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TMI Blog2018 (9) TMI 2087X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Attorney General to say any more in this behalf. The conclusion in M. NAGARAJ ORS VERSUS UNION OF INDIA ORS. [ 2006 (10) TMI 420 - SUPREME COURT] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in INDRA SAWHNEY ETC. ETC VERSUS UNION OF INDIA AND OTHERS, ETC. [ 1992 (11) TMI 277 - SUPREME COURT] is held to be invalid to this extent. Application disposed off. - Special Leave Petition (Civil) No. 30621 of 2011 With Special Leave Petition (Civil) No.31735 of 2011 And Ors. - - - Dated:- 26-9-2018 - Dipak Misra, CJI, Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul And Indu Malhotra, JJ. Special Leave Petition (Civil) No.35000 of 2011, Special Leave Petition (Civil) No.4831 of 2012, Special Leave Petition (Civil) No.2839 of 2012, Special Leave Petition (Civil) No.5860 of 2012, Special Leave Petition (Civil) No.5859 of 2012, Special Leave Petition (Civil) No.30841 of 2012, Special Leave Petition (Civil) No.8327 of 2014, Special Leave Petition (Civil) No.6915 of 2014, Special Leave Petition (Civil) Nos.16710-16711 of 2014, Special Leave Petition (Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 520 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.35324 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.35577 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.35818 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.36305 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.36377 of 2017, Special Leave Petition (Civil) No.31288 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.38895 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.42413 of 2017, Special Leave Petition (Civil) No. of 2018 Diary No.619 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.969 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.971 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.1042 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.1046 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.1584 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.2677 of 2018, Special Leave Petition (Civil) No. of 2018 Diary No.7243 of 2018, Special Leave Petition (Civil) No.16469 of 2018, Special Leave Petition (Civil) No.18925 of 2018, Special Leave Petition (Civil) No. of 2018 Dia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pallavi Singh, Adv., for M/s. Gorkela Law Office, Mr. Manoj Gorkela, Adv., Mr. Alok Singh, Adv., Mr. Sunil Mallan, Adv., Mr. Vinay Kumar, Adv., for M/s. Gorkela Law Office, Mr. Kumar Parimal, Adv., Mr. Aniruddha P. Mayee, AOR, Mr. R.L. Venjrani, Sr. Adv., Mr. Hitesh Kumar Sharma, Adv., Mr. S.K. Rajora, Adv., Dr. (Mrs.) Vipin Gupta, AOR, Mr. Shreekant N. Terdal, AOR, Ms. Indira Jaising, Sr. Adv., Mr. Pratik R. Bombarde, AOR, Mr. Pradeep S. Wathore, Adv., Ms. Ajita Sharma, Adv., Mr. Jitendra Ashok, Adv., Mr. Abhishek Kumar, Adv., Mr. Rachit Kumar, Adv., Mr. Aakarsh Kamra, Adv., M/s. S.M. Jadhav Co., Mr. Tushar Mehta, ASG, Mr. Nishant Ramakantraw Katneshwarkar, AOR, Dr. Rajiv Dhawan, Sr. Adv., Mr. Abhijat P. Medh, AOR, Dr. M.P. Raju, Adv., Mr. M. Vijaya Bhaskar, AOR, Mr. Sunil Kumar, Adv., Mr. S.P. Singh, Adv., Mr. Randhir Singh, Adv., Mr. Colin Gonsalves, Sr. Adv., Ms. Olivia Bang, Adv., Mr. Satya Mitra, AOR, Mr. Arvind S. Avhad, AOR, Mr. P.K. Jayakrishnan, AOR, Mr. R.S.M. Kalky, Adv., Mr. Ramesh Kumar, Adv., Mr. Ram Kishan, Adv., Dr. Gunratan Sadavarte, Adv., Dr. Jay Sree L. Patil, Adv., Mr. Pankaj Kumar Singh, Adv., Mr. Pawan Kumar Shukla, Adv., Mr. Makrand Pratap Singh, Adv., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, Adv., Mr. Omung Raj Gupta, Adv., Mr. Rahul Sharma, Adv., Mr. Karan Deo Baghel, Adv., Ms. Sansriti Pathak, Adv., Mr. Eklavya Dwivedi, Adv., Mr. Manoj Joshi, Adv., Mr. Dhruv Joshi, Adv., Mr. Gaurav Alhawat, Adv., Mr. Rebbeca Dias, Adv., Mr. K.K.L. Gautam, Adv., Mr. A.K. Suman, Adv., Mr. Gaurav Yadava, Adv., Anushruta Maheshwari, Adv., Mr. Rahul Mohod, Adv., Mr. Sanjeev Malhotra, AOR, Mr. M.K. Dua, AOR, Mr. Gopal Singh, AOR, Ms. Amita Singh Kalkal, AOR, Ms. Christi Jain, AOR, Mr. Arun Bhardwaj, Adv., Mr. Ashish Pandey, Adv., Mr. Prateek Rai, Adv., Mr. Vishwa Pal Singh, AOR, Ms. Priya Sharma, Adv., Mr. Prathvi Raj Chauhan, Adv., Mr. Smarhar Singh, AOR, Ms. Suchitra Atul Chitale, AOR, Mr. Ravindra Keshavrao Adsure, AOR, Mr. Sagar Pahune Patil, Adv., Mr. Anand Landge, Adv., Ms. Rohini Wagh, Adv., Mr. P.S. Teji, Sr. Adv., Mr. M. Vijaya Bhaskar, AOR, Mr. Sunil Kumar, Adv., Mr. Gaya Prasad, Adv., Ms. Navjot Neelam, Adv., Mr. Abhijat P. Medh, AOR, Mr. Nikhilesh Ramachandran, AOR, Mr. Sanjahy Kharde, Adv., Mr. Samrat Shinde, Adv., Mr. Sunil Kumar Verma, AOR, Mr. Avijit Bhattacharjee, AOR, Mr. Nitin Meshram, Adv., Mr. Ranbir Singh Yadav, AOR, Mr. Puran Mal Saini, Adv., Mr. Chandan Ramamurth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. xxx xxx xxx 341. Scheduled Castes.- - (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. xxx xxx xxx 342. Scheduled Tribes.- - (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e test of proportion of Scheduled Castes and Scheduled Tribes to the population in India at all stages of promotion, and for this purpose, the roster that has been referred to in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 can be utilized. Other counsel who argued, apart from the learned Attorney General, have, with certain nuances, reiterated the same arguments. Ms. Indira Jaising, learned senior advocate, appearing on behalf of one of the Petitioners in C.A. No. 11816 of 2016, submitted that Nagaraj (supra) needs to be revisited also on the ground that Article 16(4-A) and 16(4-B) do not flow from Article 16(4), but instead flow from Articles 14 and 16(1) of the Constitution. She further argued that claims of the Scheduled Castes and the Scheduled Tribes are based on a reading of Articles 14, 15, 16, 16(4-A), 16(4-B), and 335 of the Constitution. It was further submitted that a further sub-classification within Scheduled Castes and Scheduled Tribes is impermissible, as has been held in Indira Sawhney (1) (supra) and in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 ( Chinnaiah ). She argued that the decision in Nagaraj (supra) would have the effect of amending the Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not get the benefits of reservation and conversely, those who are undeserving, get the said benefits. According to the learned senior advocate, the creamy layer principle applies to exclude certain individuals from the class and does not deal with group rights at all. This being the case, Articles 341 and 342 are not attracted. Further, Articles 341 and 342 do not concern themselves with reservation at all. They concern themselves only with identification of those who can be called Scheduled Castes and Scheduled Tribes. On the other hand, the creamy layer principle is applied by Courts to exclude certain persons from reservation made from within that class on the touchstone of Articles 14 and 16(1) of the Constitution of India. He argued that even if it be conceded that creamy layer can fall within Articles 341 and 342, yet the Court s power to enforce fundamental rights as part of the basic structure cannot be taken away. Indeed, Nagaraj (supra) was a case pertaining to a constitutional amendment and, therefore, Articles 341 and 342 cannot stand in the way of applying the basic structure test to a constitutional amendment. 5. Shri Rakesh Dwivedi, learned senior advocate, appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: - What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes - for it cannot be denied that Scheduled Castes include quite a few castes. In dealing with the creamy layer concept insofar as it is applicable to backward classes, the last sentence of paragraph 792 also states: 792. (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes). In the summary of the discussion contained in paragraphs 796-797, it is stated, the test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression backward class of citizens . Jeevan Reddy, J. then went on to state that in certain posts, of specialities and super-specialities, provisions for reservation would not be advisable (See paragraph 838). Ultimately, the judgment decided that reservation would apply at the stage of initial entry only and would not apply at the stage of promotion. 8. It is important to note that eight of the nine learned Judges in Indra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 843, 844). This is what the learned Judge declared: there are sections among the backward classes who are highly advanced, socially and educationally and they constitute the forward section of that community. These advanced sections do not belong to the true backward class. They are (para 790) as forward as any other forward class member . If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally ) the connecting thread between them and the remaining class snaps. They would be misfits in the class. (SCC p. 724, para 792). (emphasis supplied) The learned Judge said: (SCC p. 724, para 792) After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. (emphasis supplied) A line has to be drawn, said the learned Judge, between the forward in the backward and the rest of the backward but it is to be ensured that what is given with one hand is not taken away by the other. The basis of exclusion of the creamy layer must not be merely economic, unless economic advancement is so high that it necessarily means social advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 859, sub-para (3)(d)] can be, and must be excluded. Creamy layer has to be excluded and economic criterion is to be adopted as an indicium or measure of social advancement [para 860, sub-para (5)]. The socially advanced persons must be excluded [para 861(b)]. That is how Jeevan Reddy, J. summarised the position. 18. Sawant, J. too accepted (p. 553 of SCC) that at least some individuals and families in the backward classes, - however small in number, - gain sufficient means to develop capacities to compete with others in every field. That is an undeniable fact . (emphasis supplied) Social advancement is to be judged by the capacity to compete with forward castes, achieved by the members or sections of the backward classes. Legally, therefore, these persons or sections who reached that level are not entitled any longer to be called as part of the backward class, whatever their original birthmark. Taking out these forwards from the backwards is obligatory as these persons have crossed the Rubicon (pp. 553-54). On the crucial question as to what is meant by capacity to compete , the learned Judge explained (para 522) that if a person moves from Class IV service to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayer in the backward class is to be treated on a par with the forward classes and is not entitled to benefits of reservation, it is obvious that if the creamy layer is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class. These twin aspects of discrimination are specifically elucidated in the judgment of Sawant, J. where the learned Judge stated as follows: (SCC p. 553, para 520) [T]o continue to confer upon such advanced sections special benefits, would amount to treating equals unequally . Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally . (emphasis supplied) Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4). We s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckward based on their comparative underdevelopment, therefore, the similar classification amongst the class enumerated in the Presidential List of Scheduled Castes is permissible in law. We do not think the principles laid down in Indra Sawhney case (supra) for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments. 39. Legal constitutional policy adumbrated in a statute must answer the test of Article 14 of the Constitution. Classification whether permissible or not must be judged on the touchstone of the object sought to be achieved. If the object of reservation is to take affirmative action in favour of a class which is socially, educationally and economically backward, the State s jurisdiction while exercising its executive or legislative function is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion provides for declaration of certain castes and tribes as Scheduled Castes and Scheduled Tribes in terms of Articles 341 and 342 of the Constitution. The object of the said provisions is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard to the economic and educational backwardness wherefrom they suffer. The President of India alone in terms of Article 341(1) of the Constitution is authorised to issue an appropriate notification therefor. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive. Thus, the Court struck down the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. 10. The judgment in Chinnaiah (supra) has been referred by a three-Judge Bench to a larger Bench by an order dated 20.08.2014. This is because, according to the three-Judge Bench, Chinnaiah (supra) is contrary to Article 338 of the Constitution of India and Indra Sawhney (1) (supra). Since the correctness of Chinnaiah (supra) does not arise before us, we need say no more about this reference which will be decided on its own merits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, backwardness and inadequacy of representation . As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word amendment connotes change. The question is-whether the impugned amendments discard the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4). The Court then concluded as follows: 121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. In this case, Article 15(5) inserted by the Constitution (Ninety-third Amendment) Act, 2005, was under challenge. Balakrishnan, C.J., after referring to various judgments of this Court dealing with reservation, specifically held that the creamy layer principle is inapplicable to Scheduled Castes and Scheduled Tribes as it is merely a principle of identification of the backward class and not applied as a principle of equality (See paragraphs 177 to 186). Pasayat, J., speaking for himself and Thakker, J., stated that the focus in the present case was not on Scheduled Castes and Scheduled Tribes but on Other Backward Classes (See paragraph 293). Bhandari, J., in paragraphs 395 and 633 stated as follows: 395. In Sawhney (1) [1992 Supp (3) SCC 217 : 1992 SCC (L S) Supp 1 : (1992) 22 ATC 385] the entire discussion was confined only to Other Backward Classes. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes. xxx xxx xxx 633. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iah s judgment (supra) in essence held that the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, which it considered, could not further sub-divide Scheduled Castes into four categories, as that would be violative of Article 341(2) of the Constitution of India for the simple reason that it is Parliament alone that can make any change in the Presidential List and not the State Legislatures. That this is the true ratio of the judgment is clear from a reading of the paragraphs that have been set out hereinabove. This being the case, as Chinnaiah (supra) does not in any manner deal with any of the aspects on which the constitutional amendments in Nagaraj s case (supra) were upheld, we are of the view that it was not necessary for Nagaraj (supra) to refer to Chinnaiah (supra) at all. However, it was further contended that apart from this ratio, Chinnaiah (supra) also decided that the sub-classification of Scheduled Castes, created by the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, also violated Article 14 of the Constitution of India. This was stated by Chinnaiah (supra) to be violative of Article 14 as the same would amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Castes or the Scheduled Tribes, these conditions are, in view of the notifications, presumed to be satisfied 15. In fact, Chinnaiah (supra) has referred to the Scheduled Castes as being the most backward among the backward classes (See paragraph 43). This is for the reason that the Presidential List contains only those castes or groups or parts thereof, which have been regarded as untouchables. Similarly, the Presidential List of Scheduled Tribes only refers to those tribes in remote backward areas who are socially extremely backward. Thus, it is clear that when Nagaraj (supra) requires the States to collect quantifiable data on backwardness, insofar as Scheduled Castes and Scheduled Tribes are concerned, this would clearly be contrary to the Indra Sawhney (1) (supra) and would have to be declared to be bad on this ground. However, when it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16(1), as unequals within the same class are being treated equally with other members of that class. The genesis of this principle is to be found in State of Kerala Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310. This case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer division clerks are likely to be drawn from the lowest levels of harijan humanity and promotion prospects being accelerated by withdrawing, for a time, test qualifications for this category may perhaps delve deeper. An equalitarian breakthrough in a hierarchical structure has to use many weapons and Rule 13-AA perhaps is one. The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... add at this juncture that Nagaraj (supra) is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. This judgment has been repeatedly followed and applied by a number of judgments of this Court, namely: a. Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC 454 (two-Judge Bench) (See paragraphs 17 and 18). b. Suraj Bhan Meena Anr. v. State of Rajasthan Ors., (2011) 1 SCC 467 (two-Judge Bench) (See paragraphs 10, 50, and 67). c. U.P. Power Corporation v. Rajesh Kumar Ors., (2012) 7 SCC 1 (two-Judge Bench) (See paragraphs 61, 81(ix), and 86). d. S. Panneer Selvam Ors. v. State of Tamil Nadu Ors., (2015) 10 SCC 292 (two-Judge Bench) (See paragraphs 18, 19, and 36). e. Chairman Managing Director, Central Bank of India Ors. v. Central Bank of India SC/ST Employees Welfare Association Ors., (2015) 12 SCC 308 (two-Judge Bench) (See paragraphs 9 and 26). f. Suresh Chand Gautam v. State of U.P. Ors., (2016) 11 SCC 113 (two-Judge Bench) (See paragraphs 2 and 45). g. B.K. Pavitra Ors. v. Union of India Ors., (2017) 4 SCC 620 (two-Judge Bench) (See paragraphs 17 to 22). Further, Nagaraj (supra) has been app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of validity of Constitutional amendments in the case of M. Nagaraj v. UOI Ors., observed that 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 in promotion. Relying on the judgment of the Supreme Court in M. Nagaraj case, the High Court of Rajasthan and the High Court of Allahabad have struck down the provisions for reservation in promotion in the services of the State of Rajasthan and the State of Uttar Pradesh, respectively. Subsequently, the Supreme Court has upheld the decisions of these High Courts striking down provisions for reservation in respective States. It has been observed that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise. It will be seen that this Bill contains two things that are different from Article 16(4-A) as already enacted. First and foremost, it clarifies that the Scheduled Castes and the Scheduled Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context of local prevailing conditions in public employment. (x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment. 19. We have already seen that, even without the help of the first part of Article 16(4-A) of the 2012 Amendment Bill, the providing of quantifiable data on backwardness when it comes to Scheduled Castes and Scheduled Tribes, has already been held by us to be contrary to the majority in Indra Sawhney (1) (supra). So far as the second part of the substituted Article 16(4-A) contained in the Bill is concerned, we may notice that the proportionality to the population of Scheduled Castes and Scheduled Tribes is not something that occurs in Article 16(4-A) as enacted, which must be contrasted with Article 330. We may only add that Article 46, which is a provision occurring in the Directive Principles of State Policy, has always made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hasten to add that Shri Dwivedi s argument cannot be confused with the concept of creamy layer which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes. 20. The learned Attorney General also requested us to lay down that the proportion of Scheduled Castes and Scheduled Tribes to the population of India should be taken to be the test for determining whether they are adequately represented in promotional posts for the purpose of Article 16(4-A). He complained that Nagaraj (supra) ought to have stated this, but has said nothing on this aspect. According to us, Nagaraj (supra) has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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