Analyzing the 'Creamy Layer' among the STs and SCs when applying for Reservations in Promotions

Reservations has always been a contentious issue in India. This case is famously known as “Reservation in Promotion Case” as it reviewed the judgment of a previous case dealing with the reservation for the SCs and STs in promotion in the government jobs and public services. The case analyzed the application of the ‘creamy layer’ among the STs and SCs when applying for reservations in promotions. It is said that has liberated from his/her backwardness due to his/her growth economically.

A two- judge bench was hearing a Special Leave Petition between the 2017 judgment of the Delhi High Court and Centre quashing the DOT Office Memo, brought about the continuation of the existing reservation inclusively through advancements. The Delhi High Court’s judgment was passed in the light of the M. Nagraj case. It had held that it is not mandatory for the State to make reservations for the SC/ST with regard to promotions. Further, a two- judge bench hearing a Special Leave Petition against the judgment of the Punjab and Haryana High Court, 2011 quashing a similar Office Memo in pursuance of the M. Nagraj case had directed that the pendency of any Special Leave Petition will not disrupt the general flow of the Union of India to ‘open to open’ from ‘held to saved’ had been coordinated by the judges while hearing Special Leave Petition against the judgment on M. Nagraj case. Justice R. Nariman on the judgment conveyed that the State is not required to gather quantifiable information on the backwardness of the ST/SCs in the advanced booking which would still make the ‘creamy layer’ ineligible for the benefits.

The issues in this case were whether the case of M. Nagraj vs Association of India required a re- examination, the demonstration to prove the ST/SCs as ‘backward classes’ and lastly, whether the ‘creamy layer’ among the ST/SCs is to be barred from claiming the benefits of reservations in promotions.

The Supreme Court denied to review the M. Nagraj case with a larger bench of seven judges but decided to review it in the present case itself. The Counsel of the Petitioner, K.K Venugopal contended that the Indian Constitution has already given ST/SCs the status of ‘backward classes’. He also argued that the ST/SCs were excluded from the ‘creamy layer’ and that it was applicable only to the Other Backward Classes. He contended that a clear distinction of these classes from the OBCs was laid down in the Constitution of India and hence, there is absolutely no room for further tests. On the other hand, the Court read the concept of the ‘creamy layer’ as a part of the equality principle laid down in Article 14, 15 and 16. With respect to the equality, there was an argument that it included the true nature of a class to be backward was to exclude the socially and economically advanced people from the class of backward. Further, it was said that it was imperative to exclude the ‘creamy layer’ to ensure that the truly backward within the class are not deprived of the reservations and that the creamy layer does not corner all the benefits. Lastly, it was contended that if the creamy layer is not excluded, then it will be seen as violative of principles of equality.

The Court concluded that the judgment of the M. Nagraj case does not require to be re- examined by a larger bench. Also, it said that the provision where the State has to collect quantifiable information proving backwardness of SC/STs is in contradiction with the Indra Sawhney case and thus, it will be invalid. It further said that there was no relevance given to the concept of ‘creamy layer’ in the abovementioned case. Further, the Supreme Court confirmed the application of creamy layer to promotions for ST/SCs as held in the M. Nagraj case and said that this judgment resulted in thousands of employees being denied their due promotions. Previously, the principle of ‘creamy layer’ was applicable only on OBCs but post this case, it would be applicable on ST/SCs too. It was held in this case that the exclusion of the creamy layer is a matter of equality. It said that if there is no application of the creamy layer, there would be a violation of the right to equality. Thus, to safeguard the right to equality, the exclusion of the creamy layer principle is a must.

The concept of the ‘creamy layer is to identify the forward amongst the backward classes. This judgment of the Supreme Court in this regard is symmetrical as it sees the need to include the SCs and the STs under the purview of the creamy layer.

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