New Delhi: The Supreme Court on Thursday considered examining the feasibility of graded reduction in quota in promotion and whether creamy layer elimination could give the most backward SCs/STs better opportunities for social advancement. During the mulling, the Top Court choose to not to disturb entry-level reservation for SCs and STs.

“The quantum of reservation for SC and ST employees cannot be same for the first as well as last promotion,” a bench of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra said after attorney general K K Venugopal said M Nagaraj judgment of 2006 had held that putting caveats for providing quota in promotion to SC/ST employees would negate the constitutional mandate for reservation under Article 16(4A).

Justice Nariman said, “You (the governments) cannot have population of SCs and STs as a criterion for quota in promotion at all levels. As you go up, perhaps it should be less. Even if you take class of posts, for third promotion, the quantum should be less, you cannot have uniform quota for all levels of promotion.”

The bench as of said that three points can be considered -one, quantifiable data to take an assessment of backwardness; two, whether creamy layer criteria be applied for quota in promotion: and three, the adequacy of representation of SC/ST employees in various posts or cadre. “We will decide whether we need to refer this to a seven judge bench or a clarification of the Nagaraj judgement will suffice, “the bench said.

CJI Misra added, “We need to examine whether the Nagaraj judgement of 2006 introduced the concepts of creamy layer and quantifiable data for establishing backwardness and adequacy of representation of SC/ST in posts for promotions, which are not provided for in the Constitution. In Indra Sawhney judgement, SC had said no quota in promotion and to overcome this, Parliament had enacted Article 16(4A).”

Venugopal said that the backwardness test and creamy layer would apply to other socially and economically backward classes and not to SC/STs, who still are under class bias and stigma of untouchability.

“Getting a job through reservation has not taken away the imprint of caste stigma. That is why they must also get accelerated promotion in employment through reservation,” he added. The AG also said that the creamy layer criteria could be inserted only by Parliament and not by courts.

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