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Always applied two different income tests for OBC civil services candidates: DoPT
Spotlight on the government’s method of determining the non-creamy layer status of OBC candidates comes in the wake of the row over trainee IAS officer Puja Khedkar
A series of contradictory positions taken over the last few years has obscured how the Union government determines which candidates from other backward class (OBC) communities can be allowed to claim reservations for jobs in India’s civil services.
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When the OBC quota was introduced in 1993, a guiding charter was created to exclude OBC candidates whose families had accumulated certain social and economic privileges over the years, known as the creamy layer. This would then allow reservation benefits only for those declared as ‘non-creamy layer’ or NCL candidates, based on several criteria, including a crucial income or wealth test. Now, it has emerged that the Department of Personnel and Training has been applying two different income tests to different categories of OBC candidates.
Puja Khedkar case
The tangle of regulations governing the OBC quota has come into the spotlight with the current row over Puja Khedkar, a trainee IAS officer who passed the civil services examination in 2022, and whose OBC-NCL certificate has come under scrutiny. Given that she is a medical doctor and her father is a retired civil servant who contested the recent Lok Sabha election, filing a candidate affidavit which valued his assets at over ₹40 crore, questions have arisen about how she could be given ‘non-creamy layer’ status. On Friday, the UPSC filed an FIR against her and has moved to cancel her candidature.
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In the wake of this case, a number of OBC candidates have taken to social media to highlight how they were denied reservation benefits because of irregularities in the application of the income test.
Dual standards
The DoPT’s 1993 charter had declared some OBC families ineligible on the basis of their occupations. Thus, children of people in constitutional posts, senior Central and State government employees, members of the armed forces, and property owners supposedly could not avail of the OBC quota for the civil services. However, exceptions were carved out of these exclusions: for instance, children of MPs and MLAs; government officials who have been promoted, not hired, into senior positions; and owners of unirrigated agricultural land, among others are all now eligible for OBC quotas, subject to a parental annual income limit of ₹8 lakh.
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However, the DoPT has discrimimated in terms of how this income test is applied. Only the exceptional cases mentioned above are allowed to exclude their parents’ salaries and agricultural income from the prescribed limit. For other OBC candidates whose parents are salaried professionals, business owners, farmers, or simply not part of the initial exclusions, the ₹8 lakh limit includes parental salaries. The DoPT explained these dual standards 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 Ministry told Parliament in December 2019 that there is only one income test for OBC candidates, which excludes income from salaries and agriculture. In December 2021, the Union government also told the Supreme Court that the OBC income test excluded such income for all candidates, while arguing that the income test for the economically weaker section (EWS) quota was more stringent.
Excluding salaried income
The guiding charter for determining the NCL-status of OBC candidates is an Office Memorandum (’93 OM) issued by the DoPT in 1993, which is interpreted with the help of a clarification letter issued by the Department subsequently in 2004.
In the affidavit filed in the Supreme Court in October 2020, the DoPT first explained that the income test is prescribed under Category VI of the ’93 OM. It then argued that this category actually sets down two different tests for different categories of OBC candidates – the first for children of all salaried professionals (doctors, lawyers, engineers), people in trade and industry, owners of non-agricultural property, and employees of State and Central PSUs; and the second for the exceptions from the excluded set of people in constitutional posts and government services as mentioned above.
The DoPT explained that the rule to exclude salaries and agricultural income from the annual family income has only ever applied to the second group, which is a small section of OBC candidates.
DoPT affidavit
This affidavit was filed in a case where OBC candidates selected in civil services examinations over the last decade or so argued that the DoPT incorrectly determined their creamy layer status by including the salaries of their parents, who worked in Central and State PSU employees, and fell under the “first test” as determined by the DoPT.
In this affidavit, the DoPT has said, “The first test i.e. VI(a), applies to Categories IV, V(B), and V(C), and also to those persons, where in their respective criteria, reference to Category VI has been made… Category VI(b) is applicable to all those persons, – falling under the exceptions laid out in Categories I, II, III, and V(A), but have an income from ‘other sources’ (apart from salary income and agricultural income).”
Then, attempting to dissect Explanation (i) to Category VI, which provides for excluding income from salaries and agricultural income while applying the income test, the Department added that based on the clarification letter of 2004, “…It clearly emerges, that Explanation (i) will only apply to (b) [of Category VI]…”
Confusion remains
But even in the detailed explanation laid out by the DoPT in this affidavit, confusion appears to remain over which of the two income tests allows for parents’ salaries to be excluded, and for which OBC candidates.
Further down in the same affidavit, in Para 17, the DoPT implied that under the first test too in some cases, income from salaries and agriculture can be excluded. It said, “Income test under Category VI(a), also applies to Government employees or to the employees of those organizations, where equivalence has been established, if their income from other sources i.e other than income from salary and the income from agriculture exceeds the prescribed limit.”
Proposal to raise income limit
The Supreme Court is yet to decide whether the DoPT’s explanation on excluding parents’ salaries and agricultural income applies to the income test for all categories of OBCs. The next hearing in the matter has been scheduled for August 22.
The issue of such a twin income test was first flagged by the National Commission for Backward Classes in a 2015 report. Following this, a Parliamentary Committee on the Welfare of OBCs had also flagged it, which had led to a draft Cabinet note to completely alter the criteria for the income test under the creamy layer rules.
This draft Cabinet note had proposed that the income limit be raised from ₹8 lakh and also that salaries be included for all categories of OBC candidates. However, this note was never approved by the Cabinet.
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