Allowed

Dr Latha K v. the Deputy Commissioner and Chairman, District Caste and Income Verification Committee

Karnataka HC2 Feb 2023WP/1788/2023

Case brief

AI extract

What is this about?

The writ petition sought a direction to issue a caste and income validity certificate. The court allowed the petition, directing immediate issuance of the certificate, and ordered compensation of three months' salary for the respondent's callous delay, recoverable from the responsible officer.

What did the court decide?

Direction to issue validity certificate forthwith and payment of compensation of three months' salary, recoverable from the 2nd respondent officer.

Dr Latha K Vs the Deputy Commissioner and Chairman… — Caste Atrocities | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 1788 OF 2023 (GM-CC)

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BETWEEN:

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DR LATHA K., D/O J.KRISHNA MURTHY, AGED ABOUT 34 YEARS, R/AT NO.24, 6^TH 'B' CROSS, BALAJI NAGAR, BSK 3RD STAGE, BENGALURU - 560 085.

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…PETITIONER

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(BY SRI J PRASHANTH, ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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THE DEPUTY COMMISSIONER AND CHAIRMAN, DISTRICT CASTE AND INCOME VERIFICATION COMMITTEE KANDAYA BHAVAN, K.G.ROAD, BENGALURU - 560 001.

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MEMBER SECRETARY AND DISTRICT OFFICER, BACKWARD CLASS AND WELFARE DEPARTMENT BENGALURU URBAN DISTRICT, 1^ST FLOOR, VISHVESHVARAYYA TOWER, DR.B.R.AMBEDKAR VEEDHI, BENGALURU - 560 001.

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TAHSILDAR BENGALURU SOUTH DISTRICT, KANDAYA BHAVAN, K.G.ROAD, BENGALURU - 560 001.

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DEPUTY SECRETARY (ADMIN) AND MEMBER OF DISTRICT CAST AND INCOME VERIFICATION COMMITTEE ZILLA PANCHAYATH, BENGALURU - 560001

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…RESPONDENTS

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(BY SRI M.VINOD KUMAR, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECTING THE R1 AUTHORITIES TO ISSUE VALIDITY CERTIFICATE TO THE PETITIONER BASED ON THE JUDGEMENT RENDERED BY THE HONBLE HIGH COURT OF KARNATAKA, IN THE CASE OF SMT. YOGESHWARI AND STATE OF KARNATAKA AND OTHERS VIDE ANNEXURE-N DATED 19.11.2018 AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus directing respondent No.1 to issue validity certificate in terms the judgment rendered by this Court in W.P.NO.24115/2018 C/W. W.P.NO.3390/2018 in the case of THE STATE OF KARNATAKA VS. SMT. YOGESHWARI, DISPOSED ON 19.11.2018 , and has further sought to consider her representation dated 05.12.2022.

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Heard Sri J. Prashanth, learned counsel for petitioner and Sri M. Vinod Kumar, learned Additional Government Advocate appearing for the respondents.

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3. Sans unnecessary details, facts in brief are as follows:-

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The petitioner belongs to 3A category, a backward class, completes her Bachelor of Ayurvedic Medicine and Surgery and MS in Shalyatantra from the Rajiv Gandhi Institute of Health Sciences in the year 2015. The Karnataka Public Service Commission (‘the Commission’ for short) issues a notification dated 30.07.2020, calling for applications from eligible candidates for several posts Medical Officers including Assistant Professor (Ayurveda), in the Department of Shalyatantra. In terms of the said notification, the petitioner applied claiming reservation as other backward class - category 3A on the basis of the caste and income. The petitioner participates in the selection process. The Commission issues a provisional select list and later, notifies a final select list selecting several candidates to the post of Assistant Professor of Ayurveda, Department of Shalyatantra. The final select list was notified

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on 24.06.2022. The petitioner’s name was found in the final select list.

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The petitioner later submitted an application seeking validity certificate of caste and income certificate in prescribed format along with all the documents to respondent No.2, the Department of Backward Class and Welfare Department on 20.09.2022. The second respondent on the application of the petitioner communicates the same to the Tahsildhar contending that there were two reports and as per one report, the annual income of the family is Rs.2,42,184/- and another was taking the income of the husband of the petitioner at Rs.8,05,188/-. It is therefore, the second respondent directed the third respondent - Tahsildar to immediately submit a report for the previous year from the date of notification, by his communication dated 03.11.2022. After the communication, the third respondent issues a notice to the petitioner to appear before him on 09.11.2022. The petitioner claims to have appeared before him and also submitted the settled legal position that the caste of the husband of the petitioner should not be taken into consideration but the caste of the parent.

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Later, the petitioner was asked to appear before respondent No.2 seeking validation of the caste and income certificate. The petitioner appears before the second respondent. When no reply was received nor a validity certificate to the hands of the petitioner is issued, a representation is submitted before the Deputy Commissioner on 05.12.2022, bringing it to the notice of the judgment rendered by this Court on the issue. Despite passage of three months, no validity certificate is issued to the petitioner. It is then, the petitioner has knocked the doors of this Court seeking the aforesaid directions.

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Learned counsel for the petitioner, J.Prashanth, would submit that there is no warrant for the second or third respondent for delaying in issuance of validity certificate as the law in this regard is too well settled, in terms of the judgment rendered by this Court in the case of SMT. YOGESHWARI (supra) , with regard to the issuance of validity certificate of caste and income certificate of other backward classes. He would submit that, on 17.10.2022, the candidates who were selected along with the petitioner have reported to duty and

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are working and it is only the petitioner is not able to report to duty and the only issue is, non-issuance of a validity certificate.

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On the other hand, the learned Additional Government Advocate would submit that he is not in a position to secure any instructions as respondent No.3 has repeatedly ignored his communications and calls seeking assistance for a resolution of the issue in the lis . The learned Additional Government Advocate pleads helplessness.

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I have given my anxious consideration to the

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submissions made by the respective learned counsel and have perused the material on record.

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It is not in dispute that the petitioner belongs to backward class - category 3A and has a certificate to that effect. The Commission issues a notification on 30.07.2020, calling for application from eligible candidates for various posts in the Department of Karnataka Ayurveda, Unani, Siddha, Homoeopathy, Nature Cure and Yoga (Ayush) etc. The petitioner finding herself eligible applies to the post of Assistant

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Professor (Ayurveda), Department of Shalyatantra, enclosing a copy of the caste and income certificate depicting the caste and income of her parent as she belongs to Category 3A. On scrutiny of the applications and the merit, a provisional selection list was notified in which, the name of the petitioner figured. After verification of the documents, a final select list also comes to be issued on 24.06.2022, here again, the name of the petitioner figures for appointment to the post of Assistant Professor (Ayurveda), Department of Shalayantra, under the Residual parent cadre.

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There was one more candidate who was notified in the final select list, who was in Hyderabad – Karnataka Cadre. After which, the petitioner sought for grant of validity certificate from the hands of the competent authority, in a prescribed format. The District Officer, Department of Backward Classes and Welfare noticing the fact that the petitioner is married, and if the income of the husband is taken into consideration, she would not be entitled for issuance of validity certificate and if the income of the father is taken, she would be entitled to, generating this unnecessary obfuscation refers the matter to

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the Tahsildhar in terms of his communications dated 23.09.2022 and 03.11.2022. The Tahsildhar directs presence of the petitioner on 09.11.2022. The petitioner appears and submits all the documents. Later, the District Officer directs presence of the petitioner. The petitioner appears and again submits all the necessary documents. When no validity certificate is issued, the petitioner knocks at the doors of respondent Nos.2 and 3 and also submits a representation to the first respondent - Deputy Commissioner who is the Chairman of the District Caste and Income Verification Committee, on 05.12.2022. Even then, no validity certificate is issued. It is then, the petitioner knocks at the doors of this Court seeking a direction.

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On the aforesaid facts, what would unmistakably emerge is, the second respondent has generated unto itself unnecessary doubt as to what should be the criteria for grant of income and caste certificate. A certificate of caste and income is already issued to the petitioner by the competent authority. A validity certificate of the caste and income is what is sought by the petitioner. In the opinion of respondent No.2, the

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income of the husband has to be taken into consideration, while the law requires income of the parents to be taken into consideration. The petitioner has been made to roam from pillar to post seeking validity certificate, which the law requires an order to be passed either issuing the validity certificate or rejecting it within one month from the date of the receipt of the application. The application seeking validity certificate was submitted by the petitioner on 20.09.2022, close to six months have passed by, yet have not issued the validity certificate.

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The issue whether the caste and income of an individual should be taken into consideration or that of the parents or of the spouse need not detain this Court for long or delve deep into the matter. The law in this regard is well settled as the Apex Court in the case of SURINDER SINGH v.

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PUNJAB STATE ELECTRICITY BOARD AND OTHERS –

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(2014) 15 SCC 767, a co-ordinate Bench of this Court in the case of SMT. YOGESHWARI (supra) , and later, a Division Bench of this Court in the case of SMT.DIVYASHREE A.S. VS.

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THE COMMISSIONER IN W.P.NO.11322/2022, DISPOSED

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ON 29.11.2022, considering the issue with regard to issuance

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of validity certificate have enunciated that the caste and income of the parents has to be taken into consideration. In the case

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of SURINDER SINGH (supra) , the Apex Court has held as

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follows:

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“8. The question which still arises is, whether it was open to the High Court, to include the individual's income in determining his eligibility for being declared as backward class, by reading down the policy instructions on the subject? Insofar as the instant aspect of the matter is concerned, there can be no doubt that the issue is determinable with reference to the decision rendered by this Court in Indra Sawhney v. Union of India [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] . But for the determination of the present controversy, we need not travel to the decision in Indra Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] . It will be sufficient to make a reference to the decision rendered by this Court in Ashoka Kumar Thakur v. State of Bihar [Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC 159] , wherein this Court, having examined the Office Memorandum dated 8-9-1993, approved the same by observing as under: (SCC p. 417, para 10)

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“10. We have carefully examined the criteria for identifying the ‘creamy layer’ laid down by the Government of India in the Schedule, quoted above, and we are of the view that the same is in conformity with the law laid down by this Court in Mandal case (Indra Sawhney v. Union of India [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] ). We have no hesitation in approving the rule of exclusion framed by the Government of India in Para 2(c) read with the Schedule of

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the Office Memorandum quoted above. The learned counsel for the petitioners have also vehemently commended that the State Governments should follow the Government of India and lay down similar criteria for identifying the ‘creamy layer’.”

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(emphasis supplied)

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It is apparent from the observations recorded by this Court, as have been extracted hereinabove, that the Office Memorandum dated 8-9-1993 had been examined by this Court, specifically with reference to the decision rendered in Indra Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] . Having done so, this Court expressly approved and confirmed the Schedule to the Office Memorandum dated 8-9-1993.

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11. The above issue came to be examined yet again by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) through its memorandum dated 14-10-2004. In the above memorandum, a large number of queries were clarified. Queries at Serial Nos. (vi) and (vii) of Para 4 are relevant to the present controversy, and are accordingly reproduced hereunder:

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“4. Following questions have been raised from time to time about the application of the above provisions to determine creamy layer.

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(vi) Will a candidate who himself is a directly recruited Class I/Group A officer or a directly recruited Class II/Group B officer who got into Class I/Group A at the age of 40 or earlier be treated to be falling in creamy layer on the basis of his service status?

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(vii) Will a candidate who has gross annual income of Rs 2.5 lakhs or above or possesses wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years be treated to fall in creamy layer?”

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The aforesaid queries came to be answered in Para 8 by observing as under:

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“8. In regard to clauses (vi), (vii) and (viii) of Para 4, it is clarified that the creamy layer status of a candidate is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore, while determining the creamy layer status of a person the status or the income of the candidate himself or of his/her spouse shall not be taken into account.”

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(emphasis supplied)

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In view of the above, there is no room for any further consideration, whether or not the individual's income is to be taken into consideration, while computing the total income relevant to determine whether an individual belongs to the “creamy layer”. The above clarification reveals, that it is only the parents' income, which has to be taken into consideration.”

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(Emphasis supplied)

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A co-ordinate Bench of this Court in the case of SMT.

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YOGESHWARI (supra), it is held as follows:

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“IV. POINTS FOR CONSIDERATION

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16. In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for consideration in these writ petitions are:

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1. Whether the petitioner – Yogeshwari in W.P. No.3390/2018 has made out a case to quash the impugned order dated 13.12.2017 passed by the 2nd respondent – Deputy Commissioner & Chairman, District Caste & Caste Verification Committee and to issue direction to the 2nd respondent to issue validity certificate in her favour subject to the condition that her parents income does not exceed the

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limit prescribed by the respondents, in the facts and circumstances of the present case?

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2. Whether the State Government has made out a case to interfere with the order dated 18.11.2016 passed by the Appellate Authority, in the facts and circumstances of the present case?

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17. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

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V. CONSIDERATION

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18. The substance of the case of the petitioner is that she applied for the post of Civil Judge in response to the notification issued by the 6th respondent under Category III(B) as she belonged to Veerashiava community and she succeeded in the preliminary and Main examinations conducted by the 6th respondent and thereafter she also attended viva voce. Later, she came to know that her application was not forwarded for police verification and medical test, as she has not submitted the caste certificate. Therefore the petitioner has once again applied and obtained the fresh caste and income certificate that she belongs to Category III(B) and income of the family does not exceed Rs.16,000/- issued by the Tahsildar, Chamarajanagar as per Annexure-G dated 3.2.2016. Thereafter the petitioner has applied for the validity certificate before the jurisdictional authority - 2nd respondent. The 2nd respondent rejected the said application on the ground that husband’s income has to be taken into consideration. That is the subject matter of the Appeal before the Appellate Authority - Commissioner for Backward Classes. The Appellate Authority by an order dated 18.11.2016 (Annexure-K) allowed the appeal and set aside the order passed by the 2nd respondent – Deputy Commissioner & Chairman, District Caste & Verification Committee.

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19. The order passed by the Appellate authority has

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reached finality. Thereafter, the petitioner has submitted the detailed representations dated 27.2.2017 and 22.3.2017 to the 2nd respondent to issue validity certificate based on the order dated 18.11.2016 passed by the Appellate Authority. Inspite of the representations, when the 2^nd respondent has not proceeded to consider the representations in pursuance of the order passed by the Appellate Authority, the petitioner was forced to file writ petition before this Court in W.P. No.17079/2017. This Court after hearing the parties, by the order dated 9.11.2017 allowed the said writ petition and directed the respondent – District Caste & Income Verification Committee to consider the representations and take a decision as expeditiously as possible, but not later than two months from the date of receipt of the order. The said order passed by this Court has reached finality.

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20. It is an undisputed fact that the 2nd respondent – Deputy Commissioner & Chairman, District Caste & Income Verification Committee, Chamarajanagar and members of the Committee in its meeting dated 27.2.2017 raised eight questions and sought clarification from the Appellate Authority - Commissioner, Department of Backward Classes, Bangalore as per Annexure-P dated 6.3.2017 and from the Government as per Annexure-S dated 25.3.2017. It is also not in dispute that the Appellate Authority by a letter dated 17.3.2017 (Annexure-G) intimated the 2nd respondent - Deputy Commissioner & Chairman, District Caste & Caste Verification Committee to issue validity certificate to the petitioner – Yogeshwari in accordance with law since the appeal filed before the Appellate Authority was allowed and the order passed by the 2nd respondent was set aside. The order passed by the Appellate Authority – Commissioner, Department of Backward Classes has reached finality. The Commissioner also clarified the same to the Secretary, Backward Classes on 30.5.2017 as per Annexure-R. At clarification No.3, he has specifically stated that the Hon’ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS (AIR 2015 SC 537) has clarified that the creamy layer status of a candidate is determined on the basis of the status of his/her parents and not on the basis of his/her own status or income or on the basis of status or income of his/her spouse. Therefore while determining the creamy layer status of a person, the status or the income of the

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candidate himself or his/her spouse shall not be taken into account. The clarification reveals that it is only the parents income, which has to be taken into consideration. The said clarification issued by the Commissioner, Department of Backward Classes to the Secretary also has reached finality.

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21. It is also relevant to state at this stage that in response to the clarification sought by the 2nd respondent - Deputy Commissioner dated 25.3.2017, the Prl. Secretary, Law Department by a letter dated 6.9.2017 has answered all the queries. The relevant portion of the clarification issued by the Prl. Secretary to Query No.3 is as under:

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eÁw ªÀÄvÀÄÛ DzÁAiÀÄ ¥ÀæªÀiÁt¥ÀvÀæªÀ£ÀÄß ¸ÀPÁðgÀzÀ DzÉÃ±À ¸ÀASÉå: ¸ÀPÀE 225 ©¹J 2000 , ¢£ÁAPÀ: 30.03.2002 gÀ DzÉÃ±ÀzÀ PÀArPÉ ( 3 )gÀ°è ‘PÉ£É¥ÀzÀgÀ ¤ÃwAiÀÄÄ ¥Àj²µÀÖ eÁw, ¥Àj²µÀÖ ¥ÀAUÀqÀUÀ½UÉ ªÀÄvÀÄÛ »AzÀÄ½zÀ ªÀUÀðUÀ¼À ¥ÀæªÀUÀð- 1 PÉÌ C£Àé¬Ä¸ÀÄªÀÅ¢®.è C¨sÀåyðAiÀÄ ¥ÀwAiÀÄÄ ¥ÀæªÀUÀð- 1 PÉÌ ¸ÉÃjgÀÄªÀÅzÀÄ zÁR¯ÁwUÀ½AzÀ PÀAqÀÄ §gÀÄvÀÛzÉ.

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ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÒ £ÁåAiÀiÁ®AiÀÄªÀÅ ¸ÀÄgÉÃAzÀæ ¹AUï «gÀÄzÀÝ ¥ÀAeÁ¨ï ¸ÉÖÃmï J¯ÉQÖçPï ¹n ¨ÉÆÃqïð ¥ÀæPÀgÀtzÀ°è ¹«¯ï C¦Ã®Ä ¸ÀASÉå: 6957/2009 ¢£ÁAPÀ: 25.09.2014 gÀ°è DzÉÃ±À ¨sÁUÀ PÀArPÉ: (11) gÀ°è “In regard clauses (vi), (vii) & (viii) of para 4, it is clarified that the creamy layer status of a candidate is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore, while determining the creamy layer status of person the status or the income of the candidate himself or of his/her souse shall not be taken into account.”

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The above clarification reveals, that it is only the parents income, which has to be taken into consideration.

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22. It is also clarified that while determining the creamy layer status of a person, the status or income of the candidate himself or his/her spouse shall not be taken into account and the clarification reveals that it is only the parents income which has to be taken into consideration.

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Inspite of the clarification issued by the Appellate Authority as well as the Prl. Secretary, Law Department, unfortunately the 2nd respondent – Deputy Commissioner & District Caste & Income Verification Committee proceeded to pass the impugned order dated 13.12.2017 mainly on the ground that the income of the husband of the petitioner has to be taken into consideration and the certificate sought cannot be granted. The same is against the very Government Order issued by the State Government dated 30.3.2002 made in G.O. No. ¸ÀPÀE 225 ©¹J 2000 and contrary to the dictum of the Hon’ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS reported in AIR 2015 SC 537, wherein at paragraphs - 9, 10 and 11 it is held as under:

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“9. Based on the aforesaid declaration of law, we are of the view that it was not open to the High Court to evaluate the office memorandum dated 8.9.1993 from any other parameters. It also needs to be noticed, that the issue which came up for determination in Ashok Kumar Thakur's case (AIR 1996 SC 75) came to be re-examined before a Constitution Bench of this Court in Ashok Kumar Thakur vs. Union of India (2008) 6 SCC 1, wherein on the subject of identification of the “creamy layer”, the Constitution Bench observed as under:

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“1-B. IDENTIFICATION OF CREAMY LAYER

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415. Income as the criterion for creamy layer exclusion is insufficient and runs afoul of Sawhney (I). (See p.724 at para 792). Identification of the creamy layer has been and should be left to the Government, subject to judicial direction. For a valid method of creamy layer exclusion, the Government may use its post-Sawhney (I) criteria as a template. (See OM of 8.9.1993, Para 2(c)/Column 3), approved by this Court in Ashoka Kumar Thakur vs. State of Bihar (1995) 5 SCC 403, para 10. This schedule is a comprehensive attempt to exclude the creamy layer in which income, government posts,

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occupation and landholdings are taken into account.”

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Here again, this Court expressly approved the office memorandum dated 8.9.1993. In view of the decisions rendered by this Court in both Ashok Kumar Thakur's cases (supra), we are of the view that the High Court clearly erred in reading down the office memorandum dated 8.9.1993 and to include therein the income of the individual concern while determining whether or not he fall within the “creamy layer”.

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10. Despite the declaration of law in the judgments, referred to hereinabove, it is also necessary to take into consideration the clarification issued by the Government of India, Ministry of Personnel, P.G. and Pensions (Department of Personnel and Training) dated 21.11.2002. The aforesaid clarification was with reference to the office memorandum dated 8.9.1993. Relevant extract of the clarificatory letter dated 21.11.2002 is being reproduced below:

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“I am directed to refer to your letter No.2/25/2001 RC-1/670 dated 1710- 2002 on the above noted subject and say that determination of creamy layer for an OBC candidate is done with reference to the income of parents as per instructions contained in DOPT's O.M. No.36012/22/93-Estt(res) dated 8.9.93.”

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Based on the aforesaid conclusion, there is really no room for any doubt, that the exposition with reference to category VI in the office memorandum dated 8.9.1993 related only to the income of the parents of the individual concerned. And that, the income of the individual concerned was not to be taken into consideration.

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11. The above issue came to be examined yet again by the Government of India, Ministry of Personnel, Public

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Grievances & Pensions (Department of Personnel and Training) through its memorandum dated 14.10.2004. In the above memorandum, a large number of queries were clarified. Queries at serial nos.(vi) and (vii) of paragraph 4 are relevant to the present controversy, and are accordingly reproduced hereunder:

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“4. Following questions have been raised from time to time about the application of the above provisions to determine creamy layer.

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(vi) Will a candidate who himself is a directly recruited Class I/Group A Officer or a directly recruited Class II/Group B officer who got into Class I/Group A at the age of 40 or earlier be treated to be falling in creamy layer on the basis of his service status?

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(vii) will a candidate who has gross annual income of Rs.2.5 lakh or above or possesses wealth above the Exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years be treated to fall in creamy layer?”

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The aforesaid queries came to be answered in paragraph 8 by observing as under:

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“8. In regard to clauses (vi), (vii) and (viii) of para 4, it is clarified that the creamy layer status of a candidate is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore, while determining the creamy layer status of a person the status or the income of the candidate himself or of his/her spouse shall not be taken into account.”

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In view of the above, there is no room for any further consideration, whether or not the individual's income is to be taken into consideration, while computing the total income

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relevant to determine whether an individual belongs to the “creamy layer”. The above clarification reveals, that it is only the parents income, which has to be taken into consideration.

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23. Writ Petition No.24115/2018 is filed by the State Government against the order passed by the Appellate Authority dated 18.11.2016 mainly on the ground that the order passed by the Appellate Authority cannot be sustained as it was not a speaking order. Admittedly the 2nd respondent – Deputy Commissioner & Chairman, District Caste and Income Verification Committee passed the order on 13.12.2017 rejecting the grant of Validity certificate, which is the subject matter of W.P. No.3390/2018 filed by the petitioner – Yogeshwari. Admittedly, the Deputy Commissioner & Chairman, District Caste and Income Verification Committee raised certain queries and sought clarification from the Appellate authority and also the State Government and the State Government has clarified the queries and therefore now the State Government ought not to have filed the writ petition. Instead of filing the writ petition against the order passed by the appellate authority, the State Government ought to have directed the Deputy Commissioner & Chairman, Distinct Caste & Income Verification Committee to issue the validity certificate in accordance with law. The same has not been done. The order was passed by the appellate authority on 18.11.2016 and the writ petition No.24115/2018 was filed by the State Government on 1.6.2018 challenging the said order, after the delay of more than 1 ½ years stating that the appellate authority has not passed speaking order and no reasons are assigned.

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24. It is not the case of the State Government that the income of the husband has to be taken into consideration while considering the issue of validity certificate to the petitioner - Yogeshwari. If that is so, the State Government ought not to have filed the present writ petition and drove the petitioner - Yogeshwari unnecessarily before this Court. The State Government should act as custodian of the citizens of the State and the State Government is in position of the mother and treat all the children of the State equally and should not discriminate. Unfortunately, the State Government filed the writ petition No.24115/2018 without there being any

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ground to challenge the order passed by the appellate authority. The order of the appellate authority has been culminated into the impugned order passed by the 2nd respondent – District Caste Verification Committee after obtaining clarification from the very appellate authority and the State Government. In all fairness, the State Government ought not to have filed writ petition No.24115/2018. The writ petition filed by the State Government is devoid of merits and liable to be rejected.

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VI. CONCLUSION

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25. For the reasons stated above, the 1st point raised in these writ petitions has to be answered in the affirmative holding that the petitioner – Yogeshwari in W.P. No.3390/2018 has made out case to quash the impugned order dated 13.12.2017 (Annexure-W) passed by the respondent – Deputy Commissioner & Chairman, District Caste and Verification Committee and to issue direction to the said respondent to issue validity certificate in her favour subject to the condition that her parents income does not exceed the limit prescribed in the Government Order dated 30.03.2002.

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26. In view of the above, the 2nd point raised in the present writ petitions has to be held in the negative holding that the State Government has not made out any case to interfere with the order dated 18.11.2016 passed by the appellate authority, in the facts and circumstances of the case.

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27. For the reasons stated above, the writ petition filed by the petitioner – Yogeshwari in W.P. No.3390/2018 is allowed. The impugned order dated 13.12.2017 passed by the 2nd respondent – Deputy Commissioner & Chairman, District Caste and Income Verification Committee as per Annexure-W is hereby quashed. The 2nd respondent is directed to issue validity certificate in favour of the petitioner – Yogeshwari in pursuance of the Government Order dated 30.3.2002 made in No. G.O. No.SaKae 225 BCA 2000 and in view of the dictum of the Hon’ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTIRICITY BOARD (AIR 2015 SC

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537) stated supra, within one month from the date of receipt of copy of this order.”

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(Emphasis supplied)

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The co-ordinate Bench was following the judgment of the

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Apex Court in the case of SURINDER SINGH (supra) . The coordinate Bench set at naught similar action of determination of the caste and income of the applicant on the basis of the caste and income of the husband and directed that the caste and income of the parents is to be taken into consideration. It is further germane to notice a later judgment of the Division Bench in the case of SMT.DIVYASHREE (supra) , wherein, the Division Bench has held as follows:

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“8. The learned Single Judge of this Court in the case of The State of Karnataka Vs. Smt. Yogeshwari in Writ Petition No.24115/2018 c/w Writ Petition No.3390/2018(GM-CC) has considered the similar aspect wherein a candidate applied for the post of Judicial Officer showing her father's income and caste certificate. Since her husband was also Judicial Officer she was denied the appointment as income exceeds to claim reservations. The learned Single Judge of this Court relying on the decision in the case of Surinder Singh Vs. Punjab State Electricity Board, Patiala and others reported in AIR 2015 SC 537 has upheld the appointment of Smt. Yogeshwari. The relevant paragraphs are as under:

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“20. It is an undisputed fact that the 2nd respondent - Deputy Commissioner & Chairman,

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District Caste & Income Verification Committee, Chamarajanagar and members of the Committee in its meeting dated 27.2.2017 raised eight questions and sought clarification from the Appellate Authority - Commissioner, Department of Backward Classes, Bangalore as per Annexure-P dated 6.3.2017 and from the Government as per Annexure-S dated 25.3.2017. It is also not in dispute that the Appellate Authority by a letter dated 17.3.2017 (Annexure-G) intimated the 2nd respondent - Deputy Commissioner & Chairman, District Caste & Caste Verification Committee to issue validity certificate to the petitioner - Yogeshwari in accordance with law since the appeal filed before the Appellate Authority was allowed and the order passed by the 2nd respondent was set aside. The order passed by the Appellate Authority

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- Commissioner, Department of Backward Classes has reached finality. The Commissioner also clarified the same to the Secretary, Backward Classes on 30.5.2017 as per Annexure-R. At clarification No.3, he has specifically stated that the Hon'ble Supreme Court in the case of SURINDER SINGH vs. PUNJAB STATE ELECTRICITY BOARD, PATIALA AND OTHERS (AIR 2015 SC 537) has clarified that the creamy layer status of a candidate is determined on the basis of the status of his/her parents and not on the basis of his/her own status or income or on the basis of status or income of his/her spouse. Therefore while determining the creamy layer status of a person, the status or the income of the candidate himself or his/her spouse shall not be taken into account. The clarification reveals that it is only the parents income, which has to be taken into consideration. The said clarification issued by the Commissioner, Department of Backward Classes to the Secretary also has reached finality.”

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9. In the case mentioned supra, a clarification was sought by the Deputy Commissioner and the clarification clearly stated that the creamy layer

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status of a candidate is determined on the basis of the status of his/her parents and not on the basis of his/her own status or income or on the basis of status or income of his/her spouse. Therefore while determining the creamy layer status of a person, the status or the income of the candidate himself or his/her spouse shall not be taken into account. The clarification reveals that it is only the parents income, which has to be taken into consideration.

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10. Therefore, in view of this decision, the order passed by the tribunal in this regard does not holds good. Further learned counsel also relied on the decision of this Court in case of Smt. Suma C.C. Vs. Karnataka Examinations Authority and others in W.P.No.44784/2019 (S-KSAT) at paragraph no.12 and 13 which is held as under:

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"12. This point need no longer detain us any further. The coordinate bench of this Court in the case of MS. RAMJANBEE v. STATE OF KARNATAKA AND OTHERS passed in W.P.No.56370/2018(S-KAT) dated 30.06.2021, considered the said aspect and in the decision of the Hon'ble Supreme Court in the case of RAM KUMAR GIJROYA v. DELHI SUBORDINATE SERVICES SELECTION BOARD AND ANOTHER reported in (2016) 4 SCC 754 is also relied. At para 9, the co-ordinate bench held as under:-

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"9. In a similar case relating to selection to the post of Assistant Professor in History, one Renuka had filed Application No.11680/2016 challenging non-inclusion of her name in the selection list dated 6.12.2016 on the ground that the Income and Caste Certificate produced by her at the time of making application was not valid; that since the subsequent certificate was obtained after the last date prescribed for receipt of applications, in view the law laid down by the Hon'ble Supreme Court in BEDANGA TALUKDAR v. SAIFUDAULLAH KHAN, reported in (2010) 12 SCC 85 that strict adherence to stipulated selection procedure is a necessity, certificate produced subsequent to the last date prescribed for receipt of applications cannot be accepted. But this Tribunal following the decision of the Hon'ble Supreme Court in RAM

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KUMAR GIJROYA v. DELHI SUBORDINATE SERVICES SELECTION BOARD AND ANOTHER reported in (2016) 4 SCC 754, held that nonsubmission of a reserved (OBC) category certificate of the selected candidate within the cut off date mentioned in the advertisement cannot render a candidate ineligible for selection, as it would amount to denial of equality of opportunity contemplated under Articles 14, 15, 16 and 39-A of the Constitution of India and allowed the application and the KEA was directed to include the name of the Applicant in the said selection list and to appoint the applicant pursuant to the said selection list. The KEA challenged the said 'order before the Hon'ble High Court of Karnataka in Writ Petition No.49066/2017 (EXECUTIVE OFFICER, KARNATAKA EXAMINATIONS AUTHORITY v. STATE OF KARNATAKA AND ANOTHER) and connected cases. The Hon'ble High Court by order dated 26.03.2018 has upheld the view taken by this Tribunal with regard to claim for reservation by the Applicant in the said Application, but so far as the direction to appoint the Applicant therein is concerned, the Hon'ble High Court has modified the said direction to read that the Government shall issue appointment order to the Applicant after issuance of Validity Certificate by the prescribed competent authority. Hence, a direction has to be issued to the KEA to consider the caste and income certificate produced by the Applicants in relation to income of their husband.’

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13. Therefore, it is evident that non-submission of a reserved (OBC) category certificate of the selected candidate within the cut-off date cannot render a candidate ineligible for selection, as it would amount to denial of equality of opportunity contemplated under Article 14, 15, 16 and 39 of the Constitution of India.

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11. Admittedly, in this case, the order of the Tribunal holding that applicant has produced caste and income certificate of her father instead of her

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husband is bad in law does not hold good. In the endorsement for cancellation also it is stated that a married woman should furnish the caste and income of her husband, as she was selected under IIA women reservation and as she is married, her father's income and caste certificate cannot be considered. Therefore, respondent has come to the conclusion that she has given wrong information and her appointment was cancelled. But such contention does not hold good in the eyes of law.”

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(Emphasis supplied)

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Therefore, in the considered view of this Court, the issue in the lis stands covered by the judgment of the Apex Court in the case of SURINDER SINGH (supra) and the judgment of the Division Bench in the case of SMT. DIVYASHREE (supra) and that of the co-ordinate Bench in Smt. YOGESHWARI (supra) .

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The petitioner did bring it to the notice of the competent authorities that the law in this regard is settled by the judgment rendered by the Apex Court and that of this Court and even then, the validity certificate is not issued. The 3^rd respondent/Tahsildar also communicates to the 2^nd respondent for issuance of a validity certificate. Therefore, it is a clear case of culpable negligence on the part of respondent No.2 in not issuing validity certificate in favour of the petitioner.

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It is not in dispute that the other candidate/s selected along with the petitioner has / have joined the respective posts as their validity certificate/s were immediately issued. Learned counsel for the petitioner submits that the other candidate/s has / have joined the posts on 17.10.2022 and the petitioner is yet to join despite passage of four months after others have joined. The solitary reason for that is the callous act of 2^nd respondent who refuses to issue a validity certificate. Therefore, the petitioner has lost salary of three months due to the act of the 2^nd respondent in making the petitioner roam all around despite the law being very clear.

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In view of the aforesaid circumstances, the petitioner

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would become entitled to be compensated for loss of salary for a period of three months on account of the callousness of the 2^nd respondent, in the light of the fact that the candidate who participated along with the petitioner has joined service on 17.10.2022 and has drawn salary for three months now. Therefore, the State will have to pay compensation to the petitioner and recover the same from the officer who had displayed such lackadaisical attitude in issuing or rejecting the

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validity certificate within one month as stipulated under the Act. The recovery after identification of the officer shall be done strictly in consonance with law and after affording all reasonable opportunity to the said officer. There could not have been any obfuscation with regard to the income of the parents to be taken into consideration for issuance of validity certificate to the petitioner, despite the law being clear, the certificate is not issued in favour of the petitioner. It is therefore, the petitioner becomes entitled for the aforesaid compensation.

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15. For the aforesaid reasons, the following:

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(i) Writ Petition is allowed.

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(ii) A direction is issued to the 2^nd respondent to forthwith issue a validity certificate.

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(iii) The petitioner shall be paid compensation of three months salary within four weeks from the date of receipt of the copy of this order.

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(iv) The salary so paid shall be recovered from the hands of the officer so identified - 2^nd respondent strictly, in consonance with law.

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(v) The report of the action taken shall be filed before the Registry of this Court within six weeks from the date of receipt of a copy of this order.

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(vi) The Registry shall communicate this order to the Chief Secretary for appropriate action, forthwith.

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Sd/JUDGE

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NVJ List No.: 1 Sl No.: 25

Dr Latha K v. the Deputy Commissioner and Chairman, District Caste and Income Verification Committee

Case brief

What is this about?

What did the court decide?

Dr Latha K v. the Deputy Commissioner and Chairman, District Caste and Income Verification Committee

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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