsgarh. Further oase of the petitioner is that the petltioner appeared in the Ail Jndia Sep/ices Preiimmary Examination conducted by the Unson Pubiic Sen/scs Commsssaon In the year 2004 which hs passed and thereafter, he has appeared in the main examination and the resuit Is like!y to be dedared in the month of Februaiy, 2005 or March, 2005. Th©pstitloner beiongs to Namdeo (DarjJ) caste, which faiis in the categor^ of backward ciass. Accordjngiy, the petjtioner!s uncle moved for issuance of OBC certlficate. However, the Tehsiidar oratly refused to Issue the certiftoate on the ground that the petitloners famijy Page2of5 116 '^.^.^.'^ ^^' comes in the category of creamy iayer, The uncie of the petitioner approached respondeni No.4, but he ropiied that th^ authorities are waiting the reievant circuiar of the State Government and the Union Government, and uitimateiy, the petjtioners uncSe wrote a Setter to the Collector requestlng him to direct the sub-ordinate officers for issuance of the certlficate. When under the directjon of the Coiieetor the petitioner's uncle appeared before the Tehsildar, then he said that the petitioner comes under th^ category of croamy layer on the ground thai petitjoner3s father Dr. Bharat Namdeo's saiary is more than Rs.3 iakhs per annum, whereas, the said Jmpression of the Tehslidar is Incorrect in view of the ctrcuSar dated 9- 3-2004 (Annexure P-5) issued by the Union Government. The UPSC vide sts ietter dated 3-11-2004 directeti the petltioner to submlt the caste certiflcate by 23-11-2004 fajiing which candidature of the petitjoner for the examlnation wiii be canceiied. Under the circumstances, th^ petiiioner flled Writ P©tiiionNo.4374/2004 and th©Court dirscted the Tshsiidar to dscide the applic^tion of the petitloner and ultlmately vide the Impygned order, the Tehsildar has rejected the appiication. 3. Further case of the potitloner Is that as per th^ guidellnes issued by the erstwhlje State of Madhya Pradesh in the year 1999, ihe petttioner does not come under the definition of; creamy iayer, aithough the father of the petlttoner is a doctor (C!ass-I Offlcer), but he was inltialiy recruited as Ciass- jj Officer and was-promoted as Class-i Officer after attaining the age of 50 years. Therefore, as per the guidelines, the petitioner not come under the category of creamy layer. It is ctear from the above guideiines that whiio considering tho criteria of income of any person In order to docide whether a partlcular person comes under creamy layer or not, salary or income from the agricuiture cannot be added for the purpose of ascertaining the Income, as such, the Impugned order Is arbitrary and ths sarne is tiable to be quashed. 4. Return has been flled on behalf of the State/re^pondents in v/hieh It has been mentloned that the saiar/ Income of the petltioner's father is more than Rs.3 iakhs, therefore, in view of ciause 6 of the Guideiines, 1999 (Annexure P-10) the pstitioner comes under the category of creamy iayer and h@ is not eiigible for OBC cenificate. An objection has ajso been raised that the petstloner ought to have fii^d appeal before the Sub Divisional Offjcer, as alternative remedy is avaiiable to the petitioner, Page3 of5 117 T-. ^* 5. I have heard leamed counsel for the parties. Since reium has air^ady been, thorofore, it was docided to dispose of this petition at th@ admission stage. 6. Learned counsel for the petitioner argued that it is ctear from clause 6 of the guidelines (Annexure P-10) that whiie assessing the jncome of a person for the purpose of a decision whether a particular person's income js beyond the ceiiing of the said circular or not, the income from -saiary or agrieuityre cannot be taken into consideratjon. There'fore, the dedsion of the Tehslidar js incorrect. , 7. On the other hand^ learned Deputy Advooate Generai vehemently argued that as the saiary of the petitioners father te more than Rs.3 lakhs le. beyond Rs.2 lakhs, therefore, he comes under the categcry of creamy layer, As per expianation 1 of ciause Q oniy the agricuitural jncome cannot be inciuded in the salary in order to decide the income for the purpose of issuance of the certjfjcate. Since, Income o? the petitioner's father is more than Rs.3 lakhs by wsy of saiary, therefore, his income is beyond the preseribed iimit, as auoh, the petitioner coines under the category of creamy jayer. Same stand has been taken by the Tehsiidar whlie passjng the jmpugned order and rejectjng the petjtioner's appjlcation. 8, As far a-3 the question of aJtematlve remedy i^ oonoerned, It j^ true that the petitioner could have fiied appeat before the Sub Divlsionai Offlcer agalnst the Impugned order, but it Issettied iaw that aitsrnative remedy js a ruis of discretion and not rule of compuision. For this view, i sm fortified with the judgment ofApex Court reported in (2003) 2 SCC 107 (Harbanslal Sahnsa and another vs. Sndian Oi3 Corpn. Ltd. and others). In view ofthe above decjsion, as the order of the Tehsildar is patentiy contrary to the oircuiar issued by the Ceritraj Government and the guidejines by the of Madhya Pradesh, therefore, i am of the considered opjnfon that the writ petjtlon is maintainable. 9, In order to appreciate the argumente advanoed by loamed ooun^ej for the partles, Ifwe look into the guldeiines dated 30th Ju!y, 1999 (Annexure P-10),- Issued by the erstwhiie State of Madhya Pradesh whlch is based on the notification No.36012/22/93/'(^eT)^r.^r.^t dated 8th September, 1993, Jssued by the Union Government for iaying down the criieria regarding the persons who come under the categor/ of creamy Jayer, In category No.1 Pa.ge 4 of 5 118 ^: persons holding constitutionai posts i,^, the President, Vlce-President, Jydges of Supreme Court & Hjgh Courts, Chairman & Mcmbers of tho UPSC & State Publio Servioe Commtesions, Chief Eiection Commtesioner, Comptroijer & Auditor Generai of india and the persons hotding equal constitutiona! posts; and in category No.2 persons appolnted on CIass-i posts or those who have been promoted to CJass-I post before attaining the age of 40 years have been declared to be persons failing under the category of creamy iayer. Thus th©sons and daughters of IAS/IPS Officers. Class-i Officers or those Officers of the Centra! & State Qovernment who have been promoted before attaining the age of 40 years cannot get the benefrt of reservatlon and such persons have been deciared to be covered under creamy iayer. in the third category, persons hoiding the post of Colonei and above or equivalent posts in army, nsvy, alr force and para miiiiary force hav©been deciared to be persons of creamy iayer. Undor category 4 & S< persons who aro engaged in busjness, trado and incjustry or profession whose gross Income is more than Rs.l lakh earlier, now Rs.2 'akhs, in the 'ast three consecutive years and who have wealth In sxcess of exemption tlmit whlch Is Rs.15 lakhs with one house property of any vaiue and of commercial and agricuitural assessed tax have been deciared to be covered under the creamy layer. Further an expianatory noie has boen added to cJause. 6 whjch envlsagos that the income from sajary or agriouiture ^h^II note be included for the purpose of deciding the point of income. lO.Therefore, as far as th^ Govemment servante are concemed, in order to d^cid^ whothor thoy are covered under tho croamy layer or not the criteria whlch ha^ been ilxed under the circylar for Government sen/ante ha3 been mentioned In ciauses 1, 2, 3 and 5-a, that means the persons of above categories wiii be considered under the creamy iayer, as such, for the service class people, creamy iayer cnteria has been ftxed iooklng to their rank and post held by them, not on the basis of their income by saiary i.e. jrrespective of saiary the persons who are covered under the category by their post have been deolared under the creamy l^yer« Whereas, under ciause 6 in order to bring under the tnischief of creamy iayer If any person's Income is more than Rs.1 jakh (now Rs.2 lakhs) from business, trade, industry, professlon, income from interest, dividend and property exceeds Rs.2 lakhs, then they are covered under the category of creamy teyer. Since the criteria for service ciass persons has been Jaid down by their post / PageS of5 11.9 and rank, and salary has not been taten into considoration, ihermore, expianation No.1 added to oiause 6 says that in order to decide whother a person oomes under the oategory of oreamy Sayer on aooount of hte inoome and property, then the saiary of that person or income from agricuiturai cannot b@ inciudeci with other Income based on which that person is being considered whether he comes under the category of creamy layer or not. For exampie, if any person is a Government ser^ant or servant m the Corporation, Pubiic Sector Undertaking, Bank, t.nsurance, University, he has also agriculturai income and apart from that income from other sources is aiso there, then whlie conssdering the income from other sources whether on account of that, that person comes under the category of creamy layer or not, his Income from saiary or agricujture wiii not be incjudable with the jncome from other sources. 11.Therefore, i am of the opinion that the order impugned js whoiiy arbitmry, iliegal, and unjust not being in consonancs with the notification issued by the Centrai Government and guidelines issued by the State of Madhya Pradesh. As the petitioner's father does not come under the creamy iayer in any of th©ciauses viz., ciause 1, 2, 3 & 5-a, and he has no income from other sources so as to put him in categopy 8, his oniy income is salary and according to his neither he was appointed a$ C!assa-l Officer at the jnltiaj stage nor he was promoted to Ciass-i post before attalning the age of 40 years, as such, the decision is iiabie quashea, and the same is accordingiy, quashed. 12Jn the resuit. the writ petition te atlowed and the Tehsiidar is directed to consjder the application of the petltioner forthwith based on the above interpretation of the guidellnes issued by the State of Madhya Pradesh. in the circumstances of the case< I make rso order as to costs. r Sd/- L.C. Bhadoo Judge ^oma