The Hindu : Front Page : Exclude creamy layer among SCs, STs: court

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Friday, Oct 20, 2006
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Exclude creamy layer among SCs, STs: court

J. Venkatesan

Supreme Court upholds promotions based on reservations, says quotas should not exceed 50 per cent

New Delhi: A five-judge Constitution Bench of the Supreme Court on Thursday held that the "creamy layer" among the Scheduled Castes and the Scheduled Tribes must be excluded from the purview of reservation in public employment and promotions. It held that the total reservation for the SCs and STs and Other Backward Classes must not exceed 50 per cent.

The Bench comprising Chief Justice Y.K. Sabharwal, Justice K.G. Balakrishnan, Justice S.H. Kapadia, Justice C.K. Thakker and Justice P.K. Balasubramanyan was upholding the validity of the 77th, 81st, 82nd and 85th Constitution Amendments on reservation to the SCs and the STs in promotion in government employment by introducing Articles 16 (4A) and 16 (4B).

The Bench, however, said that since Article 16 (4A) was only an enabling provision, "the State is not bound to make reservation for the SCs and the STs in matter of promotions. However, if they wish to exercise their discretion and make such [a] provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335 [claims of the SCs and the STs to services and posts]."

The Bench said: "it is made clear that even if the State has compelling reasons, the State will have to see that its reservation provision [for recruitment] does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely."

The 77th Amendment relates to providing reservation to the SCs and the STs in promotion. The 81st Amendment permits the State to treat separately the backlog vacancy for the reserved categories and not count them for the purpose of applying the 50 per ceiling of backlog vacancies both at the entry level and promotion to be filled in a year. The 82nd Amendment permits the State to relax the qualifying marks for the SCs and the STs in any examination. The 85th Amendment provides for giving them consequential seniority in promotion.

Though the Bench upheld the amendments, it said: "We reiterate that the ceiling of 50 per cent, a concept of creamy layer and the compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."

Compelling reasons

The Bench said the State concerned would have to show in each case the existence of the compelling reasons before making provision for reservation.

Writing the unanimous judgment for the Bench, Justice Kapadia referred to two types of equality, "namely, formal equality which is the essence of Rule of Law and egalitarian equality."

In order to maintain the formal equality between the Backward Classes on the one hand and the general categories on the other, the Bench held that the quantitative limit/numerical benchmark of 50 per cent shall be the binding rule.

Similarly, "in order to maintain the structure of equality within the BCs, that is, between the OBCs on the one hand and the SCs and the STs on the other, the concept of creamy layer which is a qualitative exclusion has to be retained as a constitutional requirement. The concept of creamy layer is based on the means test to strike a balance with the secular notion."

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