“The quantum of reservation for SC and ST employees cannot be same for the first as well as last promotion,” a bench of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra said after attorney general K K Venugopal said M Nagaraj judgment of 2006 had held that putting caveats for providing quota in promotion to SC/ST employees would negate the constitutional mandate for reservation under Article 16(4A).
Justice Nariman said, “You (the governments) cannot have population of SCs and STs as a criteria for quota in promotion at all levels. As you go up, perhaps it should be less. Even if you take class of posts, for third promotion, the quantum should be less. You cannot have uniform quota for all levels of promotion.”
The bench said three points had emerged for consideration — one, quantifiable data to assess backwardness; two, whether creamy layer criteria be applied for quota in promotion; and three, the adequacy of representation of SC/ST employees in various posts or cadre. “We will decide whether we need to refer this to a sevenjudge bench or a clarification of the Nagaraj judgment will suffice,” the bench said.
CJI Misra added, “We need to examine whether the Nagaraj judgment of 2006 introduced the concepts of creamy layer and quantifiable data for establishing backwardness and adequacy of representation of SC/ST in posts for promotions, which are not provided for in the Constitution. In Indra Sawhney judgment, SC had said no quota in promotion and to overcome this, Parliament had enacted Article 16(4A).”
Venugopal said the test of backwardness and creamy layer would apply to other socially and economically backward classes and not to SC/STs, who still suffered class bias and stigma of untouchability.
“Getting a job through reservation has not taken away the imprint of caste stigma. That is why they must also get accelerated promotion in employment through reservation,” he added. The AG said the creamy layer criteria could be inserted only by Parliament and not by courts.