Reservation In Promotion & The Creamy Layer Test

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As a responsible citizen, we seek two certainties from any decision on public policy by a constitution bench of the Supreme Court. First, it must ensure that the underlying principles are consistent with the Constitution of India. Second, that such a decision must end governance dysfunctionalities. But unfortunately, the court has achieved neither of the objective in its recent decision in Jarnail Singh v. Lachhmi Narain Gupta, wherein it was held that the government need not collect quantifiable data to demonstrate backwardness of public employees belonging to the Scheduled Castes and the Scheduled Tribes (SC/STs) to provide reservations for them in promotions.

The main issue here was of whether the ‘creamy layer’ among SC/STs, should be barred from obtaining promotions through reservations. The court set aside, the requirement to collect quantifiable data that was stipulated in 2006 judgement in M. Nagaraj v. Union of India as it set aside the reasoning of a nine-judge bench in Indra Sawhney, 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 the anomaly in the Nagaraj v. Union of India case which brought in a creamy layer filter for promotions, for SC/ST employees. This resulted in lakhs of employees being denied their due promotions.

Can we consider the matter to be settled, that the creamy layer is not an issue with regard to job reservations for SC/STs? Not so. A two-judge bench of the higher court is considering a public interest litigation (PIL), filed by the Samta Andolan Samiti who seeks the removal of creamy layer among the SC/STs in job reservations, which is a matter settled by a nine-judge Constitution Bench long back then and also a matter that has just been settled by a five-judge Constitution Bench.

In the judgement of Jarnail Singh, the court cites an ‘admonition’ to itself by a Constitution Bench in the Keshav Mills case in 1965, “It must be the constant endeavour and concern of this court to introduce and maintain an element of certainty and continuity in the interpretation of the law in the country.” The court followed its own admonition ahead in breach, insofar as it concerns litigation related to reservation.

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