A five-judge Constitution bench of the Supreme Court will examine whether its 12-year-old verdict that had dealt with the issue of ‘creamy layer’ for reservations to SC and ST categories in government job promotions needs to be re-visited by a seven-judge bench. The bench comprising Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra will hear the issue on August 3. The apex court had on July 11 refused to pass any interim order against its 2006 verdict and said that a five-judge bench would first see whether it needs to be examined by a seven-judge bench or not.
The apex court had said it cannot hear the matter only for the purpose of interim relief as a reference has already been made to the Constitution bench. The M Nagaraj verdict of 2006 had held that the ‘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.
The Centre had submitted that the 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. On June 5, in a major relief to the Centre, the apex court had allowed it to go ahead with reservations in promotion for SC/ST employees in accordance with law.
The top court had took into account the Centre’s submissions that the entire process of promotions had come to a “standstill” due to the orders of various high courts and the top court had also ordered “status quo” in a similar matter in 2015. It had said the Centre was not “debarred” from making promotions.
The government had said there were separate verdicts by the high courts of Delhi, Bombay and Punjab and Haryana on the issue of reservation in promotion to SC/ST employees and the apex court had also passed different orders on appeals filed against those judgement.
On November 15 last year, the top court had said a five-judge constitution bench will examine the limited issue of whether the 2006 verdict delivered in M Nagaraj and other versus Union of India was required to be re-looked at or not. The two-judge bench in its reference order had said that clarity was required on the applications in creamy layer in a situation of competing claims within the same races, communities or groups.
It had sought clarification on Articles 16(4), 16(4A) and 16(4B) of the Constitution which dealt with the power of state government to make provisions for reservation of appointments or posts in favour of any backward class of citizens which was not adequately represented in the services under the state.
The Nagaraj verdict had reiterated that the ceiling-limit of 50 per cent, the concept of the 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. It had also said the state was not bound to make reservation for SC/ST in matter of promotions.