Bihar reiterates parents’ salaries, agricultural income cannot be counted for OBC creamy layer

The Bihar government has reiterated that officials in the State cannot include parents’ salaries and agricultural earnings when calculating income to determine the creamy layer status of Other Backward Classes (OBC) candidates.

In an order issued by the General Administration Department (GAD), the State government said that instructions issued by the Centre and the State on the income test stipulate this. This comes in the backdrop of the Union government approaching the Supreme Court last week to seek clarity on how to apply the income test, especially in light of the top court’s March 11 Rohith Nathan judgment.

Interestingly, in doing so, the Union government has also argued that in some cases, there may be a need to include salaries of parents to distinguish creamy layer candidates among OBC candidates. In a September 1 order addressed to all District Magistrates, the Bihar government reiterated earlier orders on the creamy layer exclusion procedure for OBCs, specifically those concerning the application of the income test.

However, the order does not explicitly mention the Rohith Nathan judgment or the issues that this judgment dealt with regarding the application of the income test. The GAD referred to the 1993 principal guidelines of the Department of Personnel and Training (DoPT) governing the creamy layer exclusion process, and to orders issued by the State government since then.

It acknowledged reports that the creamy layer exclusion process, as set out in these guidelines, was not being followed completely and called for strict adherence to them. The Rohith Nathan judgment in March this year recognised that the DoPT was applying the income test of the creamy layer exclusion process differently for different categories of OBC candidates.

The court had described this as “hostile discrimination”, where income from parents’ salaries alone had been used to exclude some OBC candidates from reservation. The court made it clear that the creamy layer exclusion was meant to remove OBC candidates who had acquired certain social and economic privileges.

Using only economic criteria to exclude OBCs from reservation was not in line with the foundational principles of the creamy layer exclusion tool. It thus asked the Centre to create supernumerary posts for the litigant candidates and adjust them in the Civil Services accordingly.

However, months after this judgment, the Centre filed applications in the Supreme Court, arguing that it is “extremely difficult” to apply its ruling retrospectively, but also sought clarity on the income test itself, even arguing that in some cases, income from salaries should be considered because it might be the “sole intelligible differentia” between two different OBC candidates.

These applications are now listed before the Supreme Court and are scheduled to be taken up next later this month.