Naman Ajay vs Union Of India & Ors.

The petitioners in these two writ petitions claim that they are entitled to be declared as belonging to the Non-Creamy Layer category, for the purpose of claiming reservation in admissions to professional degree courses and be issued with certificates in that regard. Since two writ petitions relate to the same issue, they are considered and disposed of together.

The petitioner in W.P.(C) No.4672 of 2026 belongs to the Ezhava Community which is notified as an 'Other Backward Community' (OBC). The said petitioner had submitted an application for the Kerala Engineering Architectural Medical Entrance Examination 2026 (for short ‘KEAM’). The petitioner in W.P.(C) No.10146 of 2026, wanted to obtain a Non-Creamy Layer Certificate for the National Eligibility cum Entrance Test Examination (for short 'NEET UG 2026'). The applications submitted by both petitioners were declined stating that the 'income exceeds the limits of Non-Creamy Layer'. Petitioners contend that they are entitled to the benefit of reservation as they do fall in the Non-Creamy Layer category as the income from other sources of their family is not above Rs.8,00,000/- (Rupees Eight lakhs only), which is the present cut off limit for income.

According to the petitioner in W.P.(C) No.4672 of 2026, her father is the Senior Vice President of a limited liability partnership at Hyderabad, and for the financial year 2025-26, he had an annual salary income of Rs.1,12,65,328/-. It is also stated that though petitioner's father owns apartments at Thripunithura and Hyderabad, both apartments were purchased by availing loans and one of them is in joint ownership with his son. Petitioner further alleges that apart from his salary income, her father has an income of Rs. 58,163/- under the head ‘Income from Other Sources’ and that her mother runs a small business and has only a meagre income. Petitioner asserted that since the salary income is liable to be excluded, she is eligible to be issued with a Non-Creamy Layer certificate so as to claim the benefit of reservation.

The petitioner in W.P.(C) No.10146 of 2026 states that his father, though a Non Resident Indian, working in United Kingdom as a Lead Solution Architect at Barclays UK Consumer Bank, has no other income other than salary, which totals to £.26,000 (equivalent to Rs. 33,00,000/- at present), and he too is entitled to be issued with a Non-Creamy Layer certificate.

A counter affidavit was filed in W.P.(C) No.4672 of 2026 stating that the petitioner's application for Non-Creamy Layer certificate was rejected since it was revealed that her father had an annual salary of Rs.1,12,65,328/- and numerous assets including two apartments and two luxury cars. The respondents also averred that the salary income and agricultural income though cannot be clubbed together, it does not mean that the former should be excluded, as they are separate heads to be counted. It is also stated that if the income from salary or income from other sources exceeds the prescribed limit, the person should be treated as falling under Creamy Layer, as evident from the Circular dated 14.06.2010. It was also stated that the petitioner's father owns a flat in Hyderabad, a flat in Kochi, 5 cents at Thripunithura, two motor cars of the make Audi and Honda City and hence he falls in the Creamy Layer category.

The counter affidavit also states that, as per an Office Memorandum dated 06.10.2017, which is produced as Ext.R5(c), the Non-Creamy Layer criteria for posts in public sector banks and insurance companies have been notified and only non-executive level posts are to be considered as Non-Creamy Layer. It was stated that the Senior Vice President in a large private company is undoubtedly an executive level position, analogous to the highest echelons of management in the public sector. Respondents further stated that employment in a private company does not immunize the income from the Creamy Layer test, as otherwise, all privately employed high income earners would wrongly avail the benefit of reservation defeating the very constitutional purpose of excluding the Creamy Layer. It is further stated that even if the salary of the petitioner's father is excluded, there is still evidence of assets, which pushes the candidate into the Creamy Layer category. Relying upon the Circular of the SC/ST Department bearing No.27396/F3/07/SCSTDD, respondents have asserted that the children of parents who possess wealth exceeding Rs.30,00,000/- are not eligible for reservation. Since wealth includes any building or land situated within 25 Kms from the local limits of any Municipality, Motor Cars, Jewellery, Bullion, Yachts, Urban land, Cash in hand etc., it was stated that the combined value of the assets of the petitioner's father far exceeds the minimum threshold limit of Rs.30,00,000/-with respect to the wealth test.

Sri. Peter Jose Christo and Sri.S.P. Aravindakshan Pillai, the learned counsel for the petitioner in W.P.(C) No.4672 of 2026 and Sri.K.S. Aneesh, the learned counsel for the petitioner in W.P.(C) No.10146 of 2026, submitted that the rejection of the application of the respective petitioners, pointing out that their income exceeds the limit for issuance of a Non-Creamy Layer certificate is totally erroneous. Relying upon the judgment of the Supreme Court in Union of India and Others v. Rohith Nathan and Another [2026 INSC 230], it was submitted that the income from salary ought to be excluded, while considering the income limit for issuance of a certificate and therefore the petitioners' whose parents, have only a very limited income from other sources, cannot be denied the benefit of the Non-Creamy Layer certificate.

Smt.Laya Mary Joseph and Sri.Unni Sebastian Kappan, the learned Government Pleaders, on the other hand, contended that the judgment in Rohith Nathan's case (supra) does not apply to the case of the petitioners, as the facts are easily distinguishable. It was also submitted that the income of the parents of both petitioners were substantially high and under no circumstances can the petitioners be regarded as falling within the Non-Creamy Layer category. The learned Government Pleaders submitted that the very purpose of creating such a category as Non-Creamy Layer, would be defeated, if persons like the petitioners are issued with such certificates, as they fall in a high income group.

On a consideration of the rival contentions, it is evident that the only question to be considered is whether petitioners are eligible to be issued with a Non-Creamy Layer certificate.

There is no dispute that the father of the petitioner in W.P.(C) No.4672 of 2026, has an annual salary of more than Rs.1.12 Crores, apart from possessing numerous assets. It is also not disputed that the father of the petitioner in W.P.(C) No.10146 of 2026, is a Non Resident Indian working in a multi national Bank with a conceded salary income of around £26,000 which is equivalent to more than Rs. 33,00,000/- at present. It is also not disputed that if the salary income of petitioners' parents are taken into reckoning, they do not fall in the Non-Creamy Layer category. Despite the above, they seek the benefit of such a certificate contending that as per the Government Orders, the salary income is liable to be excluded.

While appreciating the contentions raised, a brief retrospect of the concept of Creamy Layer is essential. In Indira Sawhney v. Union of India [(1992) Suppl. (3) SCC 217], (hereinafter referred to as the ‘First Indira Sawhney case’), a nine judges Bench of the Supreme Court, in a landmark judgment, held that, though reservation can be for a backward class citizen of a particular caste, from amongst the socially and economically backward class, the creamy layer has to be eliminated. It was also held that the creamy layer cannot be termed as socially and economically backward as the 'creamy layer' in the backward class has to be treated "on par" with the forward classes and are not entitled to the benefits of reservation. The Court further held that if the 'creamy layer' is not excluded, there will be discrimination and violation of Art.14 and 16(1) inasmuch as, equals i.e. the creamy layer in backward classes will be treated unequally and result in unequals i.e. the creamy layer, being treated as equals with the backward class. (Refer to paragraph 520 of the judgment). The judgment directed every State to identify the creamy layer in that State after appointing a Commission.

Subsequently, the State of Kerala failed to abide by the directions in the said judgment, to identify the Creamy Layer and contempt proceedings were initiated. Soon, a legislation was enacted as Kerala State Backward Classes (Reservation of Appointments or Posts in the Services under the State) Act, 1995, which declared in Section 3 that there are no socially advanced sections in any Backward Classes who have acquired capacity to compete with forward classes and also that the Backward classes in the State were not "adequately represented" in the services under the State and they would continue to be entitled to reservation under Clause (4) of Art.16 of the Constitution. When the validity of the said legislation was challenged before the Supreme Court, the Court through the Chief Justice of Kerala appointed Justice K. J Joseph (Retd) Committee to identify the creamy layer in Kerala. The said Committee submitted its report dated 04.08.1997 to the Supreme Court identifying the "creamy layer" in the Backward Classes in Kerala.

Thereafter, in Indira Sawhney v. Union of India [(2000) 1 SCC 168], (hereinafter referred to as the ‘Second Indira Sawhney case’), a three Judge Bench of the Supreme Court, struck down section 3, 4 and 6 of the said statute and held that the Court cannot allow the State to help the creamy layer to reap the benefits of its non exclusion. In the strongest terms possible, it was observed that the law made by the Kerala Legislature was not only discriminatory but was also in virtual defiance of the rule of law, apart from being an indefensible breach of the principle of equality. It was further observed that the legislation has allowed the 'creamy layer' among the backward classes in the State to continue to grab the posts in the services in government, public sector etc. even after the First Indira Sawhney Case, resulting in the really backward among the backward classes being deliberately deprived by the State, of their legitimate right to the posts which would have otherwise obviously gone to them.

In the First Indira Sawhney Case, it was observed that there are sections among the backward classes who are highly advanced, socially and educationally, who constitute the forward section of that community. It was held that these advanced sections do not belong to the true backward class and instead they are "as forward as any other forward class member". The Court also observed that if some of the members are far too advanced economically or educationally the connecting thread between them and the remaining class snaps and they would be misfits in the class. The judgment also specified the mode of identifying the creamy layer as including persons who had reached a higher level of social advancement and economic status who are to be treated as creamy layer "without further inquiry". Likewise, persons living in sufficient affluence who are able to provide employment to others are to be treated as having reached a higher social status on account of their affluence, and therefore outside the backward class. Those holding higher levels of agricultural land holdings or getting income from property, beyond a limit, were also observed as having to be excluded from the backward classes, The above has been held to be a judicial "declaration" made by the Court in Second Indira Sawhney Case. Thus, the principles as laid down in the two decisions ought to be borne in mind by this Court.

Be that as it may, in the meantime, the Central Government issued an Office Memorandum on 08.09.1993 specifying that reservation shall not be applicable to persons included in the schedule to the notification. Subsequent to the striking down of the provisions of the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services under the State) Act, 1995, the guidelines for excluding the Creamy Layer among the Socially and Educationally Backward Classes in the State of Kerala was also issued. Ext.P4 produced in W.P.(C) No. 4672 of 2026 is the Government Order dated 01.01.2015 relating to the scheme for excluding the Creamy Layer from the Backward Classes for reservation in admissions to Professional Degree Courses. The criteria for exclusion of Creamy Layer for reservation to SEBC’s in admission to Professional Colleges was specified in the Schedule attached. The schedule deals with different categories of posts and persons. The first deals with the category relating to children of those holding Constitutional posts while second is the service category which is divided into three sub-categories as A, B & C. Sub-category A deals with Group A/ Class I Officers. Sub-category B deals with group B/Class II Officers. Sub-category C deals with employees of public sector undertakings holding equivalent or comparable posts as those enumerated in Clauses A and B. This is made applicable to equivalent or comparable posts and positions under private employment as well.

If equivalency or comparable nature of posts have not been stipulated by the Government, for those working under private employment, the income/wealth test as per criteria specified in Category VI of Ext.P4 will apply. For a better comprehension, the said criteria is extracted below:

On a reading of the above criteria, it is evident that the gross annual income is the factor to be reckoned for the persons employed in the private sector, where the equivalent or comparable posts have not been notified. In view of the binding declaration of the Supreme Court in the two Indira Sawhney cases, there cannot be a situation where merely because equivalent posts in the private sector have not been notified, all those working in the private sector would automatically become eligible to be included in the Non-Creamy Layer, unless they have income from other sources. To understand Ext.P4 Government Order better, it is relevant to note that the Income/Wealth Test has two categories of which the first is (a) i.e., a person with gross annual income of more than Rs.8 lakhs or possessing wealth above the exemption limit. The second is (b). i.e., persons who are employed in Categories I,II, III and V(A) (those holding constitutional posts, Group A & B Officers, Officers of Armed Force and those property owners who hold more than 5 hectare of agricultural holdings). Persons, who, though falling under the said categories, and are yet not disentitled for benefit of reservation, will still be disentitled, if they have income from other sources of wealth. Taking note of the principles laid down in the First Indira Sawhney case and the scheme of Government Order referred above, it is evident that the ‘Explanation’ can apply only to the category of persons mentioned in Category VI(b) and not to Category VI(a).

The position can be viewed in another angle by assuming that the ‘Explanation’ applies to both Categories VI(a) and VI(b). Still, the Explanation only states that while calculating the gross annual income, the income from salary shall not be clubbed with agricultural income. The relevance of this ‘Explanation’ arises when the calculation of gross annual income is viewed in the light of section 10 of the Income Tax Act, 1961 as per which, the total income of a person is calculated under different heads in which agricultural income of an individual is excluded. The ‘Explanation’ therefore, can be interpreted to stipulate that while calculating the income, the salary shall not be clubbed with agricultural income. It cannot be deciphered either from the scheme of the Government Order or from the principles relating to exclusion of Creamy Layer as laid down in the First Indira Sawhney Case, that while calculating the annual income, the income from salary should be excluded. While calculating the gross annual income of a person, to exclude the salary income for identifying the Non-Creamy Layer, will lead to absurd and anomalous situations, contrary to the principles for exclusion of Creamy Layer.

If the contrary interpretation, as canvassed by the learned Counsel for the petitioners, is adopted, the deserving amongst the backward classes would be deprived of opportunities. Enabling the Creamy Layer to grab the benefits of reservation, subdue and suppress the voice of the Non-Creamy Layer. Hence the Explanation cannot be interpreted to mean that the salary income should be excluded while calculating the gross income of a person in private employment.

In Rohith Nathan's case (supra), the Supreme Court had considered a batch of appeals in respect of claimants who were working in public sector undertaking as well as a private organisation. After considering the entire position of law, the Court came to the conclusion that the object of excluding the Creamy Layer is to ensure that socially advanced sections within the OBC's do not appropriate benefits meant for the genuinely backward classes. It was further observed that the exclusion of Creamy Layer among the backward classes is not a matter of mere policy preference, but a constitutional imperative, intended to ensure that the benefits of reservation reach those who are socially and educationally backward in the true sense of the phrase. It was further observed that the principle seeks to prevent relatively advanced segments within the backward classes, from siphoning off the advantages of affirmative action so that the objective and purposes of the constitutional scheme of affirmative action, of which reservation is a reflection, are adhered to. The Supreme Court also observed that income is intended to operate only as a surrogate measure.

In this context, it needs to be mentioned that as far as private sector employment is concerned, till date, no equivalent or comparable posts with the Government have been notified. When such comparable or equivalent posts have not been notified, as per the scheme of the Government Order dated 01.01.2015, it cannot lead to a situation where there is no Creamy Layer at all in private employment. The stipulation is that when equivalent posts have not been notified, the method to identify the Non-Creamy Layer is the income or wealth test. The decision in Rohith Nathan's case (supra) does not state that the income or wealth test should not at all be considered.

Be that as it may, this Court is fortified by the decision in Ashish Kumar v. The Chairman-cum-Managing Director, State Bank of India & Others [(2014) SCC Online Pat 7934], wherein, it was observed that the Explanation to Clause VI of the income/wealth test merely bars clubbing of income from salary or agriculture land. It does not say that income from salary will not be taken into account at all.

Apart from the above, in a recent decision of the Madras High Court in Rupak Roshan v. Sub-Collector (Revenue) and Another [(2025 SCC OnLine Mad 4125)] it was observed that the very purpose of excluding the economically affluent class from the benefits of reservation is that the actual benefits should reach the deserving class of people, who are economically weaker within the OBC. On that basis, the petitioner in that case, who was having an annual income of Rs.18,00,000/-, was held to be well above the prescribed income limit and therefore, held to be not eligible for the benefit of reservation under “Non-Creamy Layer”.

In this context, it is appropriate to refer to the decision in State of Kerala v. Michael Antony K.G.[2026.KER.18280], wherein a Division Bench of this Court had concluded that the phrase 'income from salaries or agricultural land shall not be clubbed' was not intended to mean that such income from salary shall not be taken into consideration at all, while calculating the gross annual income of those who fall within Category-IV of Schedule to Annexure III of the Government Order referred therein.

As noted earlier, if income or wealth test is required to be applied, excluding the salary income could lead to absurd results. The classic example is that of the petitioners in these two cases. Despite the father of the petitioner in W.P.(C) No. 4672 of 2026, employed as a Senior Vice President of a Private Company, falling in the high income group with a salary of more than Rs.1.1 crores and assets like two apartments, obviously worth more than a crore of rupees and luxury cars, will still be entitled to claim that she falls in the Non-Creamy Layer. Similarly, the father of the petitioner in W.P.(C) No. 10146 of 2026, being employed in United Kingdom as the Lead Solutions Architect for a multinational Bank earning a handsome salary, and if salary income is excluded, he may be eligible to contend that he falls in the Non-Creamy Layer. Such an interpretation goes against the very scheme of creating the Creamy Layer category. Of course, assets are also to be reckoned to identify whether they possess wealth above the maximum limit. While the petitioner in W.P.(C) No. 4672 of 2026 is found to possess even wealth above the maximum permissible limits, the petitioner in W.P.(C) No. 10146 of 2026 has not furnished such details.

In view of the above discussion, this Court is of the opinion that, as the parents of the petitioners in both these writ petitions have income as well as wealth, far in excess of the limits prescribed, they cannot fall in the category of Non-Creamy Layer.

Hence, there is no merit in these writ petitions and they are dismissed.

Exhibit P1 THE TRUE COPY OF THE NON-CREAMY LAYER CERTIFICATE DATED 26.01.2026 AND ISSUED BY VILLAGE OFFICER, EDAPPILLY SOUTH VILLAGE

Exhibit P2 THE TRUE COPY OF THE APPLICATION DATED 02.03.2026 WITH APPLICATION NO.110759544 BEFORE THE 6TH RESPONDENT

Exhibit P3 THE TRUE COPY OF THE APPLICATION DATED 08.03.2026 WITH APPLICATION NO.260412047257 BEFORE THE 2ND RESPONDENT

Exhibit P4 THE TRUE COPY OF THE ONLINE PRINT OUT FROM E-DISTRICT APP REJECTING THE EXHIBIT P2 APPLICATION

Exhibit P5 THE TRUE COPY OF THE OM NO.36012/22/93-ESTT.(SCT) DATED 08.09.1993 ISSUED BY THE MINISTRY OF PERSONAL, PUBLIC GRIEVANCES AND PENSIONS (DEPARTMENT OF PERSONAL AND TRAINING)

Exhibit P6 THE TRUE COPY OF THE RTI APPLICATION DATED 17.03.2026 FILED BEFORE THE 6TH RESPONDENT BY THE PETITIONER

Exhibit P7 THE TRUE COPY OF THE REPLY DATED 16.04.2026 FOR THE EXHIBIT P6 RTI APPLICATION BY THE 6TH RESPONDENT

Exhibit P8 THE TRUE COPY OF THE APPLICATION DATED 17.03.2026 FILED BEFORE THE 6TH RESPONDENT BY THE PETITIONER

Exhibit P9 THE TRUE COPY OF THE REPLY DATED 16.04.2026 FOR THE EXHIBIT P8 APPLICATION BY THE 6TH RESPONDENT

Annexure R3(a) THE COPY OF PUBLIC NOTICE DATED 08.02.2026 AND 08.03.2026

Annexure R3(b) TRUE COPY OF ONLINE APPLICATION FORM/CONFIRMATION PAGE AS FILLED BY THE PETITIONER

Annexure R1(c) THE RELEVANT EXTRACTS OF INFORMATION BULLETIN OF NEET(UG) 2026

Exhibit P1 TRUE COPY OF THE CASTE CERTIFICATE NO.99460561 DATED 15.01.2026 ISSUED TO THE PETITIONER

Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES, 2026

Exhibit P3 TRUE COPY OF THE APPLICATION STATUS EVIDENCING THE REJECTION OF THE APPLICATION SUBMITTED BY THE FATHER OF THE PETITIONER DOWNLOADED FROM GOVERNMENT PORTAL

Exhibit P4 TRUE COPY OF THE RELEVANT PAGES OF G.O. (P)NO.1/2015/BCDD DATED 01.01.2015.

Exhibit P5 TRUE COPY OF G.O.(MS)NO.3/2018/BCDD DATED 09.04.2018.

Exhibit P6 TRUE COPY OF THE RELEVANT PORTIONS OF THE INCOME TAX RETURNS FILED BY THE FATHER OF THE PETITIONER FOR THE ASSESSMENT YEAR 2025-2026

Exhibit P6(a) TRUE COPY OF THE RELEVANT PORTIONS OF THE INCOME TAX RETURNS OF THE MOTHER OF THE PETITIONER VIZ. JOSHILA RAMESH FOR THE ASSESSMENT YEAR 2025-26

Exhibit P7 TRUE COPY OF THE APPEAL DATED NIL SUBMITTED BY THE FATHER OF THE PETITIONER BEFORE THE 5TH RESPONDENT WITHOUT ITS ENCLOSURES.

Exhibit P8 TRUE COPY OF THE ORDER NO.RDOCHN/127/2026-A1 DATED 04.02.2026 OF THE 5TH RESPONDENT.

Exhibit P9 TRUE COPY OF THE COMMON JUDGMENT DATED 25.11.2024 IN WP(C)NO.1727/2024 OF THIS HON’BLE COURT

Exhibit P10 TRUE COPY OF THE INTERIM ORDER DATED 07.04.2025 IN W.A.NO.373/2025 OF THIS HON’BLE COURT.

Exhibit R5 (a) TRUE COPY OF THE CIRCULAR NO. 27396/F3/07/SCSTDO DATED 14/06/2010

Exhibit R5 (b) TRUE COPY OF THE OM NO.36033/5/2004-ESTT (SCT DATED 14/10/2004

Exhibit R5 (c) A TRUE COPY OF THE MEMORANDUM NO. 41034/5/2014- ESTT. (RES.) VOL.IV PART DATED 06.10.2017.