THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Writ Petition No.17634 of 2009 % 21-12-2010 Between: G. Karthikeyan …Petitioner And The Food Corporation of India, Rep. by its Chairman & Managing Director, New Delhi and others …Respondents ! Counsel for Petitioner : Smt.M. Bhaskara Lakshmi ^ Counsel for Respondents : Sri B. Anjaneyulu, SC for FCI < Gist: > Head Note: Citations: 1) 1985 Supp. SCC 714 2) 1992 Supp. (3) SCC 215 3) AIR 1955 SC 123 4) (1979) 2 SCC 409 5) 1988 (Supp) SCC 55 6) (2004) 13 SCC 792 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.17634 of 2009 JUDGMENT: The petitioner was appointed as Deputy Manger (General) in the Food Corporation of India (for short ‘the Corporation), on 15-05-2000, against a vacancy reserved in favour of OBC category. Initially, he was posted in the Regional Office at Lucknow and at present, he is in the Regional Office, Hyderabad. The post held by him has since been re-named as Assistant General Manager (General). A recruitment notification was published by the Corporation in July, 2008, for 12 posts of Deputy General Manager (General Administration). Out of them, 4 posts are reserved in favour of OBC category. In-service candidates were also permitted to apply. The notification made it clear that the benefit of reservation shall not be available to the candidates, who fall within the Creamy Layer of the OBC category. The petitioner submitted his application, stating that he belongs to OBC category and ticked the relevant column, indicating that he falls into “creamy layer”. He enclosed the caste certificate issued to him in the year 1995. Written test for the posts was held on 09-11-2008, at Chennai. On the basis of the performance therein, the petitioner was issued intimation to appear for group discussion and interview, to be held on 30-01-2009 in the headquarters of the Corporation, at New Delhi. Candidates were required to furnish bio-data, while attending the interview, and one of the columns related to the social status. The petitioner mentioned that he belongs to OBC and falls into ‘creamy layer’. The results of the selection were declared in the website in the last week of April, 2009. The petitioner was shown as having been selected for the post of D.GM under OBC Non-Creamy Layer (NCL) category. He was required to submit the latest proof, as to his social status. The petitioner addressed a letter dated 12-05-2009 to the Corporation with a request to extend the time for submission of the social status certificate, till the end of May, 2009. He further stated that on account of lack of knowledge, he mentioned in the application form and bio-data that he is within the creamy layer, though, in fact, he is in the NCL category. He submitted the OBC certificate dated 20-05-2009, issued by the competent authority, vide covering letter dated 21-05-2009. It was mentioned that the annual income of his father is Rs.50,000/-. The grievance of the petitioner is that he has not been selected, in spite of the fact that he is within the NCL of OBC. He made a reference to the representation said to have been made by Sri Sudesh Kumar Yadav, the 4th respondent, and the further action taken thereon about the social status of the petitioner. With this background, the petitioner prays for a Writ of Mandamus to declare that the action of the respondents 1 to 3, in not appointing him to the post of DGM under OBC category, is arbitrary, illegal and unconstitutional. Consequential direction is sought against respondents 1 to 3, to appoint him to the said post. On behalf of the respondents 1 to 3, a common counter-affidavit is filed. It is stated that, in clear and unequivocal terms, the petitioner stated that he is within the creamy layer of OBC category, and in that view of the matter, he has not been issued order of appointment. According to them, though the case of the petitioner was processed under the NCL category, after due verification of the information furnished in the application forms, and on consideration of the representations made by certain candidates, the matter was examined and the result was that the petitioner was not selected since he stated in application and bio-data that he is within the creamy layer. Smt. M. Bhaskara Lakshmi, learned counsel for the petitioner submits that on account of the fact that the concept of creamy layer was introduced, just about that time, the petitioner was of the view that the income of the applicant himself becomes relevant, and thereby, proceeded on the assumption that he falls into the creamy layer. She contends that the Orders and Circulars issued by the Government in this regard, make it clear that it is only the income of the father of the applicant, that becomes relevant, and accordingly corrective steps were taken by the petitioner. Learned counsel submits that a valuable right inheres in the petitioner, to claim the status of OBC NCL, and that such right cannot be waived at all. She has placed reliance upon certain judgments rendered by the Hon’ble Supreme Court, in support of her contention. Summing up her arguments, learned counsel contends that the respondents are under obligation to appoint the petitioner to the post of DGM (General Administration). Sri B. Anjaneyulu, learned Standing Counsel for the Corporation, on the other hand, submits that the reservation is a special facility created in favour of the respective category of candidates, and it is always for the candidate, to decide, whether or not to claim the benefit under it. He contends that the petitioner is an Officer of fairly high status, and he cannot plead ignorance about the purport of the theory of creamy layer. Learned counsel submits that the Rules and clarifications, in this regard, existed, by the time the applications were made, and once the petitioner has chosen to claim that he is within the creamy layer, he cannot turn around and attribute illegality or arbitrariness to the Corporation. The Corporation initiated steps to fill 12 posts of DGM (General Administration) and accordingly notification was issued in July, 2008. 4 posts were reserved in favour of OBC category. A clear mention was made to the effect that the reservation is not applicable for OBC candidates, falling within the creamy layer. In- service candidates were also permitted to apply. The petitioner submitted his application, by mentioning that he belongs to OBC category, but is within the creamy layer. It is relevant to mention that the notification contained the form of application. Item 5 of the application pertains to the social status of the applicant. The heading thereof reads, “indicate category to which you belong by marking ‘X’ in the appropriate box”. 5 boxes are given, one each for SC, ST, Un-reserved, OBC (Non-Creamy Layer), OBC (Creamy Layer). The petitioner has put ‘X’ in the column, “OBC Creamy Layer”. Written test was conducted and the same was followed by croup discussion/interview. At that stage, the candidates were required to furnish bio-data. Here again, the petitioner mentioned that, he belongs to “OBC Creamy Layer”. The petitioner was required to furnish the social status certificate of the recent years. Accordingly, he furnished the certificate issued in May, 2009. He was not issued orders of appointment by treating his candidature as within the creamy layer of OBC. It is no doubt true that the respondents processed the case of the petitioner, up to a certain extent, by extending him the benefit of OBC. That, however, was almost inconsequential. The actual verification takes place, when the final scrutiny is undertaken. Article 16(4) of the Constitution of India empowers the State to provide reservation in favour of SCs, STs and Backward Classes, in the matter of employment into public service. Article 16(4) reads as under: “Art.16(4): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. This is the outcome of the first amendment to the Constitution. It is not necessary to mention in detail, the circumstances that led to the incorporation of Article 16(4), since they are too well-known. It is but natural that a person, who is otherwise not entitled to be appointed, would get such benefit, on account of reservation. Reservation originally made for the benefit of SCs and STs under Article 330 etc., itself, was supposed to be a temporary phase, limited hardly to a decade. Social and political consideration, however warranted the extension of benefits of reservation from time to time. Social index of a caste, family or individual would naturally record proportionate progress with the enjoyment of the benefit of reservation. A person in a particular reserved category would stand on a higher footing, compared to the one, in the same category, but did not avail the benefit, at all. More the years, during which the reservation is in force, higher are the prospects of the family, which initially got the benefit of reservation, to corner the benefit, obviously, to the exclusion of others in that category. This aspect of the reservation was noticed by the Supreme Court in K.C. Vasanth Kumar v. State of Karnataka[1]. The observation reads, “…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 ? This, in a way, constituted the foundation for the concept of creamy layer which was evolved and suggested by the Supreme Court i n Indra Sawhney v. Union of India[2]. The justification for identification of what is known as “creamy layer”, within a reserved category, and the broad outline thereof was indicated precisely in paragraph 792 of the judgment. An example was furnished, to illustrate. It reads, “Para 792: …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 Article16 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 made 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)”. The Supreme Court did not contemplate a situation, where a person, whose income, without reference to his father’s income, brings him within the creamy layer. Does he need the protection of reservation, if he submits an application for a different post. To my mind, such cases have a greater proximity to the creamy layer, when compared to a case, where the income of the candidate’s father is no doubt more, but the candidate as such is unemployed. The initial reaction of the petitioner himself about the concept of creamy layer was inconsonance with this broad understanding of the matter. However, the traits of a typical human being, viz., to grapple the maximum, has overtaken the wisdom of the petitioner. In the process, he proved that, he is in no way different, when it comes to the question of exploitation. By and large, caste reflects the social status, and the concept of creamy layer, the economic status. The Corporation has taken into account, the social, as well as the economic status into account, in the matter of extending the benefit of reservation. The parameters stipulated for the creamy layer, in a way, require a candidate to make an endeavour, as to how he would come within the NCL. In contrast, one does not have to make any effort, at all, to claim that he is within the creamy layer. Though his social status is firm, viz., that he belongs to OBC category, he has the option to state, whether he is within the creamy layer, or not. The candidate would be under obligation to prove the relevant facts, to the satisfaction of the Appointing Authority, when he claims that he is not within the creamy layer. One would not be asked to justify his claim, if he states that he is in creamy layer. Law does not place an obligation on a candidate to claim the benefit of reservation, even if his social status permits of that. It is up to the candidate himself, to claim the benefit. The same analogy applies to the concept of ‘creamy layer’ also. In other words, even where the candidate is in a position to claim the benefit of being in NCL, he has the option to avail it, or abandon it. It is not in dispute that, at two stages of the recruitment, the petitioner stated that he is within the creamy layer of OBC. With that statement, he has denuded himself, of the benefit of reservation. The efforts made by him, after the conclusion of the selection process, are of no use. The Corporation did nothing more, than acting on the representation of the petitioner, as to his social and economic status. The plea of the petitioner that the statements made by him in the application forms do not constitute waiver of his rights, and that even otherwise, a right conferred on a citizen cannot be waived; needs a close scrutiny. The discussion in this regard must start from the question, as to whether the reservation can be equated to fundamental right. To my mind, it does not fall into the category of rights, at all, for a right must have a corresponding duty upon the person, who should honour it. It is well settled that Article 16(4) of the Constitution of India is only an enabling provision, and no citizen can insist that reservation must be made in favour of a particular category, much less, the extent thereof. It is always for the Government of the day, to decide, whether or not to provide reservation in favour of different categories based on various criteria, and to stipulate the extent thereof. It is only when the reservation as such is made, that the persons, falling into that category, stand conferred with a privilege, vis-à-vis the others, who are outside that category. Therefore, what gets conferred upon an individual, on account of reservation is more a privilege, than a right. The consequences that flow on account of reservation cannot be pushed into the legal correlatives of right, in its jurisprudential context. A privilege, by its very nature, enables the person upon whom it is conferred, to claim the special status. He is equally at liberty to use the privilege, or just to abandon it. Waiver would operate only in case of rights. Whenever a right is waived, the persons, who are under obligation to honour it, stand relieved of their duties. Such is not the case with the privilege. The special status emerging out of privilege must be honoured, only when it is claimed. Assuming that the reservation in favour of the petitioner is in the form of a right, it needs to be seen, as to whether he waived it, and if so, the effect thereof. There cannot be any doubt, that the entries made by the petitioner in the relevant columns of the application form, or bio-data, in the context of creamy layer; would amount to a waiver, in its pure and express form, without any necessity to undertake to draw inferences. Now the only question is as to whether such waiver is prohibited by law, or becomes inoperative. Reliance is placed upon the judgments of the Supreme Court in BEHRAM KHURSHID PESIKAKA v. STATE OF BOMBAY[3]. One of the contentions advanced in that case was, that, the accused in the case has waived rights, guaranteed to him under Articles 20 and 21 of the Constitution of India, and the resultant conviction cannot be challenged. The Supreme Court drew a clear line of distinction between the rights of a citizen in civil cases, on the one hand, and the criminal cases, on the other hand. The observation of Professor Kuli, in his treatise, on “Constitutional Limitations”, which are to the effect that a party may consent to waive the rights of property, but the trial and punishment of public defences are not within the province of individual consent or agreement; was taken note of. The discussion on these aspects was summed up, by holding that fundamental rights guaranteed under Articles 20 and 21 of the Constitution cannot be waived. In the instant case, what is waived by the petitioner is not a fundamental right. The reason being that, no individual is conferred with the right to claim reservation. As a matter of fact, and law, reservation is an exception to the rights of equality, guaranteed under Articles 14 and 16 of the Constitution. At the most, it is an exception to the concept of equality, and a person, who claims the benefit under exception, can certainly waive it. The judgment in MOTILAL PADAMPAT SUGAR MILLS v. STATE OF UTTAR PRADESH AND OTHERS[4], is on the proposition, whether the Government or State is bound by the principle of estoppel. That judgment has no application to the facts of this case, since estoppel, if, at all, is pleaded against the petitioner in the form of waiver and not against the State. I n MUNICPAL CORPORATION OF GREATER BOMBAY v. Dr. HAKIMWADI TENANTS’ ASSOCIATION AND OTHERS[5], the question was, as to whether a citizen’s rights, under the Maharashtra Regional and Town Planning Act, in relation to compulsory acquisition, can be said to have been waived on their expressing willingness to sell the land. The Supreme Court held that the willingness of a citizen to sell the land, voluntarily, to Government, is in the realm of his own volition, whereas the rights vis-à-vis the compulsory acquisition are conferred by a statute. In that context, the Supreme Court held that the expression of willingness to sell the land cannot be cited, as a waiver of the rights under the law providing for compulsory acquisition. A.P.S.R.T.C AND OTHERS v. S. JAYARAM[6] is another judgment, on which strong reliance is placed. In that case, the APSRTC conferred certain rights on the existing contractors for renewal of the agreements with certain modifications. Not being aware of the circulars through which such rights were conferred, an existing contractor participated in the auction, and exposed himself to a greater financial liability, compared to the one, under the relevant circulars. When he claimed the benefit of renewal under the policy, without reference to auction, the plea of waiver was raised against him. The Hon’ble Supreme Court took the view that the respondent therein was not aware of the benefit under the circular, when he participated in the auction, and in that view of the matter, he cannot be said to have waived his rights, at all. In other words, the theory of waiver would come into picture, if only the person, against whom it is pressed into service; was aware of his rights, and has chosen to waive them. If that principle is applied to the facts of the present case, it becomes evident that the petitioner was very much aware of his right, viz., to claim the benefit of reservation, by stating that he is in the NCL category. When he mentioned in his application that he falls into creamy layer, he was aware of the fact that, it would deny him the benefit of reservation. Therefore, the principle laid down in the said case does not apply to the facts of this case. Viewed from any angle, this Court does not find any merits in the writ petition. It is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.21-12-2010. Note: L.R copy to be marked. (B/O) KO [1] 1985 Supp. SCC 714 [2] 1992 Supp. (3) SCC 215 [3] AIR 1955 SC 123 [4] (1979) 2 SCC 409 [5] 1988 (Supp) SCC 55 [6] (2004) 13 SCC 792