1.INTRODUCTION-

A verdict on Jarnail Singh vs. Lachhmi Narain Gupta was delivered by The Supreme Court on 26^th September. This case is also known as the “Reservation in Promotion Case”. A five-judge bench consisting of Former Chief Justice of India Dipak Mishra, Justice Kurian Joseph, Justice RF Nariman, Justice SK Kaul and Justice Indu Malhotra, reviewed a previous judgement on reservation for the Scheduled Castes and Scheduled Tribes about the promotion in Government jobs and public services. This outlook has an economic touchstone due to the ‘ creamy layer’ depending upon the presumption of any person has overcome from their backwardness which leads to advancements in their social lives. This touchstone is often presumed as caste discrimination.

2.BACKGROUND- 

In 2006, the Court delivered its judgement in M. Nagaraj v. Union of India. In it, the Court validated Parliament’s decision to extend reservations for SC/STs to include promotions( reservation in promotion). However, the grant of reservation became difficult for the Central and State governments due to the conditions that were laid down by the Court.

• There were three prior controlling conditions in Nagaraj judgement which were a must to grant ST/SC a promotion reservation.

1. Firstly, the backwardness of the class must be shown by the State.
2. Secondly, the inadequate representation in cases of position and services must be shown, which will ensure the reservation in promotion.
3. Thirdly, an interest of the administration must be shown for the reservation.

• The validation of the following constitutional amendments was made in The Constitutional Bench in Nagaraj by the Parliament

1. 77^th Amendment Act, 1995 had the insertion of Article 16(4A)
2. 81^st Amendment Act, 2000 had the inclusion of Article 16(4B)
3. 82^nd Amendment Act, 2000 has a proviso inclusion to Article 335
4. 85^th Amendment Act, 2001 which under Article 16(4B) included “consequential seniority” for the Sc/STs.

• These amendments were made by the Parliament to invalidate the Court’s judgement in the Indra Sawhney case. The nine-judge bench in the case ruled that promotion does not apply on the reservations in appointments that are granted by Article 16(4) to the State.

• The State is enabled to make any law it deems fit concerning the reservation in promotion for ST/SC by Article 16(4A).  Advancement of the reserved unfilled promotion posts for ST/SC can be continued to the subsequent year, also the capped 50% quota by Indra Sawhney if remain unfilled will not be carried forward in the upcoming year by Article 16(4B). 

• “The maintenance of efficiency” must be balanced with the reservations, as per Article 335. In the 2001 amendment, it was clarified that this Article will not interfere with the State relaxing evaluation standards, in the matters of promotions

• The Constitutional bench observed that the bench in the Nagaraj case had failed to refer to the EV Chinnaiad case.

3.FACTS-

Justice Adarsh Kumar Goel and Justice Ashok Bhushan were hearing SLP(Special Leave Petition) between the 2017 judgement of the Delhi High Court and the Centre, brought about the continuation of reservation inconclusively through advancements. In the light of the judgement passed in the M. Nagaraj case, the High Court Judgement had been passed. 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 Justice Mohan m Shantanagoudar and Justice Kurian Joseph while hearing SLP against the judgement on M. Nagaraj. Justice Rohinton Nariman on the judgement on 26 September 2018 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” advantages ineligible in either bunch.

4.ISSUES- 

Does re-examination of the case of M. Nagaraj v. Association of India require?

Demonstration and quantifiable information concerning the ST/SCs as to they are the backward class.

Whether the “creamy layer” among the ST/SC is to be banned in advancements through reservations?

5.ARGUMENTS – 

The Supreme Court did not review the Nagaraj case with a larger bench of seven- judges in the Nagaraj Case but by five judges in the present case of Jarnail Singh. Attorney General KK Venugopal contended that the Indian Constitution had mentioned already that the Schedules tribes and the scheduled castes were backwards in nature, they are excluded economically and socially.

6.JUDGEMENT-

Firstly, no reconsideration of The Nagaraj Case of The Supreme Court is required by a 7-judge bench. However, the Nagaraj judgement was modified regarding ‘further backwardness’. The Supreme Court held in the Nagaraj case that if the State deems fit to grant reservations concerning promotions, the State must gather quantifiable data to support the current backwardness of the SC/ST. But as far as the Indra Sawney case is concerned, it requires no quantifiable data as a prerequisite for the grant of promotion in case of reservations. On a further modification of the judgement, the criterion on backwardness has added the principle of “creamy layer” to apply on ST/SCs also. Previously, the creamy layer was exclusive to the Other Backward Classes(OBCs), in the matters of reservation. The exclusion of the creamy layer is a matter of equality, as held by the Court. There will be a violation of the right to equality if the application of the creamy layer fails to apply. Firstly, failing to apply this will treat the equal classes differently like the Forward among Backward Classes (ST/SC) and the general Classes. Secondly, it treats the unequal in the same way, as the forward among backward classes and the backward classes. Thus, to safeguard the right to equality, the exclusion of the creamy layer principle is a must. Justice Nariman observed “ the whole object of reservation is to see that backward classes of citizens move forward so that they march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”

7.ANALYSIS –

The creamy layer of advancements in the promotions was affirmed with the reservation of the Scheduled Tribes and the Scheduled Castes in the case of M. Nagaraj v. Union of India, which indicates small comprehension of the idea of establishment of the standing separation. Articles 16(4A) and 16(4B) is made fundamental which is accountable for the advancement in reservations. On the other hand, it adequately sabotaged it by applying a creamy layer limitation. If the present creamy layer roof of Rs. 8 lakh per annum is to be applied, the ST/SC workers would be banned from the purview of reservations. The Court flipped on the advancements on the reservation and parted with it in one hand and took it away with the other.

8.CONCLUSION –

The concept of the creamy layer is to find out the forward among the backward people. The decision of the Supreme Court in this regard is symmetrical as it sees the need to include the SCs and STs under the purview of the creamy layer. 

Those people who have come around in the economic aspects as well as social aspects and educational aspect and had made themselves capable of making their living does not require anymore advancement in the area of the reservation. India does not have a well-reputed history of class-based discrimination. All the backward classes like- The Scheduled Castes, The Scheduled Tribes, the untouchables were ill-treated and in places of work and education, were denied opportunities. Reservation was the only way out to make these backward classes come forward and make on their own. The advancement in reservation became more of a representative right than a welfare measure. But providing reservations didn’t not solve any problem, reserved class people never got promotion to a higher rank. Then, the Judiciary took this major step and put up promotion as a part of the reservation to safeguard the interests of the lesser privileged class. Thus, only at the entry-level there is violation of equality to a certain extent and not at the stage of promotion.

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