creamy layer principle in sc st quota for promotion : judgments on reservation in promotion supreme court says, now no more review on creamy layer issue in promotion quota no more listening

creamy layer principle in sc st quota for promotion : judgments on reservation in promotion supreme court says, now no more review on creamy layer issue in promotion quota no more listening

Highlights

  • Supreme Court refuses to hear any more on the issue of reservation in promotion
  • The top court said that it will not consider its own decision again and again
  • The Supreme Court enumerated its earlier decisions and directed the state governments

New Delhi
The Supreme Court said it will not re-hear its decision allowing reservation to Scheduled Castes (SC) and Scheduled Tribes (ST) in promotions as it is for the states to decide how they will implement it. Many states pointed out difficulties in giving reservation to SC/ST in promotion. On this, a three-member bench of the apex court asked the advocate on record, appearing for the state governments, to identify the issues of the states, which are causing obstacles.

Order has been given, it is the job of the state to implement: SC

A bench of Justices L Nageswara Rao, Sanjiv Khanna and BR Gavai said, “We wish to make it clear that we are not going to reopen Nagraj or Jarnail Singh (case) as these matters will be dealt with as per the order laid down by the court.” The idea was to make a decision. Underlining its earlier order, the top court said that it has given a detailed system regarding reservation, it is the work of the state governments to implement them.

The orders of 11 High Courts have been challenged

It should be noted that in the latest case, the Supreme Court said these things during the hearing of petitions against 11 orders of various High Courts. The High Courts, in their orders, had either struck down the laws of the state government ensuring reservation in promotions or declared them valid. It was argued against them that these orders are against the orders of the Supreme Court. The Supreme Court will now hear the matter on October 5. Referring to these earlier orders, the Supreme Court has said not to consider matters related to reservation in promotion anymore.

1992 – Indira Sawhney Case – The creamy layer was removed from the OBC reservation and 50% limit was fixed in the reservation.
2006 – M Nagaraj Case – To justify the limit of reservation in promotion, the condition of collecting quantitative data was made mandatory.
2018 – Jarnail Singh Case- The request for review of the Nagraj case was rejected. The Supreme Court had given a decision not to give the benefit of reservation in promotion to the SC / ST employees of the creamy layer.
2019 – Holy II Judgment – The Supreme Court had relaxed the conditions laid down for reservation in promotion.

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Milestone is Indira Sawhney Judgment
In the year 1991, the Congress government led by PV Narasimha Rao had issued an order giving 10 percent reservation for the general category on economic grounds, which was challenged in the court by Indira Sawhney. In the Indira Sawhney case, a nine-judge bench had held that the number of reserved seats should not exceed 50 per cent of the total available seats. After this historic decision of the Supreme Court, a law was made that reservation cannot be given more than 50 percent. From time to time, whenever Gujjars in Rajasthan, Jats in Haryana, Marathas in Maharashtra, Patels in Gujarat ask for reservation, this decision of the Supreme Court comes in the way. For this, the state governments also take out all the measures. More than 50 percent reservation is still being given in many states of the country.

what was nagraj case
In the 2006 case related to Nagraj, the court had said that backwardness data would be collected. It was also said that the principle of creamy layer would be applicable in case of reservation in promotion. The government will see inadequate representation and administrative efficiency. The Supreme Court had ordered in this case that ‘the state is not bound to ensure reservation in promotion for SC/ST’. However, if a state at its discretion wants to make such a provision, it will have to collect quantifiable data to find out if any section of the society is backward and is not properly represented in government jobs.

Know the order of the Supreme Court in the Jarnail case
In the Jarnail Singh case, a five-judge bench had in 2018 held that the creamy layer would be taken care of while giving reservation in promotions for ST/ST category as well. It had said that the creamy layer of the SC/ST community would not be given the benefit of reservation in promotion. The top court had said, “When the constitutional courts apply the principles of reservation, then the matter of exclusion of the creamy layer from the group receiving reservation on the basis of the principle of equality will be within its jurisdiction.” It is noteworthy that there is a provision to remove the creamy layer only from the Other Backward Classes (OBCs) from the deprived communities who get reservation.

Center appeals to Supreme Court
This is the reason why the central government had last year sought the Supreme Court to reconsider its 2018 order removing the creamy layer from the reservation for Scheduled Castes (SC) and Scheduled Tribes (ST) categories. Attorney General KK Venugopal, appearing for the government in the court on a petition, had said that the creamy layer concept cannot be applied in the reservation of SC/ST categories. The Attorney General urged the Supreme Court to refer the 2018 verdict of a five-judge bench on the matter to a seven-judge bench for reconsideration.

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This argument of the Attorney General was challenged by senior advocate Gopal Sankaranarayanan, saying that the Jarnail Singh Judgment is very clear and the same issue cannot be argued over and over again. “It cannot be an annual event. The 2018 Judgment on the creamy layer concept in AC/AC communities is quite clear. It (case) cannot be reopened. Sankaranarayanan was representing the Samata Andolan Samiti, an organization representing the poor and backward sections of the SC/ST communities in Rajasthan.

Holy I and Holy II Judgments
In the Holy I Judgment, the Supreme Court declared unconstitutional a Karnataka law that provided for consequential seniority along with reservation in promotion. The Supreme Court had held that quantifiable data criteria were made mandatory in the orders passed in both the cases of Nagraj and Jarnail Singh. On this ground the law of the Government of Karnataka was found not to be justified. The Supreme Court had relaxed the condition of the figure showing adequate representation in the Holy II Judgment. He said that the government need not collect data of backwardness before reservation in SC-ST promotion. At the same time, the way was cleared for giving reservation in the promotion of SC and ST in government jobs.

Why did the matter of reservation arise now?
Petitioner’s lawyer Gopal Shankarnarayan says that many states are still not accepting the Nagraj Judgment. On the other hand, Senior Advocate Indira Jaising argued that the Central Government has not made any guidelines under the Nagraj Judgment. For example, under what basis and procedure a state should decide the inadequate representation. There needs to be some benchmark for this. The states made guidelines regarding this but were rejected by the High Court. There is no uniformity in the ruling between the High Court and the Supreme Court.

Know the opinion of the central government
The Attorney General says that the problem of the Central Government is that the High Court has given three interim orders. Of these, it has been said in two that promotion can take place while in the third one has been asked to maintain status quo on promotion. There are 1,400 posts on hold at the secretary level in the Government of India. The question is whether promotion on regular appointments can continue and will it affect the reserved seats.

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