NEW DELHI: The discriminatory criteria for creamy layer determination came to life with a ‘clarificatory letter’ issued by the Centre in 2004, but, surprisingly, its origin has not been traced.While settling the controversy and ruling that the same criteria must be followed for all govt and non-govt employees, the apex court noted that Parliamentary Committee on Welfare of Other Backward Classes had also said in its report that the origin of the letter, which was contrary to the 1993 office memorandum (OM), could not be traced.”The observations of the parliamentary committee lend institutional support to the view that paragraph 9 has generated interpretative ambiguity and may have been applied beyond its intended contours.
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The report records that the 2004 letter did not emanate from the DoPT Secretariat and that its origin could not be traced in terms of the initial note file,” the court said.The court further said that it is a well-established principle that a mere govt letter cannot have the effect of overriding, overruling or superseding any proceeding in the nature of an executive instruction or an office memorandum issued in exercise of executive power under Article 162 of the Constitution. “The clarificatory letter must, therefore, be construed strictly as one explaining or supplementing the foundational guidelines laid down in the 1993 OM, which was issued after due deliberation and following the requisite procedure, and not as altering its substantive framework,” it said.
