Cases Referred:

Advocates:
A.SHARAN, B.B.Singh, BINA GUPTA, D.S.BORA, HARISH N.SLAVE, IRSHAD AHMAD, K.K.VENUGOPAL, K.N.BHATT, KAPIL SIBAL, M.M.KASHYAP, N.K.GOEL, N.S.BISHT, NAVIN PRAKASH, P.P.TRIPATHI, R.B.MISHRA, RAJIV DHAWAN, RAMESH CHAND PANDEY, SHASHI KIRAN SHETTY, SHILA GOEL, USHA MEHRA

Judgment

KULDIP SINGH, J.

(1) CONSTITUTIONAL validity of the criteria, for determining the "creamy layer" for the purpose of exclusion from backward classes, laid down by the States of Bihar and Uttar Pradesh, has been challenged in these writ petitions under Article 32 of the Constitution of India.

(2) A nine-Judge bench of this court in "Mandal case"- Indra Sawhney v. Union of India - authoritatively interpreted various aspects of Article 16(4 of the Constitution of India. While holding that Article 16(4 aims at group backwardness this court came to the conclusion that socially advanced members of a backward class - "creamy layer" - have to be excluded from the said class. It was held that the class which remains after excluding the "creamy layer" would more appropriately serve the purpose and object of Article 16(4.

(3) THE protective discrimination in the shape of job reservations under Article 16(4 has to be programmed in such a manner that the most deserving section of the backward class is benefited. Means test by which "creamy layer" is excluded, ensures such a result. The process of identifying backward class cannot be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backwardness but while identifying the class they may have come within the collectivity. It is often seen that comparatively rich persons in the backward class are able to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practised on them by the higher class is in turn practised by the affluent members of the backward class on the poorer members of the same class. The benefits of social privileges like job reservations are mostly chewed up by the richer or more affluent S. of the backward class and the poorer and the really backward sections among them keep on getting poorer and more backward. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniform. The jobs are so very few in comparison to the population of the backward classes that it is difficult to give them adequate representation in the State services. It is, therefore, necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job reservations is necessary to benefit the needy S. of the class. The means test is, therefore, imperative to skim off the affluent section of the backward class.

(4) WE may refer to the opinions given by the learned Judges in Mandal case on the question of exclusion of the "creamy layer" from the backward class.

(5) P.B. Sawant, J. spoke about the "creamy layer" in the following words:

"THE correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicon of backwardness, they should be taken out from the backward classes and should be made disentitled to the provisions meant for the said classes. It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others? Is it the capacity to compete for Class IV or Class III or higher class posts? A Class IV employees children may develop capacity to compete for Class III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class IV posts. It cannot, however, be argued that on that account, he has reached the creamy level. If the adequacy of representation in the services as discussed earlier, is to be evaluated in terms of qualitative and not mere quantitative representation, which means representation in the higher rungs of administration as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level posts also. Such capacity will be acquired only when the backward S. reach those levels or at least, near those levels."

(6) R.M. Sahai, J. held that the exclusion of "creamy layer" is a social purpose. Any legislation or executive action to remove such persons individually or collectively cannot be constitutionally invalid. The learned Judge elaborated his conclusions as under:

"MORE backward and backward is an illusion. No constitutional exercise is called for it. What is required is practical approach to the problem. The collectivity or the group may be backward class but the individuals from that class may have achieved the social status or economic affluence. Disentitle them from claiming reservation. Therefore, while reserving posts for backward classes, the departments should make a condition precedent that every candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart, provision should be made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolisation of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated."

(7) B.P. Jeevan Reddy, J. speaking for the court enunciated the concept of "creamy layer" in the following words:

"THE very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4 of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs. 36,000.00 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify socialadvancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of INDIAN ADMINISTRATIVE SERVICE or INDIAN FOREIGN SERVICE or any other All India Service, his status in 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 doesnt 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 Article 16 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 make 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). Keeping in mind all these considerations, we direct the government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise - of creamy layer."

(8) IT is difficult to draw a line where a person, belonging to the backward class, ceases to be so and becomes part of the "creamy layer". It is not possible to lay down the criteria exhaustively. This court has, however, speaking through Jeevan Reddy, J., dealt with the question elaborately and has brought home the point succinctly by illustrating various stages where a member of a backward class ceases to be backward and starts floating with the "creamy layer".

(9) PURSUANT to the directions by this court in Mandal case the government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued office memorandum dated 8/ 9/1993 providing for 27 reservation for the Other Backward Classes. Para 2(c) of the memorandum excludes the persons/sections mentioned in Column 3 of the Schedule to the said memorandum. In other words, the Schedule consists of the "creamy layer". It would be useful to reproduce the relevant paras of the said memorandum hereunder:

"OFFICE MEMORANDUM Subject: Reservation for Other Backward Classes in Civil Posts and Services under the government of India - regarding. The undersigned is directed to refer to this Departments OM No. 36012/31/90-Estt. (SCT), dated the 13/08/1990 and 25/09/1991 regarding reservation for Socially and Educationally Backward Classes in Civil Posts and Services under the government of India and to say that following the Supreme court judgment in the Indra Sawhney v. Union of India [Writ Petition (Civil) No. 930 of 1990] the government of India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons/sections from the benefits of reservations for Other Backward Classes in Civil Posts and Services under the government of India. 2. Consequent to the consideration of the Expert Committees recommendations this Departments Office Memorandum No. 36012/31/90-Estt. (SCT), dated 13/8/1990 referred to in para (1 above is hereby modified to provide as follows: (a) 27 (twenty-seven per cent) of the vacancies in Civil Posts and Services under the government of India, to be filled through direct recruitment, shall be reserved for the Other Backward Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately. (b) * * * (c) (i) The aforesaid reservation shall not Apply to persons/sections mentioned in Column 3 of the Schedule to this office memorandum. (ii) The rule of exclusion will not Apply to persons working as artisans or engaged in hereditary occupations, callings. A list of such occupations, callings will be issued separately by the Ministry of Welfare. (d)-(e) SCHEDULE Description of category To whom rule of exclusion will apply

1 2 3

I. CONSTITUTIONAL POSTS Son(s) and daughter(s) of

(a) President of India;

(b) Vice-President of India;

(c) Judges of the Supreme

Court and of the High Courts;

(d) Chairman & Members of

UPSC and of the State

Public Service

Commission; Chief

Election Commissioner;

Comptroller and Auditor

General of India;

(e) persons holding

constitutional positions

of like nature.

II. SERVICE CATEGORY Son(s) and daughter(s) of

A. Group A/Class I officers (a) parents, both of whom

of the All India Central (b) are Class I officers;

and State Services parents, either of whom

(Direct Recruits) is a Class I officer;

(c) parents, both of whom

are Class I officers, but

one of them dies or

suffers permanent

incapacitation;

(d) parents, either of whom

is a Class I officer and

Àäf such parent dies or

suffers permanent

incapacitation and before

such death or such

incapacitation has had

the benefit of

employment in any

International Organisation

like UN, IMF, World

Bank etc. for a period of

not less than 5 years;

(e) parents, both of whom

are Class I officers die or

suffer permanent

incapacitation and before

such death or such

incapacitation of the

both, either of them has

had the benefit of

employment in any

International Organisation

like UN, IMF, World

Bank, etc. for a period of

not less than 5 years:

Provided that the rule of

exclusion shall not apply in the

following cases:

(a) Son(s) and daughter(s)

of parents either of

whom or both of whom

Àäf are Class I officers and

such parent(s) dies/die or

suffer permanent

incapacitation;

(b) a lady belonging to OBC

category has got married

to a Class I officer, and

may herself like to apply

for a job.

B. Group B/Class II Son(s) and daughter(s) of

officers of the Central (a) Parents both of whom are

and State Services Class II officers;

(Direct Recruitment)

(b) parents of whom only

the husband is a Class II

officer and he gets into

Class I at the age of 40

or earlier;

(c) parents, both of whom

are Class II officers and

one of them dies or

suffers permanent

incapacitation and either

one of them has had the

benefit of employment in

any International

Organisation like UN,

IMF, World Bank etc. for

a period of not less than

5 years before such

death or permanent

incapacitation;

(d) parents of whom the

husband is a Class I

officer (direct recruit or

pre-forty promoted) and

the wife is a Class II

officer and the wife dies;

or suffers permanent

incapacitation; and

(e) parents, of whom the

wife is a Class I officer

(direct recruit or pre-forty

promoted) and the

husband is a Class II

officer and the husband

dies or suffers permanent

incapacitation:

Provided that the rule of

exclusion shall not apply in the

following cases:

Son(s) and daughter(s) of

(a) parents both of whom

are Class II officers and

one of them dies or

suffers permanent

incapacitation;

(b) parents, both of whom

are Class II officers and

both of them die or

Àäf suffer permanent

incapacitation, even

though either of them

has had the benefit of

employment in any

International Organisation

like UN, IMF, World

Bank etc. for a period of

not less than 5 years

before their death or

permanent incapacitation.

C. Employees in Public The criteria enumerated in A

Sector Undertakings etc. and B above in this category

will apply mutatis mutandis to

officers holding equivalent or

comparable posts in PSUs,

Banks, Insurance

Organisations, Universities etc.

and also to equivalent or

comparable posts and positions

under private employment,

pending the evaluation of the

posts on equivalent or

comparable basis in these

institutions, the criteria

specified in Category VI below

will apply to the officers in

these institutions.

III. ARMED FORCES Son(s) and daughter(s) of

INCLUDING parents either or both oÀäff whom

PARAMILITARY FORCES is or are in the rank of Colonel

(Persons holding civil and above in the Army and to

posts are not included) equivalent posts in the Navy

and the Air Force and the

Paramilitary Forces:

Provided that:

(i) If the wife of an Armed

Forces officer is herself

in the Armed Forces (i.e.

the category under

consideration) the rule of

exclusion will apply only

when she herself has

reached the rank of

Colonel;

(ii) the service ranks below

Colonel of husband and

wife shall not be clubbed

together;

(iii) if the wife of an officer

in the Armed Forces is

in civil employment, this

will not be taken into

account for applying the

rule of exclusion unless

she falls in the service

category under Item No.

II in which case the

criteria and conditions

Àäf enumerated therein will

apply to her

independently.

IV. PROFESSIONAL CLASS

AND THOSE ENGAGED IN

TRADE AND INDUSTRY

(I) Persons engaged in Criteria specified against

profession as a doctor, Category VI will apply—

lawyer, chartered

unirrigated land, as

follows:

(i) The rule of exclusion

will apply where the

precondition exists that

the irrigated area (having

been brought to a single

type under a common

denominator) 40 or

more of the statutory

ceiling limit for irrigated

land (this being

calculated by excluding

the unirrigated portion).

If this precondition of

not less than 40 exists,

then only the area of

unirrigated land will be

taken into account. This

will be done by

converting the

uÀäfnirrigated land on the

basis of the conversion

formula existing, into the

irrigated type. The

irrigated area so

computed from

unirrigated land shall be

added to the actual area

of irrigated land and if

after such clubbing

together the total area in

terms of irrigated land is

80 or more of the

statutory ceiling limit for

irrigated land, then the

rule of exclusion will

apply and disentitlement

will occur;

(ii the rule of exclusion will

not apply if the land

holding of a family is

exclusively unirrigated.

B. Plantations

(i) Coffee, tea, rubber etc. Criteria of income/wealth

specified in Category VI below

will apply.

(ii) Mango, citrus, apple Deemed as agricultural

plantations etc. holding and hence criteria at A

above under this category will

apply.

C. Vacant land and/or Criteria specified in Category

buildings in urban areas VI below will apply,

or urban agglomerations Explanation: Building may be

used for residential, industrial

or commercial purpose and the

like two or more such

purposes.

VI. INCOME/WEALTH TEST Son(s) and daughter(s) of

(a) persons having gross

annual income of Rs.1

lakh or above or

possessing wealth above

the exemption limit as

prescribed in the Wealth

Tax Act for a period of

three consecutive years;

(b) persons in Categories I,

II, III and V-A who are

not disentitled to the

benefit of reservation but

have income from other

sources of wealth which

will bring them within

the income/wealth

criteria mentioned in (a)

above.

Explanation:

(i) Income from salaries or

agricultural land shall

not be clubbed;

(ii) the income criteria in

terms of rupee will be

modified taking into

account the change in its

value every three years.

If the situation, however,

so demands, the

interregnum may be less.

Explanation. Wherever

the expression permanent

incapacitation

occurs in this Schedule,

it shall mean

incapacitation which

results in putting an

officer out of service.

ecutive years; (b) persons in Categories I, II, III and V-A who are not disentitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in (a) above. Explanation: (i) Income from salaries or agricultural land shall not be clubbed;

(11) IN the light of the above background, we may examine the criteria for the identification of the "creamy layer" as laid down by the States of Bihar and Uttar Pradesh.

(12) THE governor of Bihar promulgated Ordinance No. 5 of 1995 on 27/1/1995 called "The Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995". By the said Ordinance Section 4 of the Bihar Act 3 of 1992 was amended and after the second proviso, the following proviso was added:

"PROVIDED also that reservation under clause (d) shall not Apply to the category of backward classes specified in Schedule III."

(13) SCHEDULE III is reproduced hereunder:

"SCHEDULE III [See Section 4(2] 1. The son or daughter of the President of India, the Vice-President of India, the chief justice and Judges of the Supreme Court of India, the chief justice and Judges of the High courts, the Chairman and Members of the Union public service commission and the Chief Election Commissioner; 2. The son or daughter of such officers who has been directly recruited in Class I Services of the central government or a State government or an Undertaking or an institution fully or partially financed by them; and (a) whose income from salary is rupees ten thousand or more per mensem; and (b) whose wife or husband, as the case may be, is at least a graduate; and (c) who or his wife or her husband, as the case may be, owns a a house in an urban area; and (d) whose mother or father has also been directly recruited to Class I Services. Explanation.Class I means the pay bracket fixed by the State government from time to time for Class I. 3. The son or daughter of such person engaged as doctor, advocate, chartered accountant, tax consultant, financial consultant, management consultant, architect or other professionals; and (a) whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and (b) whose wife or husband, as the case may be, is at least a graduate; and (c) whose family owns immovable property at least of rupees twenty lakhs. 4. The son or daughter of such person engaged in trade or commerce; and (a) whose average income from all sources for three consecutive Financial years is not less than rupees ten lakhs per annum; and (b) whose wife or husband, as the case may be, is at least a graduate; and (c) whose family owns immovable property at least of rupees twenty lakhs, 5. The son or daughter of such industrialist(a) whose level of investment in running unit or units is more than rupees ten crores; and (b) such unit or units are engaged in commercial production for at least five years; and (c) his wife or husband, as the case may be, is at least a graduate. 6. The son or daughter of such agricultural landholder(a) whose average income from all sources other than agriculture for three consecutive financial years is not less than rupees ten lakhs per annum; and (b) whose wife or husband, as the case may be, is at least a graduate; and (c) who or his wife or her husband, as the case may be, owns house at least of rupees twenty lakhs in an urban area. 7. The son or daughter of person, other than the persons specified in Serial Nos. 1 to 6 of this Schedule (a) whose main source of income is other than animal husbandry, fisheries, poultry, weaving, craftsmanship, handicraft and artisanship; and (b) whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and (c) whose wife or husband, as the case may be, is at least a graduate; and (d) whose family owns immovable property at least of rupees twenty lakhs. 8. If a person included in Serial Nos. 1 to 7 of this Schedule performs intercaste marriage with a backward class person other than the categories under Serial Nos. 1 to 7 of this Schedule, his/her son or daughter shall not be excluded. Note I. The level of income and the value of property shall be modified taking into account the variation in the money value every three years or less period, as the situation may demand. II. An affidavit filed by the father or the mother of the candidate, or in case of their death, by the candidate himself, shall be deemed to be decisive in respect of income, value of property and educational qualification."

(14) SO far as the State of Uttar Pradesh is concerned the categories sought to be excluded from the backward classes (creamy layer) are mentioned in Schedule II read with Section 3(b) of the Uttar Pradesh Public Services Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994 (4 of 1994. The said categories are as under: Categories of persons excluded Criteria for exclusion

1. Son(s) and daughter(s) of

(a) IAS, IFS, IPS, Indian Forest (i) income from salary of such member

Service, other Central service of service is Rs.10,000 or above per

(direct or promotee) mensem.

(ii) spouse is at least graduate.

(b) U.P. Civil Services, U.P. Police (iii) he or his spouse owns a

Service, State Service (direct recruit). house in urban area.

(c) Group A/Class I officers of any

Deptt. or Ministry of Govt. of India or

Educational, Research or other

institutions [No. 1

included in above (a)].

(d) Group A/Class I officer of

any Deptt. or Institution of

State Govt. [No. 1 included in (b)

above].

(e) An officer of defence forces

or paramilitary forces not below

the rank of Colonel or equivalent.

2. Son(s) and daughter(s) of—

persons engaged in profession

as a doctor, surgeon, engineer, (i) his average income from all

lawyer, architect, chartered sources should not be less

accountant, media and information than Rs.10 lakhs per year

professional, management and for 3 consecutive financial

other consultant, film artiste and years.

other film professional, running (ii) spouse at least a graduate.

educational institution or coaching (iii) his family property

institute or engage@åfd in the business (immovable) should be

as a share broker or in worth Rs 20 lakhs.

entertainment business.

3. Son(s) and daughter(s) of (i) provided whose average

— businessman. income for 3 consecutive

financial years is not less

than Rs 10 lakhs per

annum.

(ii) spouse at least a graduate.

(iii) immovable family property

worth at least Rs 20 lakhs.

4. Son(s) and daughter(s) of (i) whose level of investment

— industrialist. in running units is over

Rs.10 crores and such units

are engaged in production

for at least 5 years.

(ii) spouse at least a graduate.

5. Son(s) and daughter(s) of (i) has an income of Rs.10

— a person whose holding (ii) lakhs in a year from sources

is within limit fixed under other than agriculture.

the U.P. Imposition of his spouse at least a

Ceiling on Land Holdings graduate.

Act, 1960.

6. Son(s) and daughter(s) of (i) whose income from all

— any other person not sources for 3 consecutive

mentioned in aforementioned financial years is not less

categories. than Rs 10 lakhs per

annum.

(ii spou@åfse at least a graduate.

(iii) immovable family property

worth at least Rs 20 lakhs.

align=top> 3. Son(s) and daughter(s) of (i) provided whose average — businessman. income for 3 consecutive financial years is not less than Rs 10 lakhs per annum. (ii) spouse at least a graduate. (iii) immovable family property worth at least Rs 20 lakhs. 4. Son(s) and daughter(s) of (i) whose level of investment — industrialist. in running units is over Rs.10 crores and such units are engaged in production for at least 5 years. (ii) spouse at least a graduate. 5. Son(s) and daughter(s) of (i) has an income of Rs.10 — a person whose holding (ii) lakhs in a year from sources is within limit fixed under other than agriculture. the U.P. Imposition of his spouse at least a Ceiling on Land Holdings graduate. Act, 1960. 6. Son(s) and daughter(s) of (i) whose income from all — any other person not sources for 3 consecutive mentioned in aforementioned financial years is not less categories. than Rs 10 lakhs per annum. (ii spou@åf "

(15) THIS court has categorically held in Mandal case that a person, belonging to a backward class, who becomes member of IAS, INDIAN FOREIGN SERVICE or any other All India Service, his children cannot avail the benefit of reservation. The States of Bihar and Uttar Pradesh have added further conditions such as salary of rupees ten thousand or more per mensern, the wife or husband to be a graduate and one of them owning a house in an urban area. So far" as the professionals are concerned, an income of Rs. 10 lakhs per annum has been fixed as the criterion. It is further provided that the wife or husband is at least a graduate and the family owns immovable property of the value of at least, rupees twenty lakhs. Similarly, the criteria regarding traders, industrialists, agriculturists and others is wholly arbitrary apart from being contrary to the guidelines laid down by this court in Mandal case .

(16) MULTIPLE conditions have been provided in all the categories. The spouse to be a graduate and holding property in urban area, are the conditions attached to almost every category. These conditions have no nexus with the object sought to be achieved. Since the conditions are not severable the two criterias as a whole have to be struck down.

(17) THIS court in Mandal case has clearly and authoritatively laid down that the affluent part of a backward class called "creamy layer" has to be excluded from the said class and the benefit of Article 16(4 can only be given to the class which remains after the exclusion of the "creamy layer". The backward class under Article 16(4 means the class which has no element of "creamy layer" in it. It is mandatory under Article 16(4 as interpreted by this court that the State must identify the "creamy layer" in a backward class and thereafter by excluding the "creamy layer" extend the benefit of reservation to the class which remains after such exclusion. This court has laid down, clear and easy to follow, guidelines for the identification of "creamy layer". The States of Bihar and Uttar Pradesh have acted wholly arbitrary and in utter violation of the law laid down by this court in Mandal case . It is difficult to accept that in India where the per capita national income is Rs. 6,929.00 1993-94, a person who is a member of the INDIAN ADMINISTRATIVE SERVICE and a professional who is earning less than Rs. 10 lakhs per annum is socially and educationally backward. We are of the view that the criteria laid down by the States of Bihar and Uttar Pradesh for identifying the "creamy a layer" on the face of it is arbitrary and has to be rejected.

(18) WE, therefore, hold that the above-quoted criteria, for identification of "creamy layer", laid down by the States of Bihar and Uttar Pradesh are violative of Article 16(4, wholly arbitrary violative of Article 14 and against the law laid down by this court in Mandal case .

(19) WE allow the writ petitions and quash (except clause 1 of Schedule III) the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995 (also the Act if Ordinance has been converted into Act). We also quash Schedule II read with Section 3(b) of the Uttar Pradesh Public Services Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994.

(20) WE further direct that for the Academic Year 1995-96 the States of Uttar Pradesh and Bihar shall follow the criteria laid down by the government of India, reproduced above, in the memorandum dated 8/9/19933. It will be open to the two States to lay down fresh criteria for the subsequent years in accordance with law. No costs.

(21) MR Venugopal, learned counsel appearing for the petitioners, stated that there are various other law points in these writ petitions which were not raised and he sought liberty to raise the same in appropriate proceedings, if necessary. We order accordingly.