SC paves way for reservation in promotions for SCs and STs

Source: The Hitavada      Date: 27 Sep 2018 08:47:04



THE Supreme Court on Wednesday paved the way for grant of quota for promotions in the Government jobs to SCs and STs, holding that the States were not required to “collect quantifiable data” reflecting the backwardness among these communities. The verdict cleared a major hurdle that was cited by the Central Government in granting reservation in promotion to its employees belonging to the Scheduled Castes (SC) and Scheduled Tribes (ST).

The matter had travelled to a five-judge constitution bench, which declined the demand to refer it to a seven-judge bench to reconsider its 2006 judgement that had put certain conditions for granting quota benefits in job promotions for SC/ST employees.

The apex court clarified that there was no need to revisit its 12-year-old verdict in the M Nagaraj case which had said that the States were bound to provide quantifiable data on the backwardness of SC/ST, the facts about their inadequate representation in Government jobs and the overall administrative efficiency, before providing them quota in promotions. The bench headed by Chief Justice Dipak Misra said the conclusion arrived at in the Nagaraj case that the States have to collect quantifiable data showing backwardness of SCs and STs was “contrary” to the nine-judge bench judgement in the Indra Sawhney verdict of 1992, popularly known as Mandal Commission case.

“Thus, we conclude that the judgment in Nagaraj does not need to be referred to a seven–judge bench. However, the conclusion in Nagaraj that the state has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-judge bench in Indra Sawhney is held to be invalid to this extent,” the bench, also comprising Justices Kurian Joseph, Rohinton F Nariman, S K Kaul and Indu Malhotra, said.

Justice Nariman, who penned the 58-page unanimous verdict, said that SCs and STs were the “most backward or the weakest of the weaker sections of society” and presumed to be backward. The bench, which said that “efficiency of administration” has to be looked at every time promotions are made, said there was no need to revisit the part of judgement in Nagaraj case which applied the “creamy layer test” to SCs and STs.

It said the whole object of reservation was to see that backward classes of citizens move forward so that they may “march hand in hand with other citizens of India on an equal basis”.

“This will not be possible if only the creamy layer within that class, bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were,” it said. “This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 (dealing with SC and ST) of the Constitution of India,” the bench said.

Court also noted that eight of the nine judges in the Indra Sawhney judgement had applied the ‘creamy layer’ principle as a facet of the larger equality principle.
“However, when it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16(1), as unequals within the same class are being treated equally with other members of that class,” it said.
The bench said it did not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342.

It said that when Articles 14 (equality before law) and 16 (equality of opportunity in matters of public employment) were “harmoniously interpreted” along with other Articles 341 and 342, it was clear that Parliament would have the complete freedom to include or exclude persons from the Presidential Lists based on relevant factors.