In the Supreme Court of India Civil Appellate Jurisdiction Case No. Special leave petition (civil) no. 30621 of 2011 Appellant Jarnail Singh and ors. Respondent Lachhmi Narain Gupta and ors. Date of the Judgment 26th Sept. 2018 Bench Former Chief Justice of India Dipak Misra and Justice Kurian Joseph, Justice RF Nariman, Justice SK Kaul Justice Indu Malhotra
Reservation has always been a contentious issue in Indian polity. After the Poona Pact, Dr. B R Ambedkar gave up the demand of the Dalit community for separate electoral colleges.It was agreed that the castes described by the British as “depressed classes” would be given reservation in employment with joint electorates (in the provincial and central legislatures) for a larger number of seats than envisaged by the Mac Donald award. There was thus, a national compact that the “depressed classes” should be represented in appointments in public services as well as in local bodies, in other words, reservation in public services and local bodies. The said ‘depressed classes’ came to be known as “Scheduled Castes” and “Scheduled Tribes”.
1. A vacation bench of Justice Adarsh Kumar Goel and Justice Ashok Bhushan was hearing an SLP preferred by the Centre against the August-2017 judgment of the Delhi High Court quashing the DoPT Office Memorandum (OM) dated August 13, 1997, which provided for the continuation of reservation in promotions indefinitely.
2. The high court had passed the verdict in the light of the apex court constitution bench judgment in M Nagaraj (2006).
3. On May 17, a bench of Justice Kurian Joseph and Justice Mohan M Shantanagoudar, hearing an SLP against the 2011 judgment of the Punjab & Haryana High Court quashing a similar OM in pursuance of M Nagaraj, had directed “that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merits.”
4. The Constitution bench of the Supreme Court,on 26 September,2018 delivered a judgement authored by Justice Rohinton Nariman, that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes, yet makes the “creamy layer” in either group ineligible for the benefits
1. Whether M. Nagaraj v. Union of India (Nagaraj) required reconsideration?
2. Nagaraj verdict had held that before the Scheduled Caste and Scheduled Tribe candidates can be promoted, the states had to prove by “quantifiable data” that they were indeed “backward”
3. Whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations?
Attorney General KK Venugopal argued (rightly) that the Constitution determined the Scheduled Castes and the Scheduled Tribes to be “backward”, and no further tests could be imposed to verify their “backwardness”. He also contended that the concept of “creamy layer” applied to the Other Backward Classes, not to the Scheduled Castes and the Scheduled Tribes. The Nagarajverdict had added these riders wrongly, Venugopal argued, so the matter needed to be referred to a larger bench.
The Supreme Court accepted his first point but not the second, refusing to refer the Nagaraj judgement to a larger bench of seven judges.
The court set aside the requirement to collect quantifiable data that was stipulated by its 2006 verdict in M. Nagaraj v. Union of India as it ignored the reasoning of a nine-judge bench in Indra Sawhney (1992) that any discussion on creamy layer “has no relevance” in the context of SC/STs.
The court has taken more than a decade to correct an anomaly in the Nagaraj case which brought in a creamy layer filter for promotions for SC/ST employees. This resulted in thousands of employees being denied their due promotions.
The judgment of the Supreme Court in this which confirmed the application of creamy layer to promotions for SC/ST government employees as held in M. Nagaraj vs Union of India, showed the meagre understanding of the nature of caste discrimination in institutions.
While on one hand, the judgment held Articles 16(4A) and 16(4B) to be valid,which allows for reservations in promotions, on the other, it effectively neutralized this benefit by applying the creamy layer restriction. If the current creamy layer ceiling of Rs 8 lakh per annum were to be applied, even ‘Group D’ SC/ST employees would be barred from reservations. Like a deft magician, the court has performed a sleight of hand on reservation in promotions –given it by one hand and taken it away by another hand.