Priyanka Rajkumar v. Bharatiya Vidya Bhavan's Rajaji Vidyashram & Ors.

ORDER On behalf of the minor son Sujay, his mother has filedthe present writ petition seeking for a direction to respondents 2and 3 to consider and admit her son in the L.K.G. class in thefirst respondent school on the basis of her application as thelegal duty was cast upon the respondents under the provisions ofthe Right of Children for Free and Compulsory Education Act, 2009(for short RCE Act) as well as under Articles 21 and 21A of theConstitution. 2.This writ petition when it came up for admission on09.05.2012, private notice was directed to be served on therespondents. On notice, a counter affidavit, dated 21.6.2012 hasbeen filed by the second respondent. The third respondent has alsofiled a counter affidavit on the same day together with supportingdocuments. The petitioner filed a rejoinder after orders werereserved in this writ petition on 02.07.2012, thereby denying thechance of the counsel for the respondents to controvert some of theadditional facts brought in the rejoinder. Hence with the objectionof the counsel for the respondents, the rejoinder has been receivedby the court. 3.It is seen from the records that the petitioner isthe mother of the minor child Sujay and was employed as anImplementation Manager in a Software Company with an annual incomeof Rs.12 lakhs. Her husband, the child’s father, was employed as aChief Technology Officer with an annual income of Rs.18 lakhs.According to them, they belonged to Mudaliar community which is abackward class community listed under the category of socially andeconomically backward class (SEBC) in the State of Tamil Nadu. Theysent an application for admission of their child to the respondentschool in the LKG section on 09.01.2012. The school was affiliatedto the Central Board of Secondary Education (CBSE), New Delhi.Their right is claimed under Section 12(1)(c) of the RCE Act andits constitutionality was upheld by the Supreme Court vide itsjudgment 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 statedthat her son’s name may be included in the waiting list. But afterseveral attempts to contact by the junior Advocate, they wereassured of one seat in the LKG class. On 22.03.2012, thegrandfather of the child had contacted the third respondentDirector for getting a seat. But he was informed that thepetitioner’s son’s name was kept in the waiting list for admissionin the LKG. On 10.04.2012 when he went to meet the Principal, thesecond respondent, he asked him to come at the end of the monthsaying that a lot was held in which his son was not lucky enough tobe picked up. But he had no notice for the lot. Further thepetitioner did not know whose names were placed in the lot and what https://hcservices.ecourts.gov.in/hcservices/ was the distance of residences of such persons from the school andwho decided the name of the person to pick up the lots. Whether allchildren were living within the 1 Km radius from the school so asto come within the neighbourhood school as set out under Section 6of the RCE Act. It was also stated by the petitioner that theproviso to Section 12(1) of the RCE Act will apply to LKG admissionalso. Hence a direction was sought for. 5.In the counter affidavit filed by the thirdrespondent, it was contended that the third respondent informed thegrandfather of the child that if there was vacancy in the LKG, thenthe petitioner’s son will be considered for inclusion subject tofulfillment of all requirements as prescribed under law. It wasstated that her son was denied admission as he was not selected inthe random selection process held for backward and most backwardclasses category. 6.In the counter affidavit filed by the secondrespondent, it was contended that the petitioner’s son’sapplication was received along with 2000 similar applications. Thenumber of vacancies for LKG was only 216 for the academic year2012-2013. Out of 216 seats, 54 seats were assigned for admissionunder 25% category under Section 12(1)(c). There were 91applications under the RCE Act category, of which 5 belonged toScheduled caste, 2 from the economically weaker section and 84applications were received under the backward class and mostbackward class category. They have allotted two seats foreconomically weaker section and 5 seats for SC and ST. In respectof 47 seats meant for BC and MBC, there were 84 applications andthat lots were held in the presence of two members of the SchoolManaging Committee and Mr.Vetrivel, a MLA from Radhakrishna Nagarconstituency. Pursuant to the lot and random selection made, seatshave been filled up. As on 11.04.2012 there was no seat left. Theschool management had filled up seats more than the requirement of25% reservation for disadvantaged group and weaker sections. Theacademic year had already commenced from 11.04.2012. As on11.04.2012, the petitioner was fully aware of not granting of seat,but they have chosen to approach the court only on 06.05.2012 longafter admissions were over. 7.In the rejoinder filed, it was contended that thepetitioner had applied for admission both under the generalcategory as well as reserved category. Nothing has been mentionedabout the general category as their admission was not made onlyunder the reserved category alone. The screening procedure underSection 2(o) means the method of selection for admission of a childin preference over another other than a random method. Random meansnot drawing of lots. It is not open to them to substitute the wordrandom. The fact that inspite of waiting in front of the Principalroom, they were not informed about drawing of lot. Drawing of lotswithout notice to the petitioner was not permissible. The right toeducation is a fundamental right. https://hcservices.ecourts.gov.in/hcservices/

8.This stand taken in the rejoinder goes diametricallyopposite to the stand taken in the original affidavit. In paragraph13 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 todisadvantaged group in the neighborhood under Clause-c of the above Section 12(1)............ So far asTamilnadu is concerned for backward class applicant,there is no financial limit. As I belong to socialand educational backward class, I am entitled to beconsidered for 25% seat reserved under section 12(1)(c) of the Act."9.Therefore, it is not open for the petitioner to turn backand contend that her child should be considered against the generalcategory in the remaining 75% of seats to be filled up by therespondents. Whether she is coming under 25% quota or otherwise, itis the stand of the management that they have filled up all seats.Even in respect of 25% reserved category, lots have been conductedin the presence of two members of the School Managing Committee andthe local M.L.A. There is no rule by which the petitioner should begiven notice of lots to be conducted. The procedure adopted by therespondents school cannot be said to be contrary to the rules andnotification issued by the State Government. The random method canalso mean drawal of lots as no other procedure has beencontemplated. Even otherwise, since the concept of neighborhoodrule has been pressed into service, the Act has not been made itclear what is the neighborhood except stating the locating of theschool under Section 6 by the local authority. If there are morethan one school in the neighborhood, as to which school the childshould be admitted is also not clear. But all these questions areacademic and hence they are not gone into detail in this writpetition. It is suffice to state that the respondents school hadadopted a transparent procedure in admitting the children more than25% quota under Section 12(1)(c). Since the school has donesomething even beyond the Act, they are to be appreciated for thegesture shown. But the petitioner will have no case to question theadmission procedure.10.With reference to the admission for general category, ithas never been the contention in the main writ petition. Thepresent contention raised in the rejoinder is only an afterthought.As rightly contended by the respondents, long after the admissionprocedures were over, i.e., on 11.04.2012, the writ petition cameto be filed only on 08.05.2012 after a month. At this stage, suchan issue cannot be reopened at the instance of the petitioner. Theother crucial contention raised by the petitioner's counselMr.S.Vadivelu and as set out in paragraph 13 will have to beanswered as the same question is likely to be come up forconsideration in future. https://hcservices.ecourts.gov.in/hcservices/

11.The second contention of the petitioner was that thepetitioner belonged to weaker section and is entitled to have theright of admission to the quota prescribed for the childrenbelonged to weaker section and disadvantaged group in theneighborhood school in terms of Section 12(1)(c) of the RCE Act,2009. According to her, the term "disadvantaged group" is definedunder Section 2(d) and "weaker section" is defined under Section 2(e) , which reads as follows :"(d)"child belonging to disadvantaged group" means achild belonging to the Scheduled Caste, the ScheduledTribe, the socially and educationally backward classor such other group having disadvantage owing tosocial, cultural, economical, geographical,linguistic, gender or such other factor, as may bespecified by the appropriate Government, bynotification;(e)"child belonging to weaker section" means a childbelonging to such parent or guardian whose annualincome is lower than the minimum limit specified bythe appropriate Government, by notification;"(Emphasis added)12.Since the petitioner belonged to socially andeconomically backward class, notwithstanding the parents of thechild having more than Rs.30 lakhs as their annual income, theycannot be denied admission under the category of disadvantagedgroup. It was further stated that insofar as the State of TamilNadu is concerned, there is no concept of creamy layer among thecommunities identified as social and economically backward classes.Hence the fact that they are earning more than Rs.30 lakhs cannotbe used for denial of admission. The petitioner placed relianceupon an order passed by the State Government in G.O.Ms.No.9, SchoolEducation Department, dated 18.01.2011, wherein in respect of themethod by which 25% quota can be filled up by the neighborhoodschool, it was stated that the children belonging to disadvantagedgroup and weaker section have to be admitted in any school whereinadmission process started from Kinder Garden section. While doingso, they should not conduct either any test or oral interview.After receiving applications, in random selection method, 25% ofstudents belonging to those group will have to be filled up.13.By G.O.Ms.No.174, School Education Department, dated08.11.2011, in respect of Section 2(d) and 2(e), it was specifiedas follows :"Under clause (d) of section 2 of the Right ofChildren to Free and Compulsory Education Act, 2009(Central Act 35 of 2009), the Governor of Tamil Naduhereby specifies that "Child belonging todisadvantaged group" means a child who is an Orphan,or affected with Human Immuno Deficiency Virus or atransgender or a child of a scavenger in addition to https://hcservices.ecourts.gov.in/hcservices/ the definition given in the Right of Children to Freeand Compulsory education Act 2009.Under clause (e) of section 2 of the Right of Childrento Free and Compulsory Education Act, 2009 (CentralAct 35 of 2009), the Governor of Tamil Nadu herebyspecifies that "Child belonging to weaker section"means a child belonging to such parents or guardianswhose annual income is lower than Rs.2,00,000/-(Rupees Two lakh only)."(Emphasisadded)14.Subsequently, the State Government had issued a furtherorder in G.O.Ms.No.180, School Education Department, dated15.11.2011, wherein it was ordered as follows :"3.In the Government Order read above, Ordershave been issued to notify "a child belonging toDisadvantaged Group" and "a child belonging to weakersection" as follows:(i)"Child belonging to disadvantaged group"means a child who is an Orphan, or affected with HumanImmuno Deficiency Virus or a transgender or a child ofa scavenger in addition to the definition given in theRight of Children to Free and Compulsory education Act2009 and (ii) "Child belonging to weaker section"means a child belonging to such parents or guardianswhose annual income is lower than Rs.2,00,000/-(Rupees Two lakh only).4.The Government after careful examination andhave decided to reimburse expenditure to the unaidedschools with respect to the 25% of children belongingto the disadvantaged group and weaker sectioncategories at the rate of the expenditure incurred bythe State Government in Government Schools for a childOR the fee fixed by the Committee constituted underthe Tamil Nadu Schools (Regulation of Collection ofFee) Act, 2009 (Tamil Nadu Act 22 of 2009) WHICHEVERis LESS" and accordingly issued orders."It was contended that even in the absence of identifying the creamylayer for the socially and economically backwards classes, thepetitioner will be entitled to get admission under the saidcategory without regard to the economic ceiling. 15.It must be noted that the Supreme Court while upholdingthe right to fix the quota in respect of unaided non minorityschools for children belonging to disadvantaged group and weakersections, in Society for Unaided Private Schools of Rajasthan Vs.Union of India and another reported in 2012 (4) Scale 272 hadupheld the right of the Parliament to prescribe the criteria onlyin terms of Article 19(6) of the Constitution and not in terms of https://hcservices.ecourts.gov.in/hcservices/ Article 15 of the Constitution. In paragraph 10, the Supreme Courthad 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 theprivate unaided non-minority school, may specifypermissible percentage of the seats to beearmarked for children who may not be in a positionto pay their fees or charges. In T.M.A. PaiFoundation, this Court vide para 53 has observedthat the State while prescribing qualificationsfor admission in a private unaided institution mayprovide for condition of giving admission to smallpercentage of students belonging to weakersections of the society by giving them freeships, ifnot granted by the government. Applying the saidlaw, such a condition in Section 12(1)(c) imposedwhile granting recognition to the private unaidednon-minority school cannot be termed as unreasonable.Such a condition would come within the principle ofreasonableness in Article 19(6). Indeed, by virtue ofSection 12(2) read with Section 2(n)(iv), privateunaided school would be entitled to be reimbursedwith the expenditure incurred by it in providingfree and compulsory education to children belongingto the above category to the extent of per childexpenditure incurred by the State in a schoolspecified in Section 2(n)(i) or the actual amountcharged from the child, whichever is less. Such arestriction is in the interest of the generalpublic. It is also a reasonable restriction. Suchmeasures address two aspects, viz., upholding thefundamental right of the private management toestablish an unaided educational institution oftheir choice and, at the same time, securing theinterests of the children in the locality, inparticular, those who may not be able to pursueeducation due to inability to pay fees or chargesof the private unaided schools. We also do not see anymerit in the contention that Section 12(1)(c) violatesArticle 14. As stated, Section 12(1)(c) inter aliaprovides for admission to class I, to the extent of25% of the strength of the class, of the childrenbelonging to weaker section and disadvantaged group inthe neighbourhood and provide free and compulsoryelementary education to them till its completion.The emphasis is on “free and compulsory education”.Earmarking of seats for children belonging to aspecified category who face financial barrier in thematter of accessing education satisfies the test ofclassification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matterof right to education to children who are preventedfrom accessing education because they do not have the https://hcservices.ecourts.gov.in/hcservices/ means or their parents do not have the means to payfor their fees. As stated above, education is anactivity in which we have several participants.There are number of stakeholders including those whowant to establish and administer educationalinstitutions as these supplement the primaryobligation of the State to provide for free andcompulsory education to the specified category ofchildren. Hence, Section 12(1)(c) also satisfies thetest of reasonableness, apart from the test ofclassification in Article 14."(Emphasis added)16.It must be noted that the law relating to reservation ofseats in educational institutions is covered by Article 15(4) onlyas against the State within the meaning of Article 12 of theConstitution until the constitution was amended by the 93rdAmendment Act, 2005 with effect from 20.1.2006 introducing Article15(5), which reads as follows :"(5) Nothing in this article or in sub-clause (g) ofclause (1) of Article 19 shall prevent the State frommaking any special provision, by law, for theadvancement of any socially and educationally backwardclasses of citizens or for the Scheduled Castes or theScheduled Tribes in so far as such special provisionsrelate to their admission to educational institutionsincluding private educational institutions, whetheraided or unaided by the State, other than the minorityeducational institutions referred to in clause (1) ofArticle 30."17.The said Article came to be interpreted by the SupremeCourt in Sindhi Education Society v. Chief Secretary, Government ofNCT of Delhi, reported in (2010) 8 SCC 49 and in paragraph 83, itwas observed as follows:"83.Article 15(5) of the Constitution excludes theminority educational institutions from the power of theState to make any provision by law for the advancementof any socially or educationally backward classes ofthe citizens or for Scheduled Castes and ScheduledTribes in relation to their admission to educationalinstitutions including private educational institutionswhether aided or unaided. This article is capable ofvery wide interpretation and vests the State with powerof wide magnitude to achieve the purpose stated in thearticle......"18.Very recently, the Supreme Court in Indian MedicalAssociation v. Union of India reported in (2011) 7 SCC 179 heldthat reservation excluding the creamy layer can be brought withinthe meaning of Article 15(5) as Article 15(5) does not offend thebasic structure of the constitutional policy. In paragraphs 86 and87, the Supreme Court had observed as follows : https://hcservices.ecourts.gov.in/hcservices/ "86.With respect to minority educationalinstitutions, the imposition of reservations or theimposition of the duty to select non-minorities beyonda sprinkling would be an encroachment of freedomguaranteed by clause (1) of Article 30. With respect tonon-minority unaided institutions, imposition ofreservations was deemed to be an unreasonablerestriction on the freedom to engage in the occupationof “education” pursuant to sub-clause (g) of clause (1)of Article 19. Inasmuch as clause (5) of Article 15 isnow part of the Constitution, reservations by the Statefor “Socially and Educationally Backward Classes”without the creamy layer, and for the Scheduled Castesand the Scheduled Tribes are now constitutionallypermissible categories of State imposition on non-minority educational institutions.87.The status of constitutional permissibilityremoves the basis for finding reservations to be anunreasonable restriction in the freedom to selectstudents only on the basis of merit with respect to allthe seats in a non-minority unaided educationalinstitution. Consequently, the unaided non-minorityeducational institutions would have to comply with theState mandated reservations, selecting students withinthe specified reservation categories on the basis ofinter se merit."(Emphasis added)19.Before the introduction of the said provision, the lawon 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 inparagraph 132, the Supreme Court had observed as follows :"132.Our answer to the first question is thatneither the policy of reservation can be enforced bythe State nor any quota or percentage of admissionscan be carved out to be appropriated by the State in aminority or non-minority unaided educationalinstitution......"20.In the State of Tamil Nadu, the only law providing forreservation for backward classes, scheduled caste and scheduledtribes in educational institutions and appointments were governedby the Tamil Nadu Act 45 of 1994. Under the said Act, Section 4provides for reservation of seats in educational institutions bothfor backward classes, MBC, SC and STs. The term "educationalinstitution" is defined under Section 3(b), which reads asfollows ;(b)"educational institution" means,-(i)any college or other educationalinstitution, maintained by the State, or receiving aidout of the State funds, or affiliated to any https://hcservices.ecourts.gov.in/hcservices/ university, established by law including an university,college and a constitutent college; or(ii)any institute or training centre recognisedor approved by the Government, with the object ofpreparing, training or guiding its students for anycertificate, degree or diploma or other academicdistinctions granted or conferred by any university, orauthority established or approved in this behalf by theGovernment;"(Emphasis added)21.Even after the Tamil Nadu Act 45 of 1994, which reservedseats only in educational institutions maintained by the State orinstitutions receiving aid out of State funds, there is noreservation provided for the unaided educational institutions,whether minority or non minority. Subsequent to the introductionof Article 15(5) also, no special provision of law has been made bythe State in respect of aided or unaided institutions.22.The Supreme Court in the Society for Unaided PrivateSchools of Rajasthan's case did not uphold the reservation underSection 12(1)(c) based upon Article 15(5) since reservation notonly included the children belonging to disadvantaged group, butalso belonging to weaker sections. The weaker section was definedas the child whose parents, or guardians, annual income is lessthan Rs.2 lakhs. If that was the intention of the State that thechild whose parent's or guardian's annual income is less than Rs.2lakhs, than it is unthinkable for the petitioner, whose familyincome is more than Rs.30 lakhs, to contend that without anyceiling limit, they should be admitted under the category ofdisadvantaged group. 23.The concept of creamy layer was evolved by the SupremeCourt vide judgment in Indra Sawhney v. Union of India reported in1992 Supp (3) SCC 217. The Supreme Court while answering questionNo.3(d) regarding creamy layer held in paragraphs 790 to 793 asfollows :(d) ‘Means-test’ and ‘creamy layer’:790. ‘Means-test’ in this discussion signifiesimposition of an income limit, for the purpose ofexcluding persons (from the backward class) whoseincome is above the said limit. This submission is veryoften referred to as the “creamy layer” argument.Petitioners submit that some members of the designatedbackward classes are highly advanced socially as wellas economically and educationally. It is submitted thatthey constitute the forward section of thatparticular backward class — as forward as any otherforward class member — and that they are lapping up allthe benefits of reservations meant for that class,without allowing the benefits to reach the trulybackward members of that class. These persons are by no https://hcservices.ecourts.gov.in/hcservices/ means backward and with them a class cannot be treatedas backward. It is pointed out that since Jayasree17almost every decision has accepted the validity of thissubmission.791.On the other hand, the learned counsel for theStates of Bihar, Tamil Nadu, Kerala and other counselfor respondents strongly oppose any such distinction.It is submitted that once a class is identified as abackward class after applying the relevant criteriaincluding the economic one, it is not permissible toapply the economic criteria once again and sub-divide abackward class into two sub-categories. Counsel for theState of Tamil Nadu submitted further that at one stage(in July 1979) the State of Tamil Nadu did indeedprescribe such an income limit but had to delete it inview of the practical difficulties encountered and alsoin view of the representations received. In thisbehalf, the learned counsel invited our attention toChapter 7-H (pages 60 to 62) of the AmbashankarCommission (Tamil Nadu Second Backward ClassesCommission) Report. According to the respondents theargument of ‘creamy layer’ is but a mere ruse, a trick,to deprive the backward classes of the benefit ofreservations. It is submitted that no member ofbackward class has come forward with this plea and thatit ill becomes the members of forward classes to raisethis point. Strong reliance is placed upon theobservations of Chinnappa Reddy, J in Vasanth Kumar9 tothe following effect: (SCC p. 763, para 72)“ .. .. One must, however, enter a caveat to thecriticism that the benefits of reservation areoften snatched away by the top creamy layer ofbackward class or caste. That a few of the seatsand posts reserved for backward classes aresnatched away by the more fortunate among themis not to say that reservation is not necessary.This is bound to happen in a competitive societysuch as ours. Are not the unreserved seats andposts snatched away, in the same way, by the topcreamy layer of society itself? Seats reservedfor the backward classes are taken away by thetop layers amongst them on the same principle ofmerit on which the unreserved seats are takenaway by the top layers of society. How can it bebad if reserved seats and posts are snatchedaway by the creamy layer of backward classes, ifsuch snatching away of unreserved posts by thetop creamy layer of society itself is not bad?” https://hcservices.ecourts.gov.in/hcservices/

792.In our opinion, it is not a question ofpermissibility or desirability of such test but one ofproper and more appropriate identification of a class —a backward class. The very concept of a class denotes anumber of persons having certain common traits whichdistinguish them from the others. In a backward classunder clause (4) of Article 16, if the connecting linkis the social backwardness, it should broadly be thesame in a given class. If some of the members are fartoo advanced socially (which in the context,necessarily means economically and, may also meaneducationally) the connecting thread between them andthe remaining class snaps. They would be misfits in theclass. After excluding them alone, would the class be acompact class. In fact, such exclusion benefits thetruly backward. Difficulty, however, really lies indrawing the line — how and where to draw the line? For,while drawing the line, it should be ensured that itdoes not result in taking away with one hand what isgiven by the other. The basis of exclusion should notmerely be economic, unless, of course, the economicadvancement is so high that it necessarily means socialadvancement. Let us illustrate the point. A member ofbackward class, say a member of carpenter caste, goesto Middle East and works there as a carpenter. If youtake his annual income in rupees, it would be fairlyhigh from the Indian standard. Is he to be excludedfrom the Backward Class? Are his children in India tobe deprived of the benefit of Article 16(4)? Situationmay, however, be different, if he rises so higheconomically as to become — say a factory ownerhimself. In such a situation, his social status alsorises. He himself would be in a position to provideemployment to others. In such a case, his income ismerely a measure of his social status. Even otherwisethere are several practical difficulties too inimposing an income ceiling. For example, annual incomeof Rs 36,000 may not count for much in a city likeBombay, Delhi or Calcutta whereas it may be a handsomeincome in rural India anywhere. The line to be drawnmust be a realistic one. Another question would be,should such a line be uniform for the entire country ora given State or should it differ from rural to urbanareas and so on. Further, income from agriculture maybe difficult to assess and, therefore, in the case ofagriculturists, the line may have to be drawn withreference to the extent of holding. While the income ofa person can be taken as a measure of his socialadvancement, the limit to be prescribed should not besuch as to result in taking away with one hand what isgiven with the other. The income limit must be such asto mean and signify social advancement. At the sametime, it must be recognised that there are certainpositions, the occupants of which can be treated as https://hcservices.ecourts.gov.in/hcservices/ socially advanced without any further enquiry. Forexample, if a member of a designated backward classbecomes a member of IAS or IPS or any other AllIndia Service, his status is society (social status)rises; he is no longer socially disadvantaged. Hischildren get full opportunity to realise theirpotential. They are in no way handicapped in the raceof life. His salary is also such that he is above want.It is but logical that in such a situation, hischildren are not given the benefit of reservation. Forby giving them the benefit of reservation, otherdisadvantaged members of that backward class may bedeprived of that benefit. It is then argued for therespondents that ‘one swallow doesn't make the summer’,and that merely because a few members of a caste orclass become socially advanced, the class/caste as suchdoes not cease to be backward. It is pointed out thatclause (4) of Article 16 aims at group backwardness andnot individual backwardness. While we agree that clause(4) aims at group backwardness, we feel that exclusionof such socially advanced members will make the ‘class’a truly backward class and would more appropriatelyserve the purpose and object of clause (4). (Thisdiscussion is confined to Other Backward Classes onlyand has no relevance in the case of Scheduled Tribesand Scheduled Castes).793.Keeping in mind all these considerations, we directthe Government of India to specify the basis ofexclusion — whether on the basis of income, extent ofholding or otherwise — of ‘creamy layer’. This shall bedone as early as possible, but not exceeding fourmonths. On such specification persons falling withinthe net of exclusionary rule shall cease to be themembers of the Other Backward Classes (covered by theexpression ‘backward class of citizens’) for thepurpose of Article 16(4). The impugned OfficeMemorandums dated August 13, 1990 and September 25,1991 shall be implemented subject only to suchspecification and exclusion of socially advancedpersons from the backward classes contemplated by thesaid O.M. In other words, after the expiry of fourmonths 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 theGovernment of India and not otherwise."(Emphasis added)24.But, when the Parliament by law had reserved 27% ofseats for other backward communities by the Central EducationalInstitutions (Reservation in Admission) Act, 2006, it same came tobe challenged before the Supreme Court. The Supreme Court in seriesof orders known as Ashoka Kumar Thakur case upheld the validity of https://hcservices.ecourts.gov.in/hcservices/ the said provision. In Ashoka Kumar Thakur (8) v. Union of Indiareported in (2007) 4 SCC 361, the Supreme Court after referring toArticle 15(5) held that the concept of creamy layer rule is anecessary bargain between the competing ends of caste basedreservations and the principle of secularism. It was a part ofconstitutional scheme. It held that even for reservation underArticle 15(5), the creamy layer rule will have to be applied. Inparagraphs 39 and 40, the Supreme Court had observed as follows :"39.In Nair Service Society case3 it was noted asfollows: (SCC pp. 27-28, paras 51-54)“51. Recently, a Constitution Bench of this Courtin M. Nagaraj v. Union of India2 has reaffirmedthe importance of the creamy layer principle inthe scheme of equality under the Constitution.This Court held that the creamy layer principlewas one of the important limits on State powerunder the equality clause enshrined under Articles14 and 16 and any violation or dilution of thesame would render the State action invalid. Moreprecisely this Court held: (SCC p. 272, para 110)‘110. As stated above, the boundaries of thewidth of the power, namely, the ceiling limitof 50% (the numerical benchmark), theprinciple of creamy layer, the compellingreasons, namely, backwardness, inadequacy ofrepresentation and the overall administrativeefficiency are not obliterated by theimpugned amendments. At the appropriate time,we have to consider the law as enacted byvarious States providing for reservation ifchallenged. At that time we have to seewhether limitations on the exercise of powerare violated. The State is free to exerciseits discretion of providing for reservationsubject to limitation, namely, that theremust exist compelling reasons ofbackwardness, inadequacy of representation ina class of post(s) keeping in mind theoverall administrative efficiency. It is madeclear that even if the State has reasons tomake reservation, as stated above, if theimpugned law violates any of the abovesubstantive limits on the width of the powerthe same would be liable to be set aside.’52. This Court reiterated the limit on State powerimposed by the creamy layer rule and the invalidityof any State action in violation of the same byconcluding as follows: (M. Nagaraj case2, SCC p.278, paras 122-23)‘122. We reiterate that the ceiling limit of50%, the concept of creamy layer and thecompelling reasons, namely, backwardness, https://hcservices.ecourts.gov.in/hcservices/ inadequacy of representation and overalladministrative efficiency are allconstitutional requirements without which thestructure of equality of opportunity inArticle 16 would collapse.123. However, in this case, as stated above,the main issue concerns the “extent ofreservation”. In this regard the Stateconcerned will have to show in each case theexistence of the compelling reasons,namely, backwardness, inadequacy ofrepresentation and overall administrativeefficiency before making provision forreservation. As stated above, the impugnedprovision is an enabling provision. The Stateis not bound to make reservation for SCs/STsin matters of promotions. However, if theywish to exercise their discretion and makesuch provision, the State has to collectquantifiable data showing backwardness of theclass and inadequacy of representation ofthat class in public employment in additionto compliance with Article 335. It is madeclear that even if the State has compellingreasons, as stated above, the State will haveto see that its reservation provision doesnot lead to excessiveness so as to breach theceiling limit of 50% or obliterate the creamylayer or extend the reservationindefinitely.’53. This Court rationalised the creamy layer ruleas a necessary bargain between the competing endsof caste based reservations and the principle ofsecularism. The Court opined: (M. Nagaraj case2,SCC pp. 277-78, para 120)‘In Indra Sawhney1 this Court has, therefore,accepted caste as a determinant ofbackwardness and yet it has struck a balancewith the principle of secularism which is thebasic feature of the Constitution by bringingin the concept of creamy layer.’54. This Court, thus, has categorically laid downthe law that determination of creamy layer is apart of the constitutional scheme.”(emphasis supplied)40.It, therefore, needs no reiteration that the creamylayer rule is a necessary bargain between thecompeting ends of caste based reservations and theprinciple of secularism. It is a part ofconstitutional scheme. Therefore these cases have tobe examined in detail as to whether the stand of theUnion of India that creamy layer rule is applicable to https://hcservices.ecourts.gov.in/hcservices/ only Article 16(4) and not Article 15(5) is based onany sound foundation. That is more so because thelists relatable to Article 16(4) form the foundationalbase 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 theconcept of creamy layer will not apply to reservation meant forscheduled castes and schedule tribes as they are separate classesby themselves. In paragraph 43, it was observed as follows :"43.It is not in dispute that SCs and STs are aseparate class by themselves and the creamy layerprinciple is not applicable to them. Article 46 of theConstitution of India enjoins upon the State to promotewith special care the educational and economicinterests of the weaker sections of the people andprotect them from social injustice and all forms ofexploitation......."26.The fact that the State of Tamil Nadu had not identifiedthe creamy layer within the social economical backward classes isnot a consolation for the petitioner to contend thatnotwithstanding the identification, they should be consideredwithout any ceiling limit cannot be countenanced by this court. Asthe intention of the Act was delineated and the provisions ofSection 12(1)(c) being upheld within the touchstone of Article 19(6), the contention raised by the petitioner to the contrary cannotbe accepted. If it is accepted, it will do violence to the objectof the RCE Act and the quota meant for the children belonging tothe disadvantaged group and weaker sections will be cornered bypersons claiming relief under the category of social and economicalbackward classes without the exclusion of creamy layers. The factthat weaker section was defined by the State as the annual incomeof parents or guardians is less than Rs.2 lakhs, in the absence ofthe State prescribing any creamy layer under the list of socialeconomical backward classes, the same income ceiling should alsoapply to SEBC categories. Of course, such an income limit cannot beprescribed for SC and ST as noted already by the judgment of theSupreme Court. It is left to the State to specify the creamy layerunder which certain members belonging to SEBC categories will beexcluded from getting the benefit provided for the said class.Therefore, this court is not willing to accept the stand of thepetitioner that even without any income ceiling, his child shouldbe considered as the class belonging to disadvantaged group andshould get the right of admission under 25% quota reserved fordisadvantaged group and weaker sections. Hence the secondcontention must also fail. https://hcservices.ecourts.gov.in/hcservices/

27.In view of the above, the writ petition will standdismissed. No costs. Consequently connected miscellaneous petitionstands closed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarvvkTo1.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.+ 1 cc to M/s. S. Vadivelu, Sr.40492+ 1 cc to Mr.K. Viswanath, Sr.40504W.P.No.13330 of 2012MG(CO)Eu 18.7.12