Before Assembly elections in five states, the NDA government has quietly introduced a crucial change in the reservation policy by implementing the salary criteria for identifying the creamy layer for the civil services exam this year. Noting that the annual salary of their parents is over Rs 6 lakh, the DoPT has rejected reservation benefit to at least 20 OBC candidates by including them under the creamy layer. Some of them have approached CAT, others have filed a petition in the Supreme Court, which Monday directed the DoPT to inform all the selected OBC candidates this year whether they would like to implead in the petition.
The parents of these candidates are working in government agencies such as PSUs, banks and universities. Their OBC certificates had been verified by the UPSC when they had filled the exam form. The DoPT sent them letters questioning their OBC status, as reported by The Indian Express earlier, in the first week of June only after they had cleared the exam. The DoPT has introduced the change by implementing a 2004 Office Memorandum that allowed salary criteria to identify the creamy layer among OBCs for children of parents working in various government agencies. Commissions for both the OBCs and the SCs have strongly objected to the move and asked the DoPT to scrap the new rule.
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Challenging this 2004 Office Memorandum, the aggrieved candidates in their petitions point at “an anomalous situation in the scheme of reservation for Other Backward Classes (OBCs) where children of Class III employees of State and Central Government would be entitled for reservation, but children of a similarly placed employees of a public sector undertaking (PSU), bank, university etc. would not be considered for such reservation as they would be considered to be Creamy Layer”. They also question the rationale of implementing this old office memorandum after 12 years without legislative discussion.
When BJP MP Ganesh Singh asked the DoPT about this change in Lok Sabha on November 16, MoS Ministry of Personnel Jitendra Singh replied that “the 2004 OM was a mere clarification of the 1993 OM”. The 1993 memorandum provided detailed rules for the reservation policy. “I am yet to take note of that circular. I have asked my officers to put up this matter before me,” Minister of Social Justice and Empowerment Thawar Chand Gehlot told The Indian Express. DoPT officials did not respond to phone calls and messages.
Under the 1993 memorandum, certain categories are listed under the creamy layer. While categories like Constitutional posts, Group A/Class I and Group B/Class II are thoroughly enumerated, some categories are not. These categories are merely defined in reference to Group A and Group B services, and include “officers holding equivalent or comparable posts” in PSUs, banks, insurance organisations, universities, and private employment”. The guidelines note that “pending the evaluation of the posts on equivalent or comparable basis”, wealth/income test will be applied to identify the creamy layer.
Since the central government has not yet identified comparable posts in these organisations, the income test comes into play. The wealth/income test enumerated in Clause VI of the guidelines caps the gross annual income at Rs 6 lakh for three consecutive years, but it adds a crucial rider that “income from salaries or agricultural land shall not be clubbed”. In October 2004, DoPT issued an Office Memorandum that singled out children of persons employed in PSUs, banks etc and noted where equivalence had not been evaluated, salary criteria would be applied for determining creamy layer status. However, that memorandum and the consequent salary criteria were never implemented so far.