Click here to know more about the judgment on Reservation in Promotion.
What is the issue?
The Supreme Court's recent ruling, approving creamy layer concept to SC/ST promotions, has some concerns in terms of equality and career growth.
What is the change made?
- The 2006 verdict on Nagaraj vs Union of India brought in a creamy layer filter for promotions for SC/ST employees.
- Also, the state had to collect 'quantifiable data on backwardness' of the SC/ST class if it wished to provide reservation in promotions.
- Correcting only the second anomaly, the court has now held that the government need not collect quantifiable data to demonstrate backwardness of SC/STs.
- But when it comes to promotion of SC/ST employees, the court held that the creamy layer concept does apply.
- So now, only in direct recruitment of the SC/STs, the creamy layer concept does not apply.
- However, the state governments have the discretion to invoke Articles 16 (4A) and 16 (4B).
- This is to provide for reservations in promotions for Scheduled Castes and Scheduled Tribes with consequential seniority.
- "Consequential seniority" refers to promotions made purely on reservation basis despite another person waiting for promotion being actually senior to him/her.
What are the concerns?
- Against Precedence - It has been clearly stated in Indra Sawhney (1992) case, that any discussion on creamy layer “has no relevance” in the context of SC/STs.
- Representation - Going by the creamy layer ceiling of Rs 8 lakh per annum, even “Group D” functionaries will come under the definition of creamy layer.
- But notably, the SC/STs lack representation mainly at the Group A level which do not have direct recruitment provisions.
- Promotions are the way through which members of SC/ST communities make it to this level.
- So the consequence of the judgement will be that promotions will stop even at the Group D and Group C levels.
- Protection - The SC/STs are given job reservations not because they are poor but because they are excluded.
- The Constitution made the Scheduled Castes and Scheduled Tribes as a separate category of subjects to protect them from caste aggression.
- It was also to help them gain the strength they need to withstand it and to grow autonomously.
- The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure.
- However, the creamy layer among SC/ST employees helps fulfil the second part of Article 335 that requires maintaining the “efficiency of administration”.
- So the recent judgement largely undoes the affirmative action of ensuring equality of opportunity.
- Right to opt out - The court also failed to address this, as at present, an SC/ST candidate does not have the right to reject reservations.
- It is also a punishable offence to withhold one’s caste status while seeking government employment.
- But allowing SC/ST candidates to compete in the general category would help thousands to leave the space for the less privileged among them.
- Also, by competing as non-reserved candidates, the well-qualified SC/ST group would corner a substantial number of open posts.
- So theoretically, SC/STs would end up garnering more posts than at present.
Source: The Hindu, Scroll
