A series of controversial positions taken over the last few years has obscured how the Union government determines which candidates from other backward class communities (OBC) can be allowed to claim reservation for jobs in the Indian civil service.
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When the OBC quota was introduced in 1993, a charter was drawn up to exclude OBC candidates whose families had accumulated certain social and economic privileges over the years, known as the creamy layer. This will then allow reservation benefits only for those declared as ‘non-cream layer’ or NCL candidates, based on several criteria, including important income or wealth test. Now, it has come to light that the Department of Personnel and Training has implemented two different income tests for different categories of OBC candidates.
The case of Puja Khedkar
The proliferation of regulations governing the OBC quota has come under the spotlight as the current dispute over Puja Khedkar, an IAS officer trainee who will pass the civil services exam in 2022, and the OBC-NCL certificate has come under scrutiny. Since he is a medical doctor and the father of a retired civil servant who contested the recent Lok Sabha elections, filed a candidate’s affidavit with assets worth more than ₹40 crore, there is a question as to how he can be given ‘non-cream’. layer status. On Friday, the UPSC filed an FIR against him and has moved to cancel his candidature.
In this case, some OBC candidates have taken to social media to highlight how they were denied reservation benefits due to irregularities in the application of the income test.
Dual standard
The 1993 DoPT charter states that some OBC families are ineligible because of their occupation. So, children in constitutional posts, senior Central and State government employees, members of the armed forces, and property owners should not be eligible for OBC quota for civil services. However, exceptions were carved out of this exemption: for example, the children of MPs and MLAs; government officials who have been promoted, not hired, to senior positions; and owners of non-irrigated agricultural land, among others, are all now eligible for the OBC quota, subject to a parental annual income limit of ₹8 lakh.
However, the DoPT has made a distinction on how this income test is applied. Only the exceptional cases mentioned above are allowed to exclude parents’ salary and agricultural income from the prescribed limits. For other OBC candidates whose parents are salaried professionals, business owners, farmers, or simply not part of the initial exemption, the ₹8 lakh limit includes the parents’ salary. The DoPT explained the dual standard in the application of the OBC income test in an October 2020 affidavit filed in the Supreme Court.
This seems to contradict what the Social Justice Minister told Parliament in December 2019 that there is only one income test for OBC candidates, which excludes income from salary and agriculture. In December 2021, the Union government also told the Supreme Court that the OBC income test excludes such income for all candidates, while arguing that the income test for the economically weaker section (EWS) quota is stricter.
Excludes salary income
The guiding charter for determining the NCL status of OBC candidates is the Office Memorandum (’93 OM) issued by the DoPT in 1993, which was interpreted with the help of a clarification letter issued by the Department in 2004.
In an affidavit filed in the Supreme Court in October 2020, the DoPT first explained that the income test was provided under Category VI of the ’93 OM. It then argued that this category actually specifies two different tests for different categories of OBC candidates – the first for children of all salaried professionals (doctors, lawyers, engineers), persons in trade and industry, property owners non- agriculture, and employees. State and Central PSUs; and secondly for the exclusion of persons excluded from constitutional posts and government services as mentioned above.
The DoPT explained that the rule to exclude salary and agricultural income from the annual family income applies only to the second group, which is a small section of OBC candidates.
Affidavit of DoPT
This affidavit was submitted in a case where OBC candidates were selected in the civil service examination over the last decade or so and said that the DoPT wrongly determined the status of the creamy layer by including the salary of their parents, who worked in Central and State PSU employees, and fell. according to the “first test” specified by DoPT.
In this affidavit, the DoPT has said, “The first test is VI(a), applicable to Category IV, V(B), and V(C), and also to those, where the respective criteria, reference to Category VI has been created… Category VI(b) applies to all such persons, – included in the exemptions provided in Categories I, II, III, and V(A), but having income from ‘other sources’ (other than salary income and agricultural income).
Then, trying to distinguish Explanation (i) to Category VI, which provides for the exclusion of income from salary and agricultural income when applying the income test, the Department added that based on the clarification letter of 2004, “… i) only applies to (b) (Category VI) )…”
Confusion persists
But even in the detailed explanation laid out by DoPT in this affidavit, confusion seems to remain in which of the two income tests allow for the salary of parents who are excluded, and which are OBC candidates.
Further down in the same affidavit, in Paragraph 17, the DoPT stated that in the first test also in some cases, income from salary and agriculture may be excluded. He said, “The income test under Category VI(a), also applies to Government employees or employees of the organization, where equality has been established, if the income from other sources is except income from salary and income from agriculture exceeds the prescribed limit .”
Proposal to raise the income limit
The Supreme Court has yet to decide whether the DoPT’s explanation of excluding parental salary and agricultural income is applicable to the income test for all OBC categories. The next hearing in the matter has been scheduled for August 22.
The issue of twin income tests was first flagged by the National Commission for Backward Classes in its 2015 report. After this, the Parliamentary Committee on Welfare of OBCs also flagged it, which led to a Cabinet note to revise the criteria for the income test under the cream layer rule.
This draft Cabinet note proposes that the income limit be raised from ₹8 lakh and also salary inclusive for all categories of OBC candidates. However, this note was never approved by the Cabinet.
