JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri V.K. Singh, learned counsel for the petitioner, learned Standing Counsel and Sri Kripa Shankar Singh, learned counsel appearing for respondent No. 3. 2. Present writ petition is directed against the judgment and order dated 26.2.2004 passed by the Central Administrative Tribunal, Allahabad in Original Application No. 1201 of 1996 whereby the order of cancellation of selection of respondent No. 3 was quashed. 3. Brief facts giving rise to the present writ petition are that the applicant i.e. respondent No. 3 in pursuance of the advertisement issued in the month of June, 1994, applied for the post of Scientist-I in various discipline including Biotechnology (Animal Science). The respondent No. 3 applied under OBC category and submitted a certificate of the Tehsildar dated 15.3.1996 which certifies that respondent No. 3 is wife of Ajai Kumar who belongs to OBC and further that he/she does not belong to creamy layer as mentioned in the Column 3 of the Schedule appended to the Office Memorandum dated 8.9.1993. The written test was held in October, 1994. After the interview the respondent No. 3 was selected and a letter of appointment dated 29th September, 1995 was issued by the petitioner. After appointment of respondent No. 3, the petitioner came to know that she being daughter of Dr. Shanker Lal who is a class I officer is covered under the rule of exclusion (Column 3 of the Schedule appended to the Office Memorandum dated 8.9.1993) and she could not have been selected giving benefit of OBC category. A show-cause notice was issued to which the respondent No. 3 submitted her reply and stated that when she applied and was selected for the post, she was married and her husband who was working as Engineer (Marketing), Rotomac Industries, Private Limited, Kanpur did not come under ‘creamy layer’. The caste certificate given by the Tehsildar is based on her caste and of her husband who had no linkage with her father. She further submitted that as her husband does not hold a class I post and after marriage she is no more dependent on her parents, therefore, she is not included in the category of ‘creamy layer’ under OBC category under Column 3 of the Office Memorandum dated 8.9.1993. 4. She further submitted that as her husband does not hold a class I post and after marriage she is no more dependent on her parents, therefore, she is not included in the category of ‘creamy layer’ under OBC category under Column 3 of the Office Memorandum dated 8.9.1993. 4. Upon consideration of the reply submitted by the respondent No. 3, an order dated 4.10.2006 was passed cancelling the appointment of the respondent No. 3 that she being the daughter of a class I officer is not entitled for the benefit of reservation in service under OBC category in view of Column 3 of the Office Memorandum dated 8.9.1993. The respondent No. 3 filed Original Application No. 1201 of 1996 challenging the order dated 4.10.2006 cancelling her appointment. In the application same stand was taken by the respondent No. 3 The Tribunal allowed the application and quashed the order dated 4.10.2006. 5. Challenging the order passed by the Tribunal, learned counsel for the petitioner submits that the Tribunal has erred in applying the rule of exclusion provided in Column 3 of the Office Memorandum dated 8.9.1993 and further in holding that though a daughter whose parents are class I officers come within the exclusion clause before marriage but after marriage her jural relation with her natural parents comes to an end. And therefore, if she applies under theOBC category for a job after marriage, then she would not come within the exclusion clause even if her husband is a class I Officer. He further submits that as per own case of the respondent No. 3 in her reply submitted to the show-cause notice, her husband was not a class I officer and does not come within the ‘creamy layer’. The proviso to clause-II of the schedule appended to Office Memorandum dated 8.9.1993 which applies to ‘Service Category’ therefore has no application in her case. This apart, in view of the admitted fact that the respondent No. 3 is daughter of class I officer will come within the ‘creamy layer’ and the rule of exclusion would apply. 6. The proviso to clause-II of the schedule appended to Office Memorandum dated 8.9.1993 which applies to ‘Service Category’ therefore has no application in her case. This apart, in view of the admitted fact that the respondent No. 3 is daughter of class I officer will come within the ‘creamy layer’ and the rule of exclusion would apply. 6. He placed reliance on a Division Bench judgment of this Court in Union of India and another v. Rajesh Kumar Yadav and another, 2011 (4) ESC 2340 (All)(DB), wherein observation of the Apex Court in Indra Sawhney and others has been re-quoted as under : “.....the term ‘Creamy Layer’ or the Rule of Exclusion in actual application would imply. When a person has been able to shed off the attributes of social and educational backwardness and has secured employment or has engaged himself in some trade/profession of high status, as categorised by us below, he at that stage is normally no longer in need of reservation for himself. For example, if a person gets appointed as a Class I Officer either on open competition basis or reservation basis, the question of excluding him on the ground that he forms part of the ‘Creamy Layer’ does not at all arise. But since he himself has come into the socially advanced category he will be in a position to provide the means, the equipment and the opportunities which are necessary for the uplift of his offspring from the level of social and educational backwardness. As such, the question of applying the Rule of Exclusion will arise only in the case of his offspring.” 7. The said observations were made by the Apex Court accepting the recommendation of the Expert Committee of the Government which in turn led to the Office Memorandum dated 8.9.1993 which is subject-matter of consideration in the present case also. 8. Learned counsel for respondent No. 3 on the other hand, placed reliance on proviso (b) to clause II A in Column 3 of the Schedule appended to Office Memorandum dated 8.9.1993. The same is quoted below. II. Service Category A. Group A/Class I Officers of All India Central and State Services (Direct Recruits) Provided that the rule of exclusion shall not apply in the following cases: (a) ............................ The same is quoted below. II. Service Category A. Group A/Class I Officers of All India Central and State Services (Direct Recruits) Provided that the rule of exclusion shall not apply in the following cases: (a) ............................ (b) A lady belonging to OBC category has got married to a Class-I officer, and may herself like to apply for a job.” 9. Relying upon the said proviso the learned counsel for the respondent No. 3 submits that the proviso is attached to the main clause i.e. Clause II ‘Services Category’ A. which apply to son(s) and daughter(s) of Group ‘A’ and class I officers (Direct recruits) and therefore is an exception to the main clause. On that basis he submits that even if a lady is daughter of class I officer, as soon as she marries her status changes and with that purpose the proviso ‘b’ was inducted as an exception to Clause II A in Column 3 of the Schedule relating to ‘Service Category’. Therefore, respondent No. 3 cannot be precluded from applying for a job for herself under OBC category after her marriage. 10. Heard learned counsel for the petitioner and perused the record. 11. The legal position regarding reservation of backward class citizens was finally settled in Indra Sawhney v. Union of India and others, 1992 Supp (13) SCC 217. Out of several questions answered by the Nine Judges’ Bench, some of the questions were : (i) Identification of “Backwardness of citizens” (ii) Whether backwardness in Article 16(4) should be both social and educational. (iii) ‘Means-Test’ and ‘Creamy layer’- for the purpose of excluding persons (from Backwardness) who are highly advanced socially as well as economically and educationally. 12. The Nine Judges’ Bench considered the exclusion of ‘Creamy layer’ and directed the Government of India to specify the basis of exclusion-whether on the basis of income, extent of holding or otherwise and held that on such specification, persons falling within the net of exclusionary rule shall cease to be the member of Other Backward Class(covered by the expression ‘backward class of ‘citizens’)for the purpose of Article 16(4). 13. The, answer to the question of ‘Means-Test’ or ‘Creamy layer’ is that the creamy layer can be and must be excluded. 14. 13. The, answer to the question of ‘Means-Test’ or ‘Creamy layer’ is that the creamy layer can be and must be excluded. 14. Again in writ petitions No. (C) No. 930 of 1990 (Indra Sawhney v. Union of India and others) the question relating to identification of ‘Creamy layer’ came up for consideration. One of the issues which was before the Court is as follows : “What is the law declared and what are the directions given in Indra Sawhney (1992 Supp.(3) SCC 217: 1992 SCC (L& S) Supp 1: (1992 22 ATC 385) in regard to “creamy layer” in the context of Articles 14 and 16?” 15. While answering the said issue, the three Judges’ Bench has summarized the discussions and declaration made by Judges (six) constituting Nine Judges’ Bench in 1992 which are quoted below : “(i) Per Jeevan Reddy, J., “the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone. Income or the extent of property-holding of a person is to be taken as a measure of social advancement - and on that basis- the “creamy layer” within a given caste, community or occupational group is to be excluded to arrive at the true backward class. The creamy layer can be, and must be excluded. Creamy layer has to be excluded and “economic criterion” is to be adopted as an indicium or measure of social advancement. The socially advanced persons must be excluded.” (ii) Per Thommen, J., “If some members in a backward class acquire the necessary financial strength to raise themselves, the Constitution does not extend to them the protection of reservation. The creamy layer has to be “weeded out” and excluded, if it has attained a “certain predetermined economic level”. (iii) Per Kuldip Singh, J., “the affluent” section of the backward class. Comparatively “such (sic rich) persons in the backward class-though they may not have acquired a higher level of education- are able to move in the society without being discriminated socially.” (iv) Per Sahai,J., “the individuals among the collectivity or the group who may have achieved a “social status” or “economic affluence”, are disentitled to claim reservation. Comparatively “such (sic rich) persons in the backward class-though they may not have acquired a higher level of education- are able to move in the society without being discriminated socially.” (iv) Per Sahai,J., “the individuals among the collectivity or the group who may have achieved a “social status” or “economic affluence”, are disentitled to claim reservation. Candidates who apply for selection must be made to disclose the annual income of their parents which if it is beyond a level, they cannot be allowed to claim to be part of the backward class. What is to be the limit must be decided by the State. Income apart, provision is to be made that wards of those backward classes of persons who have achieved a particular status in society, be it political or economic or if their parents are in higher services then such individuals must be precluded from availing the benefits of reservation. Exclusion of “creamy layer” achieves a social purpose. Any legislative or executive action to remove such persons individually or collectively cannot be constitutionally invalid.” (v) Per Sawant, J., “Social advancement is to be judged by the “capacity to compete” with forward caste, achieved by the members or sections of the backward classes. Legally, therefore, these persons or sections who reached that level are not entitled any longer to be called as part of the backward class, whatever their original birthmark. Taking out these “forwards” from the “backwards” is “obligatory” as these persons have crossed the Rubicon. On the crucial question as to what is meant by “capacity to compete”. the learned Judge explained that if a person moves from Class IV service to Class III, that is no indication that he has reached such a stage of social advancement but if the person has successfully competed for “higher level posts” or atleast “near those levels”. he has reached such a state.” The three Judges’ Bench further observed that as appears from the judgments of six out of eight Judges, viz Jeevan Reddy (for himself and three others), Sawant and Sahai JJ- (i.e. six learned Judges out of nine) that the persons who have reached a higher level of social advancement and economic status and therefore as a matter of law, such persons are declared not entitled to be treated as backward. They are to be treated as ‘creamy layer’ “without any further enquiry.” 16. They are to be treated as ‘creamy layer’ “without any further enquiry.” 16. Pursuant to Nine Judges’ bench Indra Sawhney (supra) Government of India had appointed an Expert Committee which in turn led to the Office Memorandum dated 8.9.1993 providing that rule of exclusion will apply to children of : (A) Holders of Constitutional posts. (B) Service category (C) Professional category (D) Property owners Service category includes: Children of (a) Parents, Group A/Class I officers of All-India Central Services and State Services (direct recruits) where both or one of the parents are Class I officers, subject to certain conditions; (b) Children of Group B/Class II officers of the Central and State Services (direct recruitment), subject to certain conditions; (c) Children of employees of public sector undertakings, banks, insurance organizations, universities etc. and in comparable posts and positions under private employment; (d) Children of members of armed forces and paramilitary forces. 17. In the Division Bench judgment of this Court in Rajesh Kumar Yadav (supra), relying upon the observations made by the Apex Court in Indra Sawhney it was held that the caste certificate declaring the petitioner whose father became a Class I Officer; as not belonging to creamy layer is contrary to provision of Office Memorandum dated 8.9.1993 and claim for benefit of reservation as OBC candidate was not acceptable and therefore rejected. 18. In view of the law relating to ‘creamy layer’ laid down by the Apex Court and the provisions of the Office Memorandum dated 8.9.1993, we find that the proviso (b) is the proviso to clause II-A, Column 3 of the Office Memo which relates to ‘Service Category’ of Group A/Class I Officers of Indian Central and State services (‘Direct Recruits’). The only interpretation which can be given to the said proviso is that a lady belonging to OBC category, if otherwise, does not belong to ‘creamy layer’, under Clause II-’A’ can apply for a job for herself under OBC category even if she is married to a Class I officer. The only reason which the Court finds for inclusion of this proviso is that ‘merely because the husband of a lady is a Class I Officer, she can not be excluded from the benefit of reservation and does not come under the ‘creamy layer’, if she originally does not belong to the same. 19. The only reason which the Court finds for inclusion of this proviso is that ‘merely because the husband of a lady is a Class I Officer, she can not be excluded from the benefit of reservation and does not come under the ‘creamy layer’, if she originally does not belong to the same. 19. However, the said provision would not be applicable in the case of a lady i.e. female whose parents or parent happen to be class I officer as in that eventuality she would belong to socially advanced class of society and the rule of exclusion shall apply. 20. Considering the entire scheme and the purpose for exclusion of ‘Creamy layer’ from (Backward Class), if interpretation as suggested by the learned counsel for the respondent No. 3 is given to proviso (b) to clause II ‘A’ Column 3 of the Schedule, then it would result in absurdity which could never be intended by the Government while issuing Office Memorandum dated 8.9.1993. 21. It is well established law of interpretation of Statute that no words used in an enactment can be read de hors the context in which it is used. If a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the legislature. In order to arrive at a reasonable interpretation of a word used in a provision, the Court must examine the scheme of the Act and the context in which it has been used. 22. In the case of M. Pentiah v. Veeramallappa Muddala, AIR 1961 SC 1007 , it was held that the Courts will reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used. 23. In the case of C.W.S. (India) Limited v. Commissioner of Income Tax, JT 1994 (3) SC 116, it has been laid down that where a literal interpretation of the language used in an enactment leads to an absurd or unintended result, the language of the statute can be modified to accord with the intention of Parliament and to avoid absurdity. 24. 24. In view of the above discussion the inescapable conclusion is that respondent No. 3 being daughter of a Class I Officer is excluded as per the provisions of Clause II.A.(b) in Column 3 of Schedule appended to the Office Memorandum dated 8.9.1993 as she has received all the amenities of education and opportunities and rose to the status of socially advanced class. Her marriage with a class II officer or class I officer would not change her status in so far as the application of rule of exclusion provided in Column 3 of the Office Memorandum dated 8.9.1993 is concerned. Infact Proviso (b) Clause II.A in Column 3 of the Schedule appended to Office Memorandum dated 8.9.1993 has no application in the facts and circumstances of the present case. 25. Consequently, we set aside the judgment and order dated 26.2.2004 passed by the Tribunal quashing the order dated 4.10.1996 cancelling the appointment of respondent No. 3. The impugned order of the petitioner before the Tribunal dated 4.8.1996 is upheld and affirmed. The writ petition is allowed. ——————