July 11, 2018:
On Wednesday, Supreme Court refused to pass any interim order against its 12-year-old verdict that had dealt with the application of the ‘creamy layer’ for reservations to SC and ST categories in government job promotions, saying it will be examined by a 7 Judge Bench.
Apex Court Bench comprising of CJI Dipak Misra and Justice A M Khanwilkar and Justice Chandrachud stated that it cannot hear the matter only for the purpose of interim relief as a reference has already been made to the constitution bench.
Bench stated that,”You see, a reference has already been made for hearing the matter by a larger bench. A seven-judge constitution bench needs to be constituted to consider M Nagaraj verdict which was heard by a five-judge bench”.
The M Nagaraj verdict of 2006 had held that ‘Creamy Layer’ concept cannot be applied to the Scheduled Castes and Scheduled Tribes for promotions in government jobs, like two earlier verdicts of 1992 Indra Sawhney and others versus Union of India (popularly called Mandal Commission verdict) and 2005 E V Chinnaiah versus State of Andhra Pradesh which had dealt with creamy layer in Other Backward Classes category.
Attorney General K K Venugopal, appearing on behalf of Centre submitted that matter required urgent consideration by a seven-judge constitution bench as lakhs of jobs in Railways and the services were stuck due to confusion over various judicial pronouncements.
Senior Advocate Rajeev Dhavan, appearing on behalf of one of the Petitioners, contended that a lot of confusion has occurred due to conflicting judicial pronouncements given by different benches of apex court and high courts.
He said that one of the orders says there would be “status quo” as far as reservation in promotion to SC/ST employees are concerned, while another order by a bench headed by Justice Kurian Joseph in a similar matter held that pendency of a petition before a court shall not stand in the way of the Centre taking steps for the purpose of promotion.
Nagaraj Verdict had reiterated that Ceiling-limit of 50 per cent, concept of Creamy Layer and the compelling reasons like backwardness, inadequacy of representation and overall administrative efficiency were all constitutional requirements, without which the structure of equality of opportunity in Article 16 would collapse.
Verdict stated that State was not bound to make reservation for SC/ST in matter of promotions.