Elephant killed in Kerala: What punishment may be given?

Reservation in Promotion: Revisiting M. Nagraj and Indra sawhney

With the insertion of Article 16(4-A), the 77th constitutional amendment in 1995. A completely new debate has been authored whether the person once gets the benefit of reservation again entitled for it? 

The said Article is reproduced here as follows :

Article 16 (4A) : Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

The rationale behind the reservation under Article 16 (Equality of opportunity in matters of public employment) was that a certain group of individuals were seen as downgraded people by the upper strata of the society, so by introducing reservation they would able to get the better jobs and will stand on the parity with others on social standing. 

In Indira Sawhney vs. Union of India, (1993) honourable supreme court has made two significant observation, primarily the concept of creamy layer was introduced and secondly that no reservation be granted in a matter of promotion. 

Here concept of creamy layer needs to be understand that once the person attained the social status as not to be socially and educationally backwards he is not entitled to the reservation, so the fact need to be clear that creamy layer is not based on the economic criterion but as to the upliftment of the individual socially and educationally. for e.g. If a person becomes an IAS officer by getting the benefit of the reservation his descendants not entitled for the reservation benefit again, not due to his economic soundness but due to the reason that now he does not remain educationally and socially backwards.    

The fruitful result that appeared was that once the downgraded person gets the benefit of reservation, and reach the level of parity with others in social status his descendants would not be entitled to the benefit of reservation. 

In 1995 Article 16 (4-A) was introduced which make it possible for the state to make legislation for the reservation in promotion for scheduled tribes and scheduled castes. This amendment was introduced to nullify the Judgement of the honourable supreme court in Indira Sawhney. The provision was challenged before the apex court in M Nagraj Vs. Union of India (2006) as being violative of the basic structure theory. But by applying the "width test" and "identity test" apex court held the amendment constitutionally valid, so far as regard to the identity test, court has examined that whether the amendment changes the identity of the constitution the answer is in negative and with respect to the width test as the court did not find obliteration of any of the constitutional limitation as it is merely discretionary right of the state when there is inadequate representation of the SC and ST communities in office under the state to provide them reservation in promotion. Here in Nagraj Judgement apart from the holding constitutional validity of the 77th amendment apex court also made it mandatory for the state to collect the quantifiable data of Scheduled Caste and Scheduled Tribes and their representation in the government services. 

With the recent verdict in Jarnail Singh & Ors. Vs. Lachmi Narain Gupta & Ors. (2018) the apex court held that the view in Nagraj case as to collect the quantifiable data on the SC and ST community is violative of Article 341 and 342 of the constitution, which provides that once the presidential order declare certain communities as SC or ST, the amendments in such order can only be made by parliament but here one important thing needs to clarify that, only data as to SC and ST communities are not required but data as to their representation in the services under the state is still mandatory (Paragraph 17). In this judgement, the Honourable Supreme court has also coined the idea of the creamy layer for the SC and ST communities (Paragraph 16).

So by referring to above-mentioned judgements, the position stands today as follows :

Whether Person belongs to the OBC (other backward classes) be entitled to reservation in government jobs?  

Yes, but subject to the condition that neither of his parents falls in creamy layer category.

Whether the person belongs to OBC is entitled to the benefit of reservation in promotion? 

The answer is No.

Whether Person belongs to SC and ST Community entitled for benefit of reservation in government jobs? 

The answer is affirmative in all circumstances reason that no provision as to creamy layer has been still introduced for such communities. (Jarnail Singh judgement paved the way for the introduction of creamy layer in SC and ST communities now the ball is in the court of the government to introduce so).

Whether the person belongs to SC and ST Community is entitled to the benefit of reservation in promotion? 

The answer is affirmative, after the submission of data as to their representation by the state in the court. 

Whether a person can claim the reservation in the promotion as a matter of right? 

No, as Article 16 (4-A) cast a right on the state to make the reservation policy in promotion looking to the inadequate representations.