HC Strikes Down GO. MS. No. 33

The decision to provide 5% Muslim reservation was challenged before the High Court. A bench comprising Justice B. Sudarshan Reddy, Justice A. Gopal Reddy and Justice K.C. Bhanu struck down the G.O. Ms. No. 33 dated 12.07.2004 as it found it to be violative of Articles 14, 15(1) and (4), 16(1) and 16(4) of the Constitution of India.

Although the HC order came as a major blow to our efforts in empowering the community through reservation, the judgment broke several myths and provided right direction to the government to implement quota for socially, educationally and economically backward Muslims in the State.

We are hereby reproducing some excerpts of judgment of Justice Sudarshan Reddy bench which are quite enlightening.

“Several of the most divisive moral conflicts that have beset us Indians, in the period, since the dawn of independence have been transmuted into constitutional conflicts – conflicts what the Constitution of India forbids – and resolved as such. The most prominent instances include the conflicts over Federalism, Secularism, sex-based discrimination and affirmative action. The conflicts over affirmative action programme occupy a large space.

The great bulk of constitutional litigation concerns State enactments and nearly all of that litigation purports to be based on a single sentence of Article 14 and, indeed, on one or the other of two pairs of words, “equality before the law” and “equal protection of the laws”. If the Constitution is the embodiment of our aspirations, it must have become so very largely because of those two pairs of words. Each is a protection with centuries of history behind it, often dearly bought with the blood and lives of people determined to prevent oppression by their rulers.

When the Supreme Court revisited the question of whether and under what circumstances the State may engage in affirmative action in Indra Sawhney & Others v. Union of India & Others, what is popularly known as Mandal Commission case, which is considered to be a great and comprehensive work of learning and scholarship on the question of reservations in favour of vulnerable sections of the society, it was perceived to have had provided final solution to the problems arising in that regard. Significant progress has been made on both the constitutional and philosophical fronts, as various issues have been significantly clarified and diverse position given cogent articulation. Yet, the debate over affirmative action has recently intensified, with advocates and foes as bitterly divided as ever.

This debate on reservations involves complex and sensitive issues. No doubt a great deal has already been said, much of it on merit and on point. That occasion had arisen once again and the issue is presented for consideration before the Court vested with the power of judicial review. The modern activist State is a concomitant of the complexity of modern society; it is inevitably with us. We must meet the challenge rather than wish it were not before us.

It is apt to recall the following observations of Sawant, J in Indra Sawhney’s case (1 supra ):

“In a legal system where the Courts are vested with the power of judicial review, on occasions issues with social, political and economic overtones come up for consideration. They are commonly known as political questions. Some of them are of transient importance while others have portentous consequences for generations to come. More often than not such issues are emotionally hypercharged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, and sentiments run high. The Courts have, however, as a part of their obligatory duty, to decide them. While dealing with them the courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the long term interests of the society as a whole. Such problems cannot always be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them. The present is an issue of the kind.”

A word about the Constitutional logic of Reservations:

The problem of reservational protective discrimination is multi-dimensional involving formidable burdens of “policy-making and administration in a developing nation.”

One of the most treasured liberties provided in the Constitution, and perhaps the liberty that sets the India apart from many third world countries, is ‘equality under the law’ and ‘equal protection of the laws’. This principle is enshrined in the trinity of Articles 14, 15 & 16 of the Constitution of India. Equality is not an amorphous concept that exists in the minds of dreamers and scholars, but a real and significant liberty affecting our everyday lives as citizens of this great country. There have been times in our history when equality, although sought, was not realized by all citizens.

Equality is an important component of part of Justice which all political systems governed by rule of law and constitutionalism, aspire to secure. It is an essential and indispensable ingredient of government of laws. Ours is the government of laws and not of men. Article 14 specifically rules that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Articles 15 and 16 illustrate the ways to give concrete shape to the right of equality.

Article 15(1) provides that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ and Clause (2) of this Article prohibits on these grounds, subjection to any disability, liability, restriction or condition with regard to “access to shops, public restaurants, hotels and places of public entertainment, or “the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public”. Article 16(1) ensures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and Clause (2) of this Article prohibits discrimination in matters of such employment against any citizen only on the grounds of religion, race, caste, sex, descent, place of birth, residence or any of them. Like-wise Article 29(2) prohibits denial of admissions into any educational institutions maintained or aided out of the State funds on grounds only of religion, race, caste, language or any of them. These provisions speak of equality in principle and inspire the constitutional dealing on the basis of religion blind, caste blind, race blind, sex blind principles. But these provisions present one side of the principle of equality, i.e., like should be treated alike.

  1. The other side of equality is that ‘it is in fact a protest against unjust, undeserved and unjustified inequalities.’ “It is a symbol of man’s revolt against chance, fortuitous disparity, unjust power and crystallized privileges.”

Where inequality is rampant due to historical reasons, Justice demands unequal treatment of unequal people and where people are depressed and socially disadvantaged special positive governmental care is needed to enable such people to compete with the rest of the people. The non-positive action of the government would result into perpetuation of inequality already prevalent in society. The positive preferential treatment of the depressed classes or the weaker sections of society is called by different names like, protective discrimination or reverse discrimination or compensatory discrimination, benign discrimination, affirmative action and so on. The term ‘protective discrimination’ denotes the idea that the object of special or preferential treatment is not so much to give any special privileges as to extend protection to those who have been exploited due to centuries of oppression and ill treatment and but for the special treatment are vulnerable to exploitation.

Affirmative action is justified, not because those who are given preference are entitled to an advantage, whether in compensation for past discrimination or for any other reason, but simply because “helping them is now an effective way of attacking a national problem.”

V.R. Krishna Iyer, J. once observed – “the unanimity among the leading statesmen, jurists, sociologists, constitutional law scholars and think tanks that the constitutional protection of the weaker sections in India was an indispensable desideratum and the modus operandi is socio-legal engineering geared to the national objective”.

Dr. Ambedkar observed – “Political democracy cannot succeed where there is no social and economic democracy. Social and economic democracy are the tissue and the fibre of a political democracy. The tougher the tissue and the fibre, the greater the strength of the body politic.”

The equality of social status can never be achieved unless there is a reasonable representation of those segments of society, who have been kept out of power since time immemorial, in its power generating structures.

One mode to bring equality in the society is to rearrange the material resources as well as human forces. That not only the relations for production must change but the human forces also must be reorganized to ensure equality of opportunities.

Reservations are part of this scheme.

The essence of the policy of reservation in public employment lies in the fact that in a caste ridden society, the control over bureaucratic structure by only some castes creates distorted authority in society. The access to and the control over public institutions convert effective powers over the material resources, political authority and finally over the well being and life chances of those who are out of power structure. “A network of jobs consisting of a network of upper and allied castes can ensure the power of life and death over a whole host of lesser castes and hold the latter down on their knees for all time”

Unless the authority generating jobs are distributed over the entire social landscape, equality of opportunity remains a teasing illusion.

Modern education is the passport to enter into public employment. The octopus grip and control over the educational institutions has remained the initial road block for lower caste communities to enter into it. The objective of broad based government jobs can never be realised unless their entry into modern educational institutions is safeguarded.

This in essence is the philosophy behind reservations. Dr. B.R. Ambedkar and Ram Manoher Lohia, the great visionaries suggest this line of approach with foresight and determination. They were of the view that new India with values of democracy and socialism could not be built unless there were deliberate attempts to reorganize the power generating structures in society. Social equality cannot be achieved by relying on an uninterrupted race between privileged and under-privileged.

Lohia said: “Caste restricts opportunity. Where caste prevails, opportunity and ability are restricted to ever narrowing circles of the people, equal opportunity can further widen the gulf. Groups whom centuries have made able are in a position to make near-monopolistic use of equal opportunity. India’ s experience is conclusive proof that caste turns a country into the arid deserts of intellectual inadequacy.”

The goal of Constitution is the attainment of social equality. Indian Society which is basically caste ridden never had the opportunity to organize and structure itself on the basis of equality even in the formal sense. The need of hour is to structure the society in a way leading to the goal of social equality. Social equality cannot be decisively achieved only by eradicating economic inequality. Social justice demands fair and equitable distribution of authority, income and status.

What is needed to make social equality a reality is to base on equality of results. The implicit concern for social equality is “that the social order is not to establish and secure the more attractive prospects of those better off unless doing so, to the advantage of those less fortunate.”

Social equality in a democratic society requires that people should not only have equal political right but also must have equal social status. This cannot be brought about by free play of forces in society, a framework capable of perpetuating inequality.

This philosophy of reservations is enshrined and inherent in Articles 14, 15 & 16 of the Constitution of India.”

Justice Sudarshan Reddy bench also gave a detailed account of chronology of Muslim reservation in Andhra Pradesh.

On 25.8.1994, the Government issued G.O.Ms.No.30 Backward Classes Welfare (P.II) Department ordering Muslims, Kapus, Balijas and Telagas to be treated as socially and educationally backward classes of citizens for the purpose of reservation of seats in educational institutions and for recruitment to jobs in Government and local bodies. In the said G.O., the Government noted that on the directions of the Supreme Court, the Government of A.P. Constituted Act 20 of 1993; While the Commission was examining the representations received from various communities for inclusion in the list of backward classes, there has been considerable unrest among the members of various castes and communities in support of the long pending demand for inclusion in the list of backward classes.

The Government made a request to the Commission for an interim report in regard to the social and educational backwardness of those castes and communities but the Commission expressed its inability to do so. The Government noted that the demand of the castes and the communities referred to for inclusion in the list of backward classes is a long pending demand with a mass support sometimes even causing unrest, for the simple reason that certain communities which are more or less on par with them in the matter of social and educational backwardness have already been included in the list of backward classes.

The constitutional validity of G.O.Ms.No.30 dated 25.8.1994 has been challenged in the A.P. State Backward Classes Welfare Association v. State of Andhra Pradesh Backward Classes Welfare Department.

The High Court having interpreted the G.O. found the same not as a final decision for providing reservations to the communities enlisted in the impugned G.O. It was held: “The G.O. can at best be treated as a requisition to the Commission to send a report as regards the reservation to the communities enlisted in the G.O. ………….The impugned G.O. has not brought-in a situation where a revision as such is effected to the existing list, but simply an identification of different communities is made for being enlisted by the Commission. It is for the Commission to enlist such communities in its report in a recommendatory form to the Government for its acceptance. The Commission may or may not accept the identification made by the Government through the impugned G.O more so when there are petitions filed before the Commission – as was submitted – seeking non inclusion of the said communities in the list.”

However, one of the learned Judges took slightly a different view and held that prior consultation with the Commission was mandatory for exclusion of any existing backward classes and as well as inclusion of any new backward classes in the list. In the view of the learned Judge, even piece-meal inclusion in the list of backward classes amounts to revising the list for which purposes prior consultation of the Commission under Section 11(2) of the Act is mandatory. The learned Judge accordingly held the G.O. to be subject to the report of the B.C. Commission and the same not to be given effect to until filing of such a report by the B.C. Commission. In view of the said judgment, Muslims and other communities mentioned in that G.O. were not added and included in the list of backward classes. The matter is stated to be under consideration of the B.C. Commission.

While the matter stood thus, a meeting of various Secretaries was held on 2.6.2004 by the Chief Secretary to the Government of A.P. to discuss the matter regarding reservations to the Muslim minorities. The following three issues were discussed in the said meeting:

  1. Whether Muslim Community can be provided any reservations in employment and educational institutions on par with other backward classes in the State through an executive order?
  2. Whether recommendations of any statutory commission are necessary for issuing an executive order for providing any reservation to Muslim Community on par with other B.Cs. in the State?
  3. Whether the total reservations in the State could exceed 50% as the Supreme Court in its interim order in WP 438 of 1994 has stated that the total reservations in any State should not exceed 50%.

It was finally resolved to entrust the issue “to some Governmental organization/authority, preferably to the Commissionerate for Minorities Welfare headed by Ex-Officio Commissioner working under the administrative control of the Minorities Welfare Department to examine the socio-economic and educational conditions among Muslim community by utilizing the material, if any, available with the Commissionerate or with any other Commission or by studying the issue further, if necessary, and to submit a report to the Government as to whether the socio-economic and educational conditions of Muslim community warrant reservations for them in employment and educational institutions on par with other B.Cs. in the State”.

  1. On 4.6.2004, the Government issued G.O.Ms.No.15 entrusting the work “relating to the study of socio-economic and educational conditions of Muslim community in the State to the Commissionerate of Minorities Welfare headed by the Ex-officio Commissioner to examine the social, economic and educational backwardness of Muslim community in the State for the purpose of including them within the purview of the backward classes of citizens under Articles 15(4) and 16(4) of the Constitution of India and present its report to the Government at an early date”.

The Ex-officio Commissioner/Commissionerate of Minorities Welfare, who is none other than the Principal Secretary to the Government submitted its report to the Government on 5.7.2004 recommending to provide 5% reservations to “Muslim Minorities in employment, educational and other fields on par with the Backward Classes in the State.”

The Government having accepted the recommendations made by the Commissionerate of Minorities Welfare issued orders vide G.O.Ms.No.33 dated 12.7.2004 directing that Muslims in the State are to be provided with 5% reservations in educational institutions and employment in the State, over and above the reservations presently provided to the backward classes and be treated as backward class under category-E (in addition to the existing A.B.C.D categories).” All the departments of the Government were accordingly directed to make necessary amendments to the Rules and Regulations in that regard. It is that G.O. which is challenged in this batch of writ petitions on various grounds.

The validity of G.O.Ms.No.33 dated 12.7.2004 was attacked on various grounds:

  1. There is no investigation or enquiry or any proper attempt made by the Commissionerate of Minorities Welfare for identification of social and educational backwardness in Muslim minorities as per the law laid down by the Supreme Court in Indra Sawhney’s case. The very process of identification by the Commissionerate of Minorities Welfare is without any application of mind. Neither the Government nor the Commissionerate indicated the criteria to be adopted for the purposes of identification of Muslims as socially and educationally backward. The report takes into consideration many irrelevant factors, which are not germane for the purpose of identification of any class as a backward class. The procedure adopted is in breach of the provisions of Articles 15(4) and 16(4) of the Constitution of India.
  2. The report submitted by the Commissionerate of Minorities Welfare claiming to be the study of socio-economic conditions has completely failed to advert itself to the social conditions of Muslims which alone entitles them to claim social backwardness. This aspect of the matter has been completely ignored by the report. The previous investigation and the enquiry made by the A.R. Commission and the M.R Commission and their reports rejecting the claim of Muslim community as a whole to be included in the backward classes on the ground that the community is not socially backward had not been taken into consideration by the Commissionerate. There is no reference to the earlier reports and the material collected by the previous Commissions. The whole exercise undertaken by the Commissionerate of Minorities Welfare is an eye-wash resulting in a tailor made report facilitating the Government to give effect to its predetermined policy of providing reservations to Muslims in the State.
  3. The Government has an obligation to consult the Backward Classes Commission constituted under the provisions of Act 20 of 1993 before revising the list of backward classes. Section 11(2) of the Act mandates the Government to consult the Commission while undertaking any revision of the list. Non-consultation with the Commission vitiates the decision.
  4. Identification of the whole of the Muslim community as a backward class without excluding the creamy layer is bad in law. Non-exclusion of the creamy layer would amount to discrimination and violation of Articles 14, 15(1), 15(4), 16(1) and 16(4) of the Constitution of India. Non-exclusion of the creamy layer resulting in inclusion of the forward classes in the backward classes would not only violate Articles 14 and 16(1) of the Constitution of India but also would be in breach of the basic structure of the Constitution.
  5. The reservations made in favour of socially and educationally backward classes under Article 15(4) and in favour of backward classes under Article 16(4) of the Constitution of India should not normally exceed 50%. On account of the inclusion of the entire Muslim community into the list of backward classes, the total reservations would come up to impermissible limit of 55.75% and the reservations so made are to be struck down on that ground alone.

The Advocate General, appearing for the State, supported the legality and validity of the impugned G.O. providing reservations in favour of Muslims. He disputed the correctness of various contentions urged for and on behalf of the petitioners. The main thrust of the submission was that the provisions of Act 20 of 1993 have no application to the fact situation on hand. Section 11 of the Act comes into play whenever the Government undertakes to revise the list of the backward classes but not when a particular group is to be included in the list of backward classes. It was also contended that Section 11 is directory in its nature and not a mandatory one.

The Commissionerate of Minorities Welfare has taken into consideration the survey done through the District Minority Welfare Officers and the officials of the Andhra Pradesh Minorities Commission; the material gathered on record is sufficient to determine the whole of Muslim Community as a backward class. The power under Articles 15(4) and 16(4) to provide social reservations in favour of deserving classes vests in the State and that power can be exercised even in the absence of any report by a Commission/Committee. The State is entitled to rely on the material available with it to provide reservations. The sufficiency or otherwise of the material relied upon by the Government to determine a particular caste or group as a backward class cannot be gone into by this Court in exercise of its judicial review jurisdiction. The scope of judicial review in the matter of this nature is a limited one. Identification of a group or class as socially and educationally backward is a policy decision and the Courts normally do not interfere with the policy decisions of the State.

A caste, a community or even a religious group can be a class of citizens if they are found to be backward under Articles 15(4) and 16(4) of the Constitution, the State can make a special provision for the whole of the caste, religion or community.

Identification of a class of citizens as backward class citizens is essentially the function of the Government and the scope of judicial review of such an exercise of identification is not akin to that of appellate or revisional jurisdiction.

Consultation with the Commission under Act 20 of 1993 is only for periodic revision of the list by the Government and this requirement of consultation cannot be insisted in case where State in exercise of its power conferred under Articles 15(4) and 16(4) of the Constitution takes steps for identification of any new backward classes for making special provisions in their favour.

It is urged that the Government having set up one expert body through Act 20 of 1993 had set up another expert body specifically for the minorities through the Andhra Pradesh State Minorities Commission Act, 1998 (for short ‘Act 31 of 1998’), which is a special enactment and consultation with the body created under the provisions of the said Act satisfies the mandate of the Supreme Court in Indra Sawhney’s case (1 supra) and obviates the need to consult the Commission set up under Act 20 of 1993 when the reservations for the minorities is the question. It is alternatively submitted that the B.C Commission set up under Section 3 of Act 20 of 1993 is no longer in existence, its period not having been extended, therefore, the question of consulting a ‘body’, which is not in existence, does not arise.

Pro-reservation counsels contended that the scope of Act 20 of 1993 is limited in its operation and consultation, if any, by the State with the Commission is required only when the State intends to revise the list of backward classes prepared by the Government for the purpose of making provision for the reservation of appointments of posts; there is no requirement in law to consult the Commission in cases where the Government intends to identify any new caste/group as socially and educationally backward for the purposes of providing reservation to seats in educational institutions. It is thus submitted that the impugned G.O insofar as conferring the benefits under Article 15(4) does not suffer from any illegality for the reason of non-consultation in terms of Section 11(2) of Act 20 of 1993. The impugned G.O is severable at least to the extent of Article 15(4).

Some of the counsel contended that the Government of Andhra Pradesh has already consulted Justice Putta Swamy Commission for inclusion of Muslims in the list of Backward Classes and also sought for an interim report but the Commission did not respond and failed to discharge its duty in not tendering its opinion/advise; in such circumstances, the repository power to make social reservations need not wait interminably. Reliance was placed on the doctrine of necessity and the doctrine of “Lex non cogit ad impossibilia”.

It was further contended that the writ petitioners failed to discharge the burden of proof to show that the Muslims are not socially and educationally backward since no mala fides have been alleged and the facts and figures stated in the report submitted by the Commissionerate remain uncontroverted; no further enquiry is called for. The writ petitions are liable to be dismissed on the ground that the petitioners failed to discharge their onus.

But other counsel took a slightly different stand. His submission was that providing reservations to seats in educational institutions and posts in government services is an aspect of principle of equality. One need not always go via Articles 15(4) and 16(4) of the Constitution for providing reservations and one can directly access Articles 15(1) and 16(1) for justification for providing reservations. The reservations meant in favour of Minorities, according to him, can be justified under Articles 15(1) and 16(1).

Sri Challa Sitaramaiah, learned Amicus Curiae, assisted the Court and made his submissions. The learned Amicus Curiae submitted that the impugned G.O does not satisfy the conditions laid down by the Supreme Court in Indra Sawhney’s case (1 supra) for classifying the entire Muslim Community as backward class for the purposes of Articles 15(4) and 16(4) of the Constitution of India. The Government having constituted an expert body under Act 20 of 1993 with power coupled with the duty to advise, was bound to consult the Commission. The Government cannot take advantage of its own acts of omission and commission and plead any inability in complying with the mandatory provisions of Act 20 of 1993.

It was further submitted that the reservations cannot be made on the basis of religion or community and any such reservations made on the basis of religion, it becomes communal. In communities where there is no caste system, the authority entrusted with the task of identification should evolve a rational scientific method of identification of the backwardness in that community. The best method is occupation. Learned Amicus Curiae further submitted that the creamy layer ought to have been excluded before including the whole of the Muslim Community as a backward class.

On an analysis of the submissions made and contentions raised, the following questions arise for consideration:-

QUESTIONS:

1(a) What does the expression “socially and educationally backward classes” in Article 15(4) and the expression “backward class of citizens” in Article 16(4) mean?

1(b) Whether the Muslims as a group are entitled to affirmative action/social reservations within the constitutional dispensation?

2) Whether the backward classes can be identified on the basis and with reference to caste, if so, what is the criteria for identifying the non-Hindu communities as a backward class?

3) Whether the process of identification of Muslims as a group as “backward class of citizens” by the Commissionerate of Minorities Welfare is vitiated?

4) Whether Section 11(2) of Act 20 of 1993 is mandatory in its nature, if so, what are the consequences of non-compliance?

5) Whether the Creamy Layer is to be excluded in the course of identification of backward classes?

6) To what extent the social reservations can be made?

7) Whether the reservations in favour of Muslims is traceable to Articles 15(1) and 16(1) of the Constitution of India?

8) What are the parameters and extent of judicial review with regard to identification of backward classes and the percentage of reservations made for such classes?

Having answered all these questions, the High Court made the following observations:

Sections/groups among the Muslim community or the Muslim community itself can be identified as a socially and educationally backward class for the purpose of Article 15(4) and as backward class of citizens for the purpose of Article 16(4) provided they satisfy the test of social backwardness.

Reservations for Muslims or sections/groups among them, in no manner militate against secularism, which is a part of the basic structure of the constitution. The concept of secularism is based on a benign neutrality to benefit all including religious groups and it seeks to advance “good” for all including religious groups. Articles 14, 15 and 16 enjoin upon the State to treat all its people equally irrespective of their religion, faith or belief. The State while discharging its constitutional obligation cannot make any distinction between one group of citizens and other on the ground of religion, faith or belief. The religion, faith or belief of a person or group of persons is totally immaterial so far as the State action is concerned. The State cannot exclude from its consideration the demands, entitlements of any constitutional claimants on the ground of religion, faith or belief.

Whether a group, caste or class is entitled to the benefit of affirmative action does not depend upon religion, faith or worship.

While striking down the GO MS No. 33, Justice Sudardhan Reddy bench gave three directions to the Government of Andhra Pradesh:

1) The Government of Andhra Pradesh shall forthwith initiate the process of reconstituting the Andhra Pradesh Commission for Backward Classes and complete the same within a period of three months. That immediately upon such reconstitution, the Government shall initiate the process of consultation and seek the opinion of the Commission for inclusion of the Muslim Community into the list of backward classes.

2) The Commission shall examine the requisition/request of the Government and shall decide the same by duly giving its opinion within a period of six months from the date of such requisition/request being made by the State Government. It shall be open to the State Government to forward the entire material in its possession, including the material collected by the Commissionerate of Minorities Welfare for the perusal and consideration of the Backward Classes Commission.

3) The identification of any caste, social group or community involves exclusion of creamy layer. The State of Andhra Pradesh though a party to the decision rendered by the Supreme Court in Indra Sawhney’s case (1supra), so far did not lay down any criteria for identification of creamy layer. In the circumstances, it would be just and necessary to direct the State Government to lay down the criteria for identification of creamy layer so that it could be applied while considering the case of the Muslim Community for identification as backward class. That an appropriate criteria shall be evolved by the Government in terms of the directions of the Supreme Court in Indra Sawhney’s case (1 supra). The very process of identification of backward classes involves identification of creamy layer amongst them.

The criteria in this regard shall be laid down by the State Government within a period of three months or in the alternative to follow the criteria laid down by the Government of India in its Memorandum dated 8.9.1993 which has received its affirmation in Ashok Kumar Thakur vs. State of Bihar (69 supra) and Indra Sawhney’s case-II (67 supra), in order to facilitate the expeditious disposal of the claim of the Muslim Community for their identification as a backward class.