SUPREME COURT OF INDIA
Ashoka Kumar Thakur
Vs.
Union of India & Ors.
W.P.(Civil)No.265 of 2006
(Arijit Pasayat and L.S.Panta,JJ.,)
JUDGMENT
Dr.Arijit Pasayat, J.,
1. In this I.A. prayer has been made to grant interim protection pending final
disposal of the writ petitions.
2. In the writ petitions the policy of 27% reservation for the Other Backward
Classes (in short the 'OBCs') contained in the Central Educational Institutions
(Reservation in Admission) Act, 2006 (in short the 'Act') is the subject matter
of challenge. The primary ground of challenge is that the Union of India has
failed in performing the constitutional and legal duties toward the citizenry
and its resultant effect. Consequentially the Act shall have the effect and
wide ramifications and ultimately it shall have the result in dividing the
country on caste basis. It would lead to chaos, confusion, and anarchy which
would have destructive impact on the peaceful atmosphere in the educational and
other institutions and would seriously affect social and communal harmony. The
constitutional guarantee of equality and equal opportunity shall be seriously
prejudiced. It has been contended that a time has come to replace the
"vote bank" scenario with "talent bank". The statute in
question, it is contended, has lost sight of the social catastrophe it is
likely to unleash. Not only the products would be intellectual pigmies as
compared to normal intellectual sound students presently passing out. It has
been highlighted that on the basis of unfounded and unsupportable data about
the number of OBCs in the country the Act has been enacted. It has been pointed
out that this Court in Indra Sawhney v. Union of India and Ors1. had
recognised the concept of "creamy layer" amongst the advanced OBCs to
be kept out of preferential treatment. The population data of 52% projected by
the Mandal Commission was not actually given the seal of acceptance. In any
event, this Court in its judgment dated 16.11.1992 directed the Government to constitute
a permanent body by 15th March, 1993 for examining and recommending for
inclusion or exclusion in the lists of backward classes of citizens. The
National Commission for Backward Classes Act, 1993 (in short the 'Backward
Classes Act') defines 'backward classes" to mean such backward classes of
citizens other than the Scheduled Castes and Scheduled Tribes as may be
specified by the Central Government in the lists. In terms of Section 2(c) of
the Act "lists" mean lists prepared by the Government of India from
time to time for the purpose of making provision for the reservation of
appointments or posts in favour of backward classes of citizens which in the
opinion of the Government are not adequately represented in the services under
the Government of India and any legal or other authority within the territory
of India or under the control of the Government of India. Though there is a
specific provision in Section 11 of the Backward Classes Act for a periodic
revision of the lists, same has not been done, and on the contrary additions
are being made. The rational of 27% having been arrived at on the mythical
figure that the OBCs are 52% in the country and even the ratio of 27%
reservation for the students belonging to other backward classes in the educational
institutions is to be funded and controlled by the Central Government. The same
is to be enforced from.05.2007. It is highlighted that after 1931 census there
has never been any caste-wise enumeration or tabulation which in essence
corrodes the credibility of the claim of 52% population of other backward
classes.
3. It is pointed out that in terms of Section 2(g), 3(iii), Sections 5(1)(2)
and 6 of the Act, 27% seats are being reserved for other backward classes out
of only permitted strength. The expression "Other Backward Classes"
means the class or classes of citizens who are socially or educationally
backward and are so determined by the Central Government. There has never been
any determination on any acceptable basis. The parameters provided in the Backward
Classes Act have not been kept in view. Without supportable data the
introduction of a Statute which would have the effect of disturbing the harmony
in the society was avoidable. Though it has been provided that increase in the
number of seats can be done in a staggered manner, that is really of no
consequence. The stand that number of seats available for the general
categories remains unaffected is really not a solution as in essence unequals
are treated as equals. The very concept of equality enshrined in Article 14 of
the Constitution of India, 1950 (in short the 'Constitution') is
directly affected.
4. Reference is made to the figures provided by the National Samples Survey of
India and the National Health and Family Survey (Government of India's own
Departments) which clearly establish the hollowness of the claim about OBCs
being 52% of the population. The source for the enactment of the Act was the
93rd amendment to the Constitution which has come into force w.e.f. 20.1.2006
by insertion of Clause (5) in Article 15 of the Constitution.
5. Prayer has been made to declare certain provisions in the Act to be
unconstitutional. The effect of the judgments in M. Nagaraj and Ors. v.
Union of India and Ors2. and Nair
Service Society v. State of Kerala3
(Writ Petition (Civil) No. 598 of 2000 etc.decided on 23.02.2007) has not been
considered. It has been emphasized that what may have been relevant eight
decades back cannot hold good in the present scenario. There has to be indepth
analysis to find out the number of socially and educationally backward class of
citizens. The concept of Backward class citizens is dealt with in para 786 of
Indra Sawhney's case (supra). It is pointed out that in the immediately
succeeding paragraph i.e. Paragraph 787 the position has been clarified. In
that paragraph reference has also been made at page 720 that certain classes
which may not qualify for Article 15(4) may qualify for Article 16(4).
Reference is made to Janki Prasad Parimoo v. State of J & K4 to
contend that it is social and educational backwardness of a class which is
material for the purposes of Articles 16(4). It does not have determinative
relevance for the purposes of Articles 15(4) and 15(5). Further reference is
also made to the concluding para 859 in Indra Sawhney's case (supra) where it
has been said in category (3)(c) that it is not correct to say that backward
class of citizens contemplated in Article 16(4) is the same as the socially and
educationally backward classes referred to in Article 15(4). It is much wider.
Therefore, it is submitted that the concept of socially and educationally
backward classes in Article 15(4) stand on a different footing from Article
16(4) and consequentially Article 15(5) is different from Article 16(4).
6. It has been highlighted that in any event the concept of creamy layer which
has been completely kept out of consideration in the Statute has great
relevance and effect. The criteria of Article 16(4) and the lists under the
Backward Classes Act can at the most provide a rough and ready rule for the
purpose of Articles 15(4) and 15(5) but that does not in any way take care of
the requirements of Section 11 of the Backward Classes Act. There is no report
subsequent to 3.2.2005 by the National Commission for the Backward Classes. Therefore,
it is highlighted that the whole exercise has been done in great hurry without
any justifiable reason. Since there is no data base after 1931 census, what the
Government could have done is to find out a definite data base and then take
such action as is permissible in law. Even otherwise, the Office Memorandum
bearing No.36012/31/90-Est.(SCT) dated 13.8.1990 on which great emphasis has
been laid by learned Additional Solicitor General for the respondent- Union of
India, does not take note of another O.M.No.36012/22/93-Estt.(SCT) dated
8.9.1993 which expressly states as follows:
"(d) The OBCs for the purpose of the aforesaid reservation would comprise,
in the first phase, the castes and communities which are common to both the
lists in the report of the Mandal Commission and the State Governments' Lists.
A list of such castes and communities is being issued separately by the
Ministry of Welfare."
7. It has been pointed out that the Act itself specifically requires a
determination of socially and educationally backward classes to be made by the
Central Government, as is clear from a bare reading of Section 2(g). That has
not been done for the purposes of the Act and by referring to the lists meant
for cases covered by Article 16(4) the requirements have not been met, there
cannot be any basis for contending that the "creamy layer concept"
attached to Article 16(4) has no relevance for Articles 15(4) and 15(5). It is
pointed out that the intention of the Parliament does not appear to be that any
existing list under Article 16(4) should be treated as the foundation for
Section 2(g) of the Act. The determination should be made "in futuro"
and not by adopting any past determination by the National Commission for the
purposes of Article 15(5). The "special provision of law" under
Article 15(5) is the Act which provides that OBCs must be so determined for the
purposes of the Act by the Central Government (underlined for emphasis). There
has been no separate determination.
8. In essence, it is submitted that the baseless figure of 27% cannot be
pressed into service for introducing a Statute which has such wide
ramifications. No methodology has been laid down for determining the socially
and educationally backward classes because castes alone should not be made the
basis for identification even though there appears to be some casual
observations in Indra Sawhney's case (supra) as contended by learned Additional
Solicitor General that castes can be synonyms with class. That is not the
correct approach. It was only stated that castes may be the starting point for
identifying the backward class, but it can not definitely be the sole basis.
9. The figure of 27% it is emphasized is an imaginary figure with no rational.
The non exclusion of "creamy layer" has also affected the validity of
the Statute.
10. In addition to these aspects highlighted by Mr. F.S. Nariman, Senior
Advocate, Mr. P.P. Rao, Senior Advocate, Mr. M.L. Lahoti, Advocate, Mr. Sushil
Kr. Jain, Advocate, Mr. V. Tankha, Senior Advocate, Mr. Ashoka Kr. Thakur and
Dr. Mittal, who appear in person, have more or less highlighted to similar
effect.
11. Mr. P.P. Rao, Senior Advocate, with reference to certain observations in
Indra Sawhney's case (supra) has submitted that inclusion of castes in the
lists of backward classes cannot be mechanic and cannot be done without
adequate relevant data.
12. The following reports have also been referred to highlight as to how
figures arrived at by the Union are erroneous.
"(a) The National Sample Survey Organization survey of 1999-2000 which
shows that the present educational level is directly proportionate to his/her
economic condition. (pp. 14-15 para 7.21, 7.22 and 7.23)
(b) Section 11 of the National Commission for Backward Classes Act, 1993 which
says "The Central Government may at any time, and shall, at the expiration
of ten years from the coming into force of this Act and every succeeding period
of ten years thereafter, undertake revision of the lists with a view to
excluding from such lists those classes who have ceased to be backward classes
or for including in such lists new backward classes.
(c) Standing Committee on Social Justice and Empowerment Chaired by Sumitra
Mahajan 2005-2006 (pp 18-22 - Copy of the Report is Annexure P-lI in Vol.II at
pp.142-217).
(d) 186th Report of the Parliamentary Standing Committee of Human Resources
Development submitted to the Parliament on 1-12-2006 (pp. 22-23 paras 8.8 to
8.13). The Report is Annexure P-Ill in Vol.II at pp.218-227).
(e) Annual Report of National Commission for Backward Classes dt. 3-2-2005.
(Para 8.14 at pp 25-26). The Report is Annexure P-IV in Vol.II at pp.
228-317.
(f) Report of the Oversight Committee constituted under the Orders of the Prime
Minister on 27-5-2006 (pp. 29-30 para 8.19 to 8.21). The Report is Annexure P-V
in Vol.II at pp 318-353."
13. It is pointed out that Office Memoranda of 1990 and 1991 referred to in
Indra Sawhney's case (supra) cannot hold the field forever. It is pointed out
that if that continues to be so, Section 11 of the Backward Classes Act would
be rendered nugatory. The revision of the lists was called for after expiration
of the period of 10 years. The non-revision renders the acceptability of the
figures doubtful and basisless.
14. In Mandal Commission's Report it was inter-alia observed as follows:
"On the basis of the Commission's Report - popularly known as Mandal
Commission's Report -(for short 'the Report'), two Office Memoranda - one dated
August 13, 1990 and the other amended one dated September 25, 1991 were issued
by the Government of India. We are reproducing those Memoranda hereunder for
proper understanding and appreciation of the significance of these two OMs and
the distinctions appearing between them"No. 36012/31/90-Estt. (SCT)
Government of India Ministry of Personnel, Public Grievances & Pensions (Deptt. of Personnel & Training) OFFICE MEMORANDUMNew Delhi, the 13th August, 1990
Subject: Recommendation of the Second Backward Classes Commission (Mandal Report) - Reservation for Socially and Educationally Backward Classes in Services under the Government of India.
In a multiple undulating society like ours, early achievement of the objective
of social justice as enshrined in the Constitution is a must. The second Backward
Classes Commission called the Mandal Commission was established by the then
Government with this purpose in view, which submitted its report to the
Government of India on 31.12. 1980
.
2. Government have carefully considered the report and the recommendations of
the Commission in the present context responding the benefits to be extended to
the socially and educationally backward classes as opined by the Commission and
are of the clear view that at the outset certain weightage has to be provided to
such classes in the services of the Union and their Public Undertakings.
Accordingly orders are issued as follows:
(i) 27 per cent of the vacancies in civil posts and services under the
Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct
recruitment. Detailed instructions relating to the procedure to be followed for
enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open
competition on the same standards prescribed for the general candidates shall
not be adjusted against the reservation quota of 27 per cent.
(iv) The SEBC would comprise in the first phase the castes and communities
which are common to both, the list in the report of the Mandal Commission and
the State Governments' lists. A list of such castes/communities is being issued
separately.
(v) The aforesaid reservation shall take effect from 7.8.1990. However, this
will not apply to vacancies where the recruitment process has already been
initiated prior to the issue of these orders.
Similar instructions in respect of public sector undertakings and financial
institutions including public sector banks will be issued by the Department of
Public Enterprises and Ministry of Finance respectively.
Sd/.
(Smt Krishna Singh)
Joint Secretary to the Govt. of India"
AMENDED MEMORANDUM:
"No. 36012/31/90-Estt. (SCT) Government of India Ministry of Personnel,
Public Grievances & Pensions (Deptt.of Personnel & Training) OFFICE
MEMORANDUM
New Delhi, the 25th September 1991 Subject: Recommendation of the Second
Backward Classes Commission (Mandal Report) - Reservation for Socially and
Educationally Backward Classes in Services under the Government of India.
The undersigned is directed to invite the attention to O.M. of ever number
dated the 13th August 1990, on the above sections of the SEBCs to receive the
benefits of reservation on a preferential basis and to provide reservation for
other economically backward sections of the people not covered by any of the
existing schemes of reservation, Government have decided to amend the said
Memorandum with immediate effect as follows:
2. (i) Within the 27 per cent of the vacancies in civil posts and services
under the Government of India reserved for SEBCs, preference shall be given to
candidates belonging to the poorer sections of the SEBCs. In case sufficient
number of such candidates are not available, unfilled vacancies shall be filled
by the other SEBC candidates.
(ii) 10 per cent of the vacancies in civil posts and services under the
Government of India shall be reserved for other economically backward sections
of the people who are not covered by any of the existing schemes of
reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.
3. The O.M. of even number dated the 13th August 1990, shall be deemed to have
been amended to the extent specified above.
Sd/
(A.K. Harit)
Dy. Secretary to the Govt. of India"
15. The expression deployed in both the OMs, "Socially and Educationally
Backward Classes" is on the strength of the Report of the Commission,
though no such expression is used in Article 16(4) whereunder the reservation
or appointments or posts in favour of any backward class of citizens is to be
made. This expression is used as an explanatory one to the words 'backward
class' occurring in Article 16(4). Articles 16(4) and 340(1) were embodied in
the Constitution even at the initial stage; but Article 15(4) containing the
same expression as in Article 340(1) was subsequently added by the Constitution
(First Amendment) Act of 1951 to override the decision of this Court in State
of Madras v. Smt Champakam Dorairajan  1951 SCR 525
16. According to Mr. M.L. Lahoti, the Act specifically overlooks the mandate of
Article 340 of the Constitution. According to him also the specific directions
given by this Court in Indra Sawhney's case (supra) have been dis- regarded.
Specific reference in this context is made to Section 11 of the Backward
Classes Act. It is submitted that Article 340 provides that the condition of
socially and educationally backward classes is to be investigated imperatively.
Reference is also made to K.C. Vasanth Kumar and Anr. v. State of Karnataka
 to submit that the policy of reservation for employment and education
should be necessarily reviewed. It was noted in that case that a time has come
to review the criterion for identifying socially and educationally backward
classes ignoring the caste label. Identification is an imperative requirement
and cannot be by-passed on any ipsi-dixi referring to out-dated data based on
1931 census. The object of advancement of socially and educationally backward
classes undisputedly brings in the concept of creamy layer. Certain
institutions are basically super specialty institutions e.g. All India
Institute of Medical Science (AIIMS). If the character of an institution of
super specialty of national importance is permitted to be affected in the
manner sought to be done it would be counted productive. That would affect
quality of education.
17. About the Mandal Commission's report, it has been pointed out by Dr. Mittal
who appears in person that survey conducted selected 0.15 of the total villages
population and 7% of the district blocks. There is nothing to suggest as to on
what basis the particular village or particular district was selected. The
Commission itself distributed two groups (a) intermediate OBC and (b) depressed
OBC, which were equi-distributed. It has been emphasized that the Mandal
Commission while arriving at the figure of 52% population of OBC had added 8.6%
population of other non Hindu communities. Thus, non Hindu communities formed
17% of the total OBC population. The management of social backwardness, it is
submitted, has to be dynamic which means that the various measures to be
adopted as a remedy have to be time bound and reviewable.
18. In response, Mr. Gopal Subramanium, learned ASG appearing for the Union has
submitted that all the issues that are being raised have been appropriately
dealt with in Indra Sawhney's case (supra) and long earlier in Minor P.
Rajendra v. State of Madras and Ors. Â . It is submitted that reservation
whether in employment or in education is not violative of the basic structure
or equality code. Various provisions in the Constitution acknowledge that
reservation is an integral part of the principle of equality where inequality
exists. There is nothing wrong or unconstitutional in specifying in terms of
units of castes, those who have been identified as "Socially and
Educationally Backward Classes" on the basis of criteria of social and
educational backwardness. Reservation is not anti merit. In the absence of
caste data after 1931, there was no alternative but to project the population
proportion of social and educational backward classes and other backward
classes from the next best source i.e. latest available census of 1931. The
identification and listing of such classes by Mandal Commission has nothing to
do with the census of 1931 but was based on multiple approach in the
contemporary context only and not in the context of 1931.
19. Determination or classification as to which class belongs to social and
educational backward class or other backward class as made by the Government of
India is valid and the Backward Classes Commission has a statutory function of
examining as to which class included in the list is not really backward.
Reservation policy is not dis-integrative and is not against the unity and
integrity of the nation. On the contrary, according to him, reservation policy
is a means of integrating the society disintegrated over the centuries by the
age old caste system. It is submitted that the lists of OBCs identified on the
basis of social and educational backwardness have been determined. The Ministry
of Welfare (now named as Ministry of Social Justice & Empowerment) is in
charge of the subject. There are State-wise lists. Once issued, these lists
continue to be in force and are binding for any or all purposes, subject to
modifications, deletions, additions from time to time in accordance with the
Backward Classes Act and in the light of decision in Indra Sawhney's case
(supra).
20. The lists of Scheduled Castes and Scheduled Tribes categories covered by
Clause (h) and (i) of Section 2 have already been notified in the past, and are
subject to changes in accordance with Articles 341 and 342 of the Constitution.
The fact that there has been centuries long historical oppression in relation
to Scheduled Castes and Scheduled Tribes and Socially and Educationally
Backward Classes and Other Backward Classes, has been recognized by this Court
in Indra Sawhney's case (supra).
21. Reference is also made to the decision of this Court in State of A.P. v.
U.S.V. Balram5 which was referred to in
Indra Sawhney's case (supra).
22. The contentions, as noted above, have not only focused on legal issues but
also on factors of great social relevance. The issues need deeper consideration
in the background of their legal and social importance. The only question is
whether it would be desirable to stay process of implementation of the Act and,
if so, to what extent.
23. There is no dispute and in fact it was fairly accepted by learned
Additional Solicitor General that there is need for periodical identification
of the backward citizens and for this purpose the need for survey of entire
population on the basis of an acceptable mechanism. What may have been relevant
in 1931 census may have some relevance but cannot be the determinative factor.
As was observed by this Court in Nagaraj's case (supra) backwardness has to be
based on objective factors whereas inadequacy has to factually exist.
24. Even in Indra Sawhney (II) Â at Para 9 it was held as follows:
"9. Inclusion of castes in the list of backward classes cannot be
mechanical and cannot be done without adequate relevant data. Nor can it be
done for extraneous reasons. Care should be taken that the forward castes do
not get included in the backward castes' list. In Indra Sawhney' Pandian, J.
observed (SCC p. 408, para 174) that before a conclusion is drawn that a caste
is backward or is inadequately represented in the services,
"The existence of circumstances relevant to the formation of opinions is a
sine qua non. If the opinion suffers from the vice of non-application of mind
or formulation of collateral grounds or beyond the scope of statute, or
irrelevant and extraneous material, then that opinion is challengeable".
Sawant, J. (see para 539 of SCC) too pointed out the need for proper
application of mind to the facts and circumstances, the field, the post and the
extent of existing representation and the need to balance representation. On
behalf of himself and three others, Jeevan Reddy, J. pointed out (para 798 SCC)
that opinion in regard to backwardness and inadequate representation must be
based on relevant material. The scope of judicial scrutiny even with regard to
matters relating to subjective satisfaction are governed by the principles
stated in Barium Chemicals Ltd. v. Company Law Board6
Likewise, periodic examination of a backward class could lead to its exclusion
if it ceases to be socially backward or if it is adequately represented in the
services. Once backward, always backward is not acceptable. In any case, the
"creamy layer" has no place in the reservation system."
25. The concept of creamy layer cannot prima facie be considered to be
irrelevant. It has also to be noted that nowhere else in the world do castes,
classes or communities queue up for the sake of gaining backward status.
Nowhere else in the world is there competition to assert backwardness and then to
claim we are more backward than you. This truth was recognized as unhappy and
disturbing situation and such situation was noted by this Court as a stark
reality in Indra Sawhney's case (supra).
26. According to some jurists, equality as a fundamental substantive norm is a
characteristic feature of many democratic Constitutions. In societies that are
diverse or in societies where certain groups of people were subjected to
discrimination in the past subscription to the norm of equality necessitates an
element of affirmative action. That may be the underlying object of Article 15.
In India the "Varna" system of the early Vedic period was distorted
and became a rigid and hierarchical caste system which resulted in lower castes
being socially oppressed and economically exploited. Whatever be the truth in
this plea, in the late 19th and early 20th century social reform movements
started. An eminent jurist has noted that the equality provisions in the Indian
Constitution were intended to be a pro-active means of social engineering and
it is against this backdrop that the jurisprudence of reservations has
developed in the Indian context. By contrast, the scenario in United States and
South Africa can be looked at. The Constitution of US is older in point of time
than that of Indian or South African Constitution. When it was initially
adopted there was no mention of equality. The institution of slavery was
legally sanctioned. It was only after the Civil War that the Thirteenth and
fourteenth amendments to the Constitution were enacted. The institution of
slavery was abolished and "equal protection clause" came to be
enacted.
27. The "separate but equal doctrine" was sanctified by the decision
of US Supreme Court in Plessy v. Ferguson7 But
the formal equality was established in US after the decision in Brown v.
Board of Education8 and
the Civil Rights Act, 1964. It is to be noted that in both the United States
and South Africa, the past discrimination was along racial lines. This Court
has in several instances focused on the question as to whether Articles 15(4)
and 16(4) are a facet of equality or a derogation from it. Equality of
opportunity is not simply a matter of legal equality. Its existence depends not
merely on the absence of disabilities but on the presence of abilities. Where,
therefore, there is inequality in fact, legal equality always tends to
accentuate it. (See Dr. Pradeep Jain and Ors. v. Union of India and
Ors9.
28. In Indra Sawhney's case (supra) it appears that underlying principles which
have been identified are the identification of class, which was held to be
affirmative by using castes as a proxy. The State was Constitutionally
empowered to enact affirmative action measures for backward classes.
29. Differentiation or classifications for special preference must not be
unduly unfair for the persons left out of the favoured groups.
30. There is another question which has been emphasized by learned counsel for
the petitioners is that the policy of reservation cannot be and should not be intended
to be permanent or perpetuate backwardness.
31. In a very significant judgment in Grutter v. Bollinger 10 the
US Supreme Court upheld the law school admission programme because it found
"compelling state interest in diversity" in higher education.
Referring to an earlier judgment in Regents of University of California v.
Allan Bakke11 the US Supreme Court by majority held that the school's interest
in obtaining a "critical mass" of minority students was indeed a
"tailored use". Majority opinion was to the effect that race
conscious admissions policies must be limited in time and that with the efflux
of time the use of racial preferences would no longer be necessary.
32. According to South African Constitution the right in the Bill of Rights may
be limited so long as the limitation is "justifiable in an open and
democratic society based on human dignity, equality and freedom". The
justifiability of the limitation must be assessed by evaluating the nature of
the right, the nature and extent of the limitation, the importance of the
purpose of the limitation, the relation between the limitation and the purpose
and less restrictive means to achieve the purpose.
33. It remains to be examined as to whether a different form of preferential
treatment other than quotas could be employed as at some stage an affirmative
action concept can be focused in this direction also. Though it is submitted
that the number of seats available for the general category is not affected,
but that is really no answer to the broader issue.
34. If there is possibility of increase in seats in the absence of reservation
it could have gone to the general category. If the stand of learned Additional
Solicitor General is accepted that the exercise was not intended to be
undertaken immediately and the increase would be staggered over a period of 3
years it could not be explained as to why a firm data base could not be evolved
first, so that the exercise could be undertaken thereafter. By increasing the
number of seats for the purpose of reservation unequals are treated as equals.
The stand of learned Additional Solicitor General is that imperfection may be
there in the data but so far as the existing modalities are concerned there is
no difficulty in adopting the same.
35. Another important factor which needs to be noted is the concept of 'Creamy
layer".
In M. Nagaraj's case (supra) it was inter-alia held as follows:
"123. However, in this case, as stated above, the main issue concerns the
"extent of reservation". In this regard the State concerned will have
to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency
before making provisions for reservation. As stated above, the impugned
provision is an enabling provision. The State is not bound to make reservation
for SCs/STs in matters of promotions. However, if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable data
showing backwardness of the class and inadequacy of representation of that
class in public employment in addition to compliance with Article 335. It is
made clear that even if the State has compelling reasons, as stated above, the
State will have to see that its reservation provision does not lead to
excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy
layer or extend the reservation indefinitely."
36. In Nair Service Society's case (supra) it was noted as follows:
"36. Recently, a Constitution Bench of this Court in M. Nagaraj and
Ors. v. Union of India and Ors12.
has reaffirmed the importance of the creamy layer principle in the scheme of
equality under the Constitution. This Court held that the creamy layer
principle was on of the important limits on State power under the Equality
Clause enshrined under Articles 14 and 16 and any violation of dilution of the
same would render the State action invalid. More precisely this Court held:
"As stated above, the boundaries of the width of the power, namely, the
ceiling-limit of 5O% (the numerical benchmark), the principle of creamy layer,
the compelling reasons, namely, backwardness, inadequacy of representation and
the overall administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider the law as enacted by
various States providing for reservation if challenged. At that time we have to
see whether limitations on the exercise of power are violated. The State is
free to exercise its discretion of providing for reservation subject to
limitation, namely, that there must exist compelling reasons of backwardness,
inadequacy of representation in a class of post(s) keeping in mind the overall
administrative efficiency. It is made clear that even if the State has reasons
to make reservation, as stated above, if the impugned law violates any of the
above substantive limits on the width of the power the same would be liable to
be set aside".
37. This Court reiterated the limit on State power imposed by the creamy layer rule and the invalidity of any State action in violation of the same by concluding as follows:
"We reiterate that the ceiling-limit of 50%, the concept of creamy layer
and the compelling reasons, namely, backwardness, inadequacy of representation
and overall administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in Article 16 would
collapse. However, in this case, as stated, the main issue concerns the
"extent of reservation". In this regard the concerned State will have
to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency
before making provision for reservation. As stated above, the impugned
provision is an enabling provision. The State is not bound to make reservation
for SC/ST in matter of promotions. However if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable data
showing backwardness of the class and inadequacy of representation of that
class in public employment in addition to compliance of Article 335. It is made
clear that even if the State has compelling reasons, as stated above, the State
will have to see that its reservation provision does not lead to excessiveness
so as to breach the ceiling-limit of 50% or obliterate the creamy layer or
extend the reservation indefinitely".
38. This Court rationalized the creamy layer rule as a necessary bargain
between the competing ends of caste based reservations and the principle of
secularism. The Court opined:
"In Indra Sawhney this Court has, therefore, accepted caste as determinant
of backwardness and yet it has struck a balance with the principle of
secularism which is the basic feature of the Constitution by bringing in the
concept of creamy layer".
This Court, thus, has categorically laid down the law that determination of
creamy layer is a part of the constitutional scheme."
39. It, therefore, needs no reiteration that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It is a part of constitutional scheme. Therefore these cases have to be examined in detail as to whether the stand of Union of India that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation. That is more so because the lists relatable to Article 16(4) form the foundational base for Article 15(5).
40. In the background of what has been explained above, it would be desirable
to keep in hold the operation of the Act so far as it relates to Section 6
thereof for the OBCs category only. We make it clear that we are not staying
operation of the Statute, particularly, Section 6 so far as the Scheduled
Castes and Scheduled Tribes candidates are concerned. It would be permissible
for the respondent- Union of India to initiate or continue process, if any, for
determining on a broad based foundation "Other Backward Classes"
notwithstanding pendency of the cases before this Court and without prejudice
to the issues involved.
41. The writ petitions are listed in the 3rd week of August, 2007 for final
hearing. I.A. is accordingly disposed of.
Judgment Referred.
1(1992 Supp. (3) SCC 217
2(2006) 8 SCC 0212
3(1973) 1 SCC 0420
4(1985) Supp SCC 0714
5 (1972 (1) SCC 0660
6AIR 1967 SC 0295
7(163 US 537)
8(1984) 3 SCC 0654