Supreme Court questions quota in promotions for kith and kin of affluent SC/ST employees

A five-judge constitution bench headed by Chief Justice Misra posed the query as to why the 'creamy layer' principle, used to exclude affluent other backward classes (OBCs) people from enjoying the fruits of reservation, cannot be made applicable to deny quota benefits in promotion to those affluent among the Scheduled Castes (SC) and Scheduled Tribes (ST).

"Reservation at the entry level. No problem. Suppose, 'X' by virtue of the reservation becomes the Chief Secretary of a state. Now, will it be logical to treat his or her family members as backward to grant reservation in promotion which would provide accelerated seniority," the bench, which also comprised Justices Kurian Joseph, R F Nariman, S K Kaul and Indu Malhotra, said.   

During the day-long hearing, a battery of lawyers led by Attorney General KK Venugopal, Additional Solicitor General Tushar Mehta, senior advocates Indira Jaising, Shyam Divan, Dinesh Dwivedi and P S Patwalia, vehemently supported quota in promotion for the SC/ST communities and sought that the five-judge bench judgement of 2006 in the M Nagaraj case should be reconsidered by a larger bench.

The 2006 verdict had said that the states are bound to provide quantifiable data on the backwardness of SC/ST communities, the fact about their inadequate representation in government jobs and the overall administrative efficiency before providing quota in promotion to those belonging to these communities. 

Venugopal and other lawyers alleged that the verdict had virtually stopped the promotion of SC and ST employees.

However, senior lawyer and former Law Minister Shanti Bhushan and senior advocate Rajeev Dhavan opposed the quota in promotions saying it violated the right to equality and equal opportunities in public employment, which was also a part of the basic structure of the Constitution.

"Once you are a Class-I officer, you cease to belong from the backward class... Reservation in promotion for IAS officers will be in teeth of the right to equality which is also part of the basic structure of Constitution," Shanti Bhsuhan said, adding that "political parties consider SCs and STs as vote bank".

At the outset, Patwalia, appearing for Tripura and Bihar, said the 2006 verdict needed to be reconsidered.

He referred to the nine-judge bench verdict in the Indira Swahney matter, popularly known as the Mandal case, and said the creamy layer concept was applicable to the OBCs and cannot be made applicable to SC/STs in grant of quota in promotions.

The bench referred to Article 335 of the Constitution and said the government can relax the qualifying marks for SC/ST candidates, but the issues were could there be reservation after a person enters a job and the application of the creamy layer principle for these communities as well.

Senior advocate Nidhesh Gupta, representing Madhya Pradesh, said the Nagraj judgement negated the law laid down in the Mandal judgement with regard to the 'opinion of the state' concerning "adequacy of representation in the services under the state". 

Referring to the Mandal case, he said that Article 16 (4) (which provides power to state to grant quota) "made it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State."

The bench said if there was "adequate representation" of a community in jobs, then the court may question the idea behind granting quota benefits in promotions to SCs and STs.

Gupta also raised the aspect of social backwardness of the SC and ST communities, saying "100 per cent sweepers belong to these communities and this showed that there was 100 per cent backwardness".

Senior advocate Dinesh Dwivedi referred to the constitutional scheme and said that backwardness was "implicit" in them and the fact that these communities were notified as SCs and STs, was ground enough to infer their backwardness and no quantifiable data was required.

The bench said if some members of a community, notified as SC or ST, have come up, then was the court not justified in asking the question to state government. It said there was "no problem" with the grant of quota at the entry level.

Senior advocate Indira Jaising favoured the quota on promotion and questioned the 2006 verdict on various grounds including the fact that the state will have to provide "compelling reasons" in support of grant of quota.

"The Constitution itself is the 'compelling reason' and the court cannot ask for compelling reasons," she said, adding that the creamy lawyer principle had no application in the case of SCs/STs.

"The object of reservation is to ensure representation of SCs and STs in government jobs," she said, adding that these communities were notified as such because of reasons including untouchability and backwardness.

She then referred to the issue of sweepers in the Women's Bar rooms in the apex court and said "100 per cent sweepers are SCs/STs. I did not want to say this. I am sorry. But, this is a fact".

The advancing of arguments would resume on August 29.