Topic: Step mother not entitled to maintainance u/s.125 crpc

Ashoka Kumar Thakur vs State Of Bihar And Ors
Equivalent citations: 1996 AIR 75, 1995 SCC (5) 403 - Bench: K Singh - CITATION: 1996 AIR 75 1995 SCC (5) 403 JT 1995 (6) 390 1995 SCALE (5)115 - 4 September, 1995

J U D G M E N T

Kuldip Singh. J.

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. A Nine-Judge Bench of this Court     in "Mandal case" - Indra Sawhney vs. Union of India [1992] Supp. (3) SCC 217] - 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 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) 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 benefitted.     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 practiced on them by the higher class is in turn practiced 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 sections 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 sections of the class. The means-test is, therefore, imperative to skim-off the affluent section of the backward class. 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. 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 employee's 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 sections reach those levels or at least, near those levels."

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 acheived 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." <SLE>

B.P. Jeevan Reddy, J.     speaking for     the Court enaunciated 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 iven 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 rupeees, 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 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 if    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 social advancement. 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 IAS or IPS 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 area 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 area not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of     that backward class may be deprived of that benefit.    It is then argued for the respondents that 'one swallow doesn't make the     summer', and that merely because a    few members of     a caste or class become socially advanced, the class/caste as such does not cease to be backward.    It is pointed out that clause (4) of 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'".

<SLE>

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 how, 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'.

Pursuant to the directions by this Court in `Mandal case' Government of India, Ministry of Personnel, Public Grievances and     Pensions (Department     of Personnel     and Training) issued office memorandum dated September 8,1993 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

The undersigned    is directed to refer to    this Department's O.M. No.     36012/31/90-Estt. (SCT), dated the 13th August,    1990 and 25th     September, 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 Indira sawhney and others Vs. Union of India and others case (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 Committee's recommendations    this Department's Office Memorandum No.36012/31/90-Estt. (SCT), dated 13.8.90 referred to in para (1) above is hereby modified to provide as follows:

(a) 27% (twenty seven percent) 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 occupation, callings. A list of such occupations, callings will be issued separately by the Ministry of Welfare. (d) ..........

(e) ..........

3.     ..........

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 & Auditor

General of India;

(e) persons holding Constitu- tional positions of like

nature.

II. SERVICE CATEGORY     Son(s) and daughter(s) of A. Group A/Class I officers of the All india central

and State Services

(Direct Recruits).     (a) parents, both of whom area Class I officers;

(b) parents, either of whom is a Class I officers;

(c) parents, both of whom area Class I officers, but one

of them dies or suffers

permanent incapacitation.

(d) parents, either of whom is a Class I officer and

such parent dies or

suffers permanent incap-

acitation and before such

death or such incapaci-

tation has had the

benefit of employment in

any International Organ-

isation like UN, IMF,

World Bank, etc. for a

period of not less than 5

years.

(e) parents, both of whom area class I officers die or

suffer permanent incapa-

citation and before such

death or such incapac-

itation 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) Sons and daughters of

parents either of whom or

bot of whom 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 officers of the Central & State Services (Direct Recruitment)

Son(s) and daughter(s) of

(a) parents both of whom are Class II officers.

(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 Inter-

national 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 perm-

anent 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 excl-

usion shall not apply in

the following cases:

Sons and daughters of

(a) Parents both of whom are Class II officers and

both or them dies or

suffers permanent

incapacitation.

(b) Parents, both of whom area Class II officers and

both of them die or

suffer permanent incapac-

itation, even though

either of them has had

the benefit of

employement in any

International Organi-

sation like UN, Imf,

World Bank, etc. for a

period of not less than 5

years before their death

or permanent incapac-

itation

C. Employees in Public sector Undertakings etc.

The criteria enumerated in A & B above in this Category

will apply mutatis mutandi 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

employement, 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 INCLUDING PARAMILITARY FORCES (Persons holding civil posts area not included) Sons(s) and daughter(s) of

parents either or both of whom is or are in the rank of

Colonel and above in the Army and to equivalent posts in the Navy and the Air Force and the Para Military Forces.

Provided that :-

(i) if the wife of an Armed

Forces Officer is herself

in the Armed Forces (i.e.

the category under consi-

deration) 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 offic- er in the Armed Forces is

in civil employement,

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 enumerated

therein will apply to her

independently

IV. PROFESSIONAL CLASS AND THOSE ENGAGED IN TRADE AND INDUSTRY (I) Persons engaged in profession as a doctor, lawyer, chartered accountant, Income-Tax consultant, financial or management

consultant, dental surgeon,

engineer, architect, computer specialist, film artists and other film professional, author, playwright, sports person, sports professional, media professional or any other vocations of like status.

Criteria specified against

Category VI will apply:-

(II) Persons engaged in trade, business and industry.

Criteria specified against

Category VI will apply:

Explanation:

(i) Where the husband is in

some profession and the

wife is in a Class II or

lower grade employment,

the income/wealth test

will apply only on the

basis of the husband's

income

(ii) If the wife is in any

profession and the

husband is in employment

in a Class II or lower

rank post, then the

income/wealth criterion

will apply only on the

basis of the wife's

income and the husband's

income will not be

clubbed with it.

V. PROPERTY OWNERS

A. Agricultural holdings Son(s) and daughter(s) of persons belonging to a family (father, mother and minor

children) which owns

(a) only irrigated land which is equal to or more than 85% of the statutory area, or

(b) both irrigated and

unirrigated land, as follows: (i) The rule of exclusion will apply where the pre-condition 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 portions). If

this pre-condition 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 unirrigated 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 dis-entitlement 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, apply

plantations etc.

Deemed as agricultural holding and hence criteria at A above under this Category will

apply.

C. Vacant land and/or

buildings in urban areas

or urban agglomorations

Criteria specified in Category VI below will apply.

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 the exemption limit

as prescribed in the

Wealth Tax Act for a

period of three consecu-

tive 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 incapac- itation" occur in this schedu- le, it shall mean incapacitation which results in putting an

officer out of service."

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'. 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 the Office Memorandum quoted above.     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'. 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. The Governor of Bihar promulgated Ordinance No.5 of 1995 on     January 27, 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."

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 mensum, 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 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 atleast 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 land-holder:-

(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 1 to 6 of this Schedule:-

(a) Whose main source of income is other than animal husbandary, 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 1 to 7 of this Schedule performs inter- castes marriage with a backward class     person other than     the categories under serial 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."

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 of    Scheduled Castes and Scheduled     tribes     and other backward classes Act, 1994. The said categories are as under:-

"Categories of Persons excluded     Criteria for exclusion

1.     sons and daughters of

(a) IAS, IFS,IPS Indian

Forest Service other

central service (direct

or promotee)

(i) Income from salary of

such member of service is

10,000/- or above per

mensum.

(b) U.P. Civil Service, U.P. Police Service State

Service. (direct recruit).

(ii) Spouse is at least

graduate.

(iii) He or his spouse

owns a 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 Para Military forces not

below rank of colonel or equivalent.

2.     SONS AND DAUGHTERS OF -- persons engaged in profession as a doctor, surgeon, engineers, lawyer, architect, Chartered Accountant, media & information professional, management and other consultant film artist & other film professional, running educational institution or

coaching institute or engaged in the business as a share broker or in entertainment business i) his average income from all sources should not be less

than Rs.10 lakhs per year for 3 consecutive financial years ii) Spouse at least a

graduate.

iii) His family property

(immovable) should be worth

Rs.20 lakh.

3.     Sons and daughters of Businessman. i) Provided whose average

income for 3 consecutive

financial years is not less

than Rs.10 lakh per annum.

ii) Spouse at least a

graduate.

iii) immovable family property worth at least 20 lakhs.

4.     Sons and Daughters of Industrialist. i) whose level of investment in running units is over Rs.10 crore and such units are

engaged in production for at least 5 years

ii) spouse at least a

graduate.

5.     Sons and Daughters of

a person whose holdings

is within limit fixed

under the U.P. Imposition

of Ceiling on Land Holdings

Act 1960.

i) has an income of Rs.10

lakhs in a year from sources other than agriculture.

ii) His spouse at least a

graduate.

6.     Sons and Daughters of

any others person not

mentioned in afore ment-

ioned categories.

i) Whose income from all

sources 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." This Court has categorically held in `Mandal case' that a person, belonging to a backward class, who becomes member of IAS,     IPS 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 mensum, the wife or     husband to be graduate and one of them owning a house in an urban area. a 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 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'.

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.

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' extent 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.6929     (1993-94), a person who is a member of the IAS 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 layer' on     the face of it is arbitrary and has to be rejected. We, therefore, hold that the above quoted criteria, for identification of `creamy-layer', laid down by the States of Bihar and Uttar Pradesh is violative     of Article 16(4), wholly arbitrary - violative of Article 14 - and against the law laid-down by this Court in `Mandal case'. 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 Caste and Scheduled tribes and Other Backward Classes Act, 1994. 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 September 8. 1993. It will be open to the two States to lay down fresh criteria for the subsequent years in accordance with law. No costs. 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.