Caste-based reservations, India (legal position)
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The apex court had said that clarity was required on the application of creamy layer principle in a situation of competing claims within the same races, communities, groups or parts of SC/ST communities notied by the President under Articles 341 and 342 of the Constitution. | The apex court had said that clarity was required on the application of creamy layer principle in a situation of competing claims within the same races, communities, groups or parts of SC/ST communities notied by the President under Articles 341 and 342 of the Constitution. | ||
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| − | + | [https://epaper.indiatimes.com/article-share?article=02_08_2024_001_027_cap_TOI Dhananjay Mahapatra, August 2, 2024: ''The Times of India''] | |
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| − | + | New Delhi : In a landmark decision, Supreme Court permitted states to sub-categorise castes within the Scheduled Castes (SC) based on socio-economic backwardness and degree of under-representation in govt jobs to ensure that the larger pie of 15% SC quota goes to backwards among them. It also asked govts to devise suitable criteria to bar the ‘creamy layer’ among SCs and STs from availing reservation. | |
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By this 6:1 majority ruling, a bench of Chief Justice D Y Chandrachud and Justices B R Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and S C Sharma overruled the 2004 judgment of a five-judge bench in EV Chinnaiah case which had said SCs were a homogeneous group and could not be sub-categorised. Justice Trivedi dissented and said the Chinnaiah judgment was constitutionally valid. | |
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To minimise politics and executive play over extension of the ‘quota within quota’ concept to Scheduled Castes, the court clarified that sub-classification of castes within SCs cannot be based on govt’s whims or political considerations.
It firmly said sub-classification of the most backward among the SC community must be based on empirical data, both quantifiable and demonstrable, regarding their backwardness. | ||
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| + | ''' Limit reservation to first generation that avails it & benefits from it: Justice Mithal ''' | ||
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| + | The logic behind the court’s suggestion for keeping the ‘creamy layer’ out is that children of civil servants and others from among the SCs who have moved up the socio-economic ladder and received good education are not deserving of quotas. At present, creamy layer exclusion policy is applicable only to other backward classes (OBCs). | ||
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The CJI authored a 140-page judgment for himself and Justice Misra. Justices Nath, Mithal and Sharma, through separate opinions, agreed with the opinions of the CJI and Justice Gavai. Both the CJI and Justice Gavai agreed with each other, thus making six of the seven judges concur on the constitutional permissibility of sub-classification of SCs. | ||
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It was Justice Gavai, the lone Dalit judge on the bench, who held that those among SC/ST communities who have got top positions in civil services and risen high in socio-economic strata must get excluded from the reservation scheme for scheduled castes, who were socially discriminated for centuries. | ||
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Justice Mithal took the creamy layer exclusion principle to a different level. “Reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of reservation and has achieved higher status, the benefit of reservation would not be logically available to the second generation,” he said. | ||
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In his 281-page opinion, Justice Gavai said, “The state must evolve a policy for identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution.” | ||
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Cautioning states that subcategorisation of SCs ought to be based on empirical data, CJI Chandrachud said, “Where the action is challenged (before the HC or the SC), the state will have to justify the basis of its action. The basis of the sub-classification and the model which has been followed will have to be justified on the basis of empirical data gathered by the state.”
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| + | He further said, “It cannot merely act on its whims or as a matter of political expediency. The decision of the state is amenable to judicial review... the state must provide justification and rationale for its determination. No state action can be manifestly arbitrary. It must be based on intelligible differentia which underlie the subclassification. Basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved.” | ||
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Giving an example, the CJI said if a state decides to provide a different percentage of reservation to ‘dhobi’ and ‘barber’ castes, “it must prove that these two castes suffer from differing levels of social backwardness. It is not merely sufficient for the state to base the classification on the difference in the traditional occupation of the two castes”. | ||
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Justice Nath, who agreed with the CJI, said, “I am also in agreement with the opinion of Justice Gavai that ‘creamy layer’ principle is also applicable to SCs and STs and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to OBCs.” | ||
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Justice Sharma also agreed with the CJI and Justice Gavai. | ||
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| + | ===Win for Madiga activist after 30 yrs=== | ||
| + | Madiga Reservation Porata Samithi founder Manda Krishna Madiga, 59, has been wearing black and white for 30 years to drive home his fight for sub-categorisation of SCs, for the Madigas in particular. Backed by PM Modi last year, Madiga is happy with the verdict and far from done. “There are many issues to stand up for,” he said. | ||
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Revision as of 14:59, 12 August 2024
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Part A
The guiding principles
I: The intentions of the founding fathers
The Bihar government [in 2016] decided to provide 50% reservation in subordi nate judiciary -21% to extremely backward classes, 16% to scheduled castes, 12% to OBCs and 1% to STs. There would be horizontal reservation of 35% for women and 1% for differently abled persons in all categories.
By introducing reservation in judiciary after consulting the Patna high court and Bihar Public Service Commission, the Nitish Kumar government has removed the basic objections of the Supreme Court, which on March 14, 2000 had quashed Bihar Reservation of Vacancies in Posts and Services (for SCs, STs and OBCs) Act, 1991[State of Bihar Vs Bal Mukund Sah]. The 1991 law had mandated reservation in judicial officers jobs up to 14% for SCs, 10% for STs, 12% for extremely backward classes, 8% for OBCs, 3% for economically backward women and 3% for economically backward.
The Constituent Assembly in 1949 had discussions on reservations for backward classes in government jobs. Many members expressed apprehension about misuse of the term `backward' without it being defined in the Constitution itself.
H N Kunzru had said: “whether any class is backward or not should not be left to the law courts to decide. It is our duty to define the term.“ T T Krishnamachary had said: `It does not apply to a backward caste... It says class. It is a class which is based on grounds of economic status or on grounds of literacy or on ground of birth?“ Parties have forgotten class and replaced the word with caste over the decades.
B R Ambedkar, as chairman of the drafting committee, had said: “We have to safeguard two things, namely , the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the state, then, I am sure they will agree that unless you use some such qualifying phrase as `backward' the exception made in favour of reservation will ultimately eat up the rule altogether.Nothing of the rule will remain.“
The Constituent Assembly rejected the proposal to reserve constituencies for minority community. But, it provided for reservation of seats for the SCs and STs in the legislature for 10 years. After the expiry of a decade, this provision gets renewed for another 10 years to perpetuate reservation through politics. Probably this is the reason why we see there is a race among affluent communities to get branded as backward. They have spilled on to the roads in Haryana and Gujarat demanding backward status to get reservation in government jobs and admission to state-run educational institutions.
The Constituent Assembly did not envisage this as a fall out of Article 16(4) that carved out an exception to the fundamental right to equal opportunity . The exception has now been perpetuated by the political class.
The report of the first Backward Class Commission headed by Kaka Kalelkar on March 30, 1955 had talked of reservation to socially and economically backward classes on the basis of caste hierarchy and their representation in government and industrial jobs.Immediately after submitting the report, Kalelkar had written to the President requesting its rejection saying reservation and other re medies recommended on the basis of caste would not be in the interest of the society and country .
Mandal commission report of December 31, 1980 had evolved 11 rough and ready indicators or criteria for determining backwardness under three major heads -social, economic and educational.The V P Singh government notified 27% reservation to backward classes (other than SCs and STs) in government jobs in September 25, 1991.
1968- 2020 February, the guidelines in brief
Political expediency often prevents politicians from accepting Supreme Court’s rulings on constitutional provisions relating to caste and creed — be it the 1985 judgment in Shah Bano case giving Muslim women their due after divorce or the recent verdict reiterating rulings since 1968 on non-fundamental character of reservation under Article 16, which guaranteed the fundamental right of equal opportunity in public employment.
In a reaction that is over 50 years late, Union minister Ram Vilas Paswan has proposed insertion of all reservation laws in the ninth schedule of the Constitution to armourplate them against judicial scrutiny. It will be a futile exercise. For, a nine-judge SC bench in I R Coelho judgment [2007 (2) SCC 1] had ruled that laws inserted in the ninth schedule did not enjoy immunity from judicial scrutiny if challenged on the ground of violating the basic structure of the Constitution.
The political class, especially those in power, desires politically expedient rulings from the SC. Recently, former finance minister and lawyer P Chidambaram reportedly told JNU students that if the SC upheld the Citizenship (Amendment) Act, then there should be a nationwide agitation. If a man possessing such legal knowledge could undermine the supremacy of law declared by the SC, then one can sympathise with Paswan for reacting the way he did to the SC’s February 7 ruling reiterating settled characteristics of constitutional provisions on reservation.
During a charged debate in the Constituent Assembly on October 24, 1949, on who should enjoy supremacy — legislature, executive or judiciary — BR Ambedkar had said, “I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the state.
“Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the legislature without any kind of compulsory obligation laid down in the Constitution. Similarly, if the executive is honest in working the Constitution, it must act in accordance with judicial decisions given by Supreme Court.”
In the Constituent Assembly, Ambedkar had also thrown light on birth of reservation in India while defending his proposal to provide quota in public employment to SCs and STs only for 10 years, that is till 1960. He had said, “Special reservation for Mussalmans started in 1892, so to say, the beginning was made then. Therefore, Muslims practically enjoyed these privileges for more or less 60 years. Christians got this privilege under the Constitution of 1920 and they have enjoyed it for 28 years.
“Scheduled Castes got this only in the Constitution of 1935. Commencement of this benefit of special reservation practically began in 1937 when the Act came into operation. Unfortunately for them, they had the benefit of this only for two years, for from 1939 practically up to present moment, or up to 1946, the Constitution was suspended and the SCs were not in a position to enjoy the benefits of the privileges which were given to them in the 1935 Act.”
Ambedkar had rejected popular suggestions to amend the proposed constitutional provision to allow Parliament to extend the period if, at the end of 10 years, it thought such an extension was necessary. “If at the end of the 10 years, the Scheduled Castes find that their position has not improved or that they want further extension of this period, it will not be beyond their capacity or their intelligence to invent new ways of getting same protection which they are promised here,” he had said. Parliament has since been unanimously voting for extension of reservation every 10 years for another decade.
Paswan was a 21-year-old budding champion of Dalits when a fivejudge SC bench in C A Rajendran vs Union Of India [1968 AIR 507] ruled, “Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the government to make reservation for Scheduled Castes and Scheduled Tribes, either at initial stage of recruitment or at stage of promotion.
“In other words, Article 16(4) is an enabling provision and confers a discretionary power on the state to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the state.” In 1999, a 53-year-old Paswan was communications minister in the Vajpayee government when a five-judge SC bench in Ajit Singh vs State of Punjab [1999 (7) SCC 209] ruled, “In view of overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the state to consider providing reservation if the circumstances mentioned in those articles so warranted.”
A two-judge SC bench on February 7 in Mukesh Kumar vs State of Uttarakhand recounted the rulings that have been the law of the land since 1968.
Reservation can't destroy equality
If ‘general candidates’ more meritorious than ‘reserved:’ don’t eliminate them
The Kerala high court has declared as unconstitutional a clause in National Eligibility Test (NET) qualifying norms, finding that it could eliminate general-category candidates even if they are more meritorious than candidates from reservation categories. This violates the right to equal opportunity of general-category candidates, the court said.
A single bench of the court gave the ruling after considering two petitions, including one filed by Nair Service Society, challenging the criteria fixed for qualifying in NET.
From the candidates who secured minimum qualifying marks in the NET, a merit list was prepared by selecting the top 15 per cent based on aggregate marks. For the three papers of NET, candidates belonging to categories such as OBC, SC, ST, and persons with disabilities had to score only 5-10 per cent lower marks to secure a pass. In the merit list prepared on the basis of aggregate marks, separate categories were maintained for OBC, SC, ST, and PWD.
It was alleged by the petitioners that such classification resulted in the number of candidates qualifying in NET from reservation categories to be much higher than the general category as more candidates secure minimum qualifying marks in reservation categories due to the lower qualifying marks. This infringes upon the right of general category candidates' fundamental right of equal opportunity in matters relating to public employment, they contended.
Ruling in favour of the petitioners, the court said in the judgment, "When more than 50% of the vacancies in the post of Assistant Professor in Universities and Colleges are open vacancies and when NET qualification is mandatory for staking a claim for selection in the said vacancies, a criterion which is likely to eliminate more than 50% of the candidates from general category from acquiring the NET qualification cannot be said to be a valid one, especially when they, or at least a substantial number among them, are more meritorious than the candidates who are NET qualified from the reserved categories. For the aforesaid reasons, I have no hesitation to hold that the impugned criteria would infringe the fundamental right to equal opportunity guaranteed to the candidates belonging to the general category under Article 16(1) of the Constitution and hence unconstitutional."
The criterion to be adopted to ensure the right of the reserved categories in a case like this should be one which would ensure justice to the candidates belonging to the reserved categories, equity for the candidates belonging to the general categories, and one that would ensure standards of the higher education system, the court said.
Courts can’t direct states on fixing quota percentage: SC
Dhananjay Mahapatra, January 28, 2022: The Times of India
New Delhi: The Supreme Court has ruled that constitutional courts cannot direct the states to earmark a certain per cent of reservation to any category in admissions to government-run institutions or jobs and quashed a Punjab and Haryana HC verdict directing a 3% sports quota in admissions to medical and dental institutions in the state.
The Punjab government had challenged the HC’s direction to provide for a 3% quota in admissions to MBBS and BDS courses in government medical and dental colleges in place of 1% reservation provided by the state, which has a large number of sportspersons. Allowing the appeal, the SC agreed that the HC could not have altered the quota percentage provided by the state for persons under sports category and quashed the order.
A bench of Justices M R Shah and B V Nagarathna said a constitutional court cannot even direct reservation percentage for SCs and STs. “Even if under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of the court, no mandamus can be issued by the court to the state government to provide for reservation,” it said.
Writing the judgment, Justice Shah said, “Insofar as making of provisions for reservation in matters of promotion to any class/classes of post is concerned, such a provision can be made in favour of SC/ST category employees if in the opinion of the state they are not adequately represented in services under the state. ”
The SC said Article 15(4) of the Constitution is an enabling provision and the state government is the best judge to grant reservation for SC/ ST/backward categories. Any policy and the decision of the state not to make any provision for reservation suffers from no infirmity and that every state can take its own decision with regard to reservation depending on various factors, it said.
On the HC judgment directing 3% sports quota, the bench said, “So far as the directions issued by the HC directing the state to provide for 3% reservation/quota for sportspersons, instead of 1% provided by the state is concerned, it appears from the impugned judgment and order passed by the high court that it has issued the said direction considering the Sports Policy, 2018. It is true that as per clause 8. 11(v), 3% reservation for sportspersons has been provided. ”
“However, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sportspersons other than 3%. Thereafter the state government has issued an order on July 25, 2019 providing for 1% reservation/ quota for sportspersons. The said order has been issued and 1% reservation/quota for sportspersons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the state government to provide for only 1% reservation/quota for sportspersons,” it said.
Reservation of jobs, promotions not intrinsic to public employment
From: Dhananjay Mahapatra, SC: States not bound to give quotas in jobs, promotions, February 9, 2020: The Times of India
‘Reservation Not Intrinsic To Public Employment’
Busting a constitutional myth about reservation being intrinsic to public employment, the Supreme Court has ruled that states are not bound to provide quotas for SCs, STs or OBCs in government jobs and that there is no fundamental right to claim reservation in promotion.
“There is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing the state government to provide reservations,” said a bench of Justices L Nageswara Rao and Hemant Gupta.
The ruling came in a case regarding the validity of the Uttarakhand government’s September 5, 2012 decision to fill up all posts in government services in the state without providing reservations to Scheduled Castes and Scheduled Tribes. The Uttarakhand HC had struck down the notification and had directed the government to provide quota to the specified categories.
Uttarakhand’s legal team argued that Article 16(4) and 16 (4-A) of the Constitution are merely enabling provisions and there is no fundamental right to claim reservation. The SC agreed the articles empower the state to make reservation in jobs and promotion in favour of SCs and STs “if in the opinion of the state they are not adequately represented”.
The bench upheld the September 5 notification and reversed the HC judgment. Writing the judgment for the bench, Justice Rao said, “It is settled law that the state government cannot be directed to provide reservations for appointments in public posts. Similarly, the state is not bound to make reservation for SCs and STs in matters of promotions. However, if they (the states) wish to exercise their discretion and make such a provision, the state has to collect quantifiable data showing inadequacy of representation of that class in public services.”
It also faulted the HC direction to the state to collect quantifiable data for providing reservation in promotion. The SC said, “Not being bound to provide reservations, the state is not required to justify its decision... Even if under-representation of SCs and STs is brought to the notice of the Supreme Court, no mandamus can be issued by this court to the state government to provide reservation.”
It’s for state govt to decide if quota is needed: SC
Senior advocates Ranjit Kumar, Mukul Rohatgi and P S Narasimha, appearing for Uttarakhand, had argued there is no fundamental right to claim reservation in appointments or promotions to public posts and that there was no constitutional duty on states to provide reservations. Appearing for people seeking quota in promotion, senior advocates Kapil Sibal, Dushyant Dave and Colin Gonsalves argued that states had a constitutional obligation to provide reservation for upliftment of members of SC and ST communities as mandated under Articles 16(4) and 16(4-A).
Justices Rao and Gupta said, “It is for the state government to decide whether reservations are required in the matter of appointment and promotions to public posts.”
The bench said when a state forms an opinion that reservation is not required to be provided, all that is needed is that there must be some material to support its decision. “The court should show due deference to the opinion of the state which does not, however, mean that that the opinion so formed is beyond judicial scrutiny altogether,” it said
Creamy layer
Income criterion
OBC creamy layer raised to Rs 8 lakh/ 2017
HIGHLIGHTS
The Commission is expected to submit a report within 12 weeks of the appointment of a chairperson, Jaitley said
The NCBC has recommended 3 sub-categories of OBCs
The recommendation was made to distinguish between extremely backward classes and 'forward' groups among the OBCs.
NEW DELHI: The government will soon set up a commission to examine the sub-categorization of 'Other Backward Classes', or OBCs, even as it has raised the OBC creamy layer criterion to Rs 8 lakh from Rs 6 lakh, announced finance minister Arun Jaitley.
The commission is expected to submit a report within 12 weeks of the appointment of a chairperson, Jaitley added. The National Commission for Backward Classes (NCBC) has in its report to the government recommended sub-categorisation within the OBCs into three categories, reported PTI in July.
The NCBC has recommended sub-categorisation within OBCs into Extremely Backward Classes (Group 'A'), More Backward Classes (Group 'B') and Backward Classes (Group 'C'), MoS for Social Justice and Empowerment Krishan Pal Gurjar said. "It has been recommended that the Extremely Backward Classes should be grouped into a separate group which could include aboriginal tribes, vimukta jatis, nomadic and semi- nomadic tribes, wandering classes etc," the minister said.
The recommendation was made to distinguish between extremely backward classes and 'forward' groups among the OBCs. "This has been recommended on the grounds of equity and fair play by not equating these Extremely Backward Classes with the forwards among the backward classes," said the minister.
Income alone can’t be the criterion: SC/ 2021
AmitAnand Choudhary, August 25, 2021: The Times of India
Holding that annual earnings cannot be the sole criterion for identifying the ‘creamy layer’ among backward communities to deny reservation, the Supreme Court held that it has to be done on the basis of a mix of social, economic and other relevant factors and not the economic criterion alone.
A bench of Justices L Nageswara Rao and Aniruddha Bose quashed 2016 notification by the Haryana government by which sections of backward classes earning above Rs 6 lakh per annum were to be considered as ‘creamy layer’. The bench said the decision of the state government was in violation of the principles laid down by the SC in Indra Sawhney case.
The court said the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016, makes it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors but the the state wrongly sought to determine ‘creamy layer’ solely on the basis of economic criterion and has committed a “grave error” in doing so.
“Therefore, we quash the notification, giving liberty to the state government to issue a fresh notification within a period of three months from today after taking into account the principles laid down by this court in Indra Sawhney case and the criteria mentioned in Section 5(2) of the 2016 Act for determining creamy layer,” the bench said. The court, however, said admissions to educational institutions and appointment to state services on the basis of the notifications shall not be disturbed.
The SC noted that the notification issued by the state in 1995 was in tune with the judgment in Indra Sawhney case but the 2016 notification was in violation of the verdict.
“The said notification excluded certain persons who held constitutional posts and those who were in employment of the state and the Centre in higher posts from the benefit of reservation. In addition, the social advancement of other categories was taken into account for the purpose of including such categories in ‘creamy layer’. Strangely, by 2016 notification, the identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. In clear terms, this court held that the basis of exclusion of ‘creamy layer’ can’t be merely economic,” it said.
The court said it was held that persons from backward classes who occupied posts in higher services like IAS, IPS had reached a higher level of social advancement and economic status and were not entitled to be treated as backward.
2018: PSU (creamy layer) wards do not get reservation in civil services
Axe On 29 OBCs Despite HC Flaying Govt’s Method Of Calculation
The concept of “creamy layer” for one group of OBCs — wards of employees of PSUs — continues to be muddled. In keeping with past years, the government has again deprived reservation benefits to 29 successful OBCs in UPSC examinations for elite services like the IAS and IPS.
Twelve OBCs were left out of the UPSC list in 2012, 11 in 2015 and four in earlier years, as per the figures compiled by the aggrieved group.
Crucially, the axe on these OBCs this year comes despite a Delhi high court judgment in March which slammed the Centre’s method of calculating the “creamy layer” for wards of employees of PSUs.
At the heart of the controversy lies what has been termed “hostile discrimination”. “Creamy layer” identifies the better off individuals among OBCs, ineligible for Mandal reservations.
However, the Centre in recent years has resorted to different methods to calculate “creamy layer” for employees of central and state governments, and of PSUs.
According to government guidelines, while Group A and Group B are ineligible for Mandal quotas, others are eligible if their annual income from other sources does not exceed Rs 8 lakh. Importantly, the annual income does not include salaries of parents.
While DoPT has been determining the “creamy layer” for PSU background by including the parents’ salaries, it has been excluding the salaries of parents employed in central or state governments — putting the first category at a disadvantage.
Disagreeing with the discrimination, the Delhi HC had ruled that the government employ similar formula for all categories of backward candidates. But if the “service allocation list” of 2017 UPSC exam is any evidence, the government has not changed its method.
Shashank Ratnoo, an advocate in the case who is also an aggrieved UPSC candidate, said, “There is no stay on the court order. The government did not change the method to calculate the creamy layer for PSU candidates even for the 2016 batch. We have filed a contempt petition. It has done it again for the 2017 batch.”
Before the Delhi HC order, the Madras HC had in August 2017 directed the Centre to use the same formula for both categories of OBCs. However, the Madras order was stayed by the court.
The DoPT had told the Delhi HC that “creamy layer” for PSU candidates follows the principle spelt out in its communication of October 14, 2004. On the other hand, the petitioners argued that October 14 order “discriminates the employees of PSUs vis a vis the government employees, and ought to be quashed”. In its order, the HC agreed with the petitioners.
Twelve people from the OBC category were left out of the UPSC list in 2012, 11 in 2015 and four in earlier years, as per compiled figures
Exclude ‘creamy layer’ from SC/ST reservations: SC, 2018
Dhananjay Mahapatra, September 27, 2018: The Times of India
But Gives Relief On Quota In Promotions
In a historic decision, a five-judge Constitution bench of the Supreme Court ruled that the “creamy layer exclusion” principle, till date applied only to OBCs, can be extended to Scheduled Castes and Scheduled Tribes to deny reservation to the “elite” among these underprivileged communities.
The order of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra overshadowed the relief they gave to the Centre, states and SC & ST government employees in exempting states from collecting quantifiable data on backwardness to justify reservation in promotion for the two categories.
The bench said their backwardness has been recognised as inherent to them after statutorily provided scrutiny to warrant inclusion in the list of scheduled communities under Presidential Order to get reservation benefits.
The requirement to furnish quantifiable data, laid down by the apex court in the M Nagraj case in 2006, to justify reservation in promotions for SC & ST employees has held up elevation of serving employees from the two categories, leading to restiveness in their ranks. But the extension of “creamy layer” criterion is sure to temper the happiness over the bench doing away with the mandatory requirement to back up the case for promotion in quota by marshalling data on backwardness.
‘Creamy layer shouldn’t bag all coveted jobs’
The CJI -led bench unanimously agreed to extend the “creamy layer exclusion” principle to SCs and STs and said: “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,” it said.
“The caste or group or subgroup 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 are excluded from the benefit of reservation,” Justice Nariman wrote for the bench.
While doing away with the stipulation to collect data to justify quota in promotion for SCs & STs, the bench turned down the demand of the petitioners for reconsideration of the Nagraj judgment. In upholding the validity of Article 16(4A) providing promotion in reservation to SC and ST government employees, the SC had in the Nagraj case put three caveats that almost turned out to be a spanner in its implementation.
Writing the unanimous 58-page judgment for the bench, Justice Nariman said the Nagraj ruling need not be sent for reconsideration to a sevenjudge bench while correcting the only mistake in it.
The position in
2019
Subodh Ghildiyal Times of India
After denying elite civil services jobs to over 60 successful candidates, the Modi government has tied itself in knots over application of creamy layer for OBCs whose parents work in PSUs.
In the just-concluded Parliament session, the social justice ministry told Lok Sabha that it does not include “salaries” in the “wealth test” to decide if an OBC from PSU background belongs to “creamy layer”.
“Creamy layer” is the segment of OBCs which is considered economically advanced and is ineligible for 27% Mandal reservations.
Replying to a question, junior minister for social justice Krishan Pal Gurjar cited the guiding charter on determining creamy layer (1993 Office Memorandum) which states that income from “salaries” and “agriculture” is not taken into account to compute the “annual income” of a family. He mentioned the norm was followed even if “equivalence” of posts between PSUs and government was not done. Additionally, he cited a 2004 OM issued by DoPT to stress that “salaries” are not included in deciding the “creamy layer”.
However, the reply contradicts the practice followed by the Centre since the DoPT has been treating OBCs from PSU background differently from those working in state or central governments.
While in case of former, it has been factoring in the “salaries” of parents, in case of latter, it has been exempting “salaries” — thereby putting PSU candidates at a serious disadvantage.
The said distinction has cost elite civil service jobs, conducted by the UPSC like the IAS, IFS, IPS and Indian Revenue Services, to over 60 candidates since 2014.
So much so, the Centre defended the practice after the Delhi and Madras high courts slammed it as discriminatory and directed the Centre to exclude “salaries” to decide “creamy layer” for OBCs whose parents work in PSUs and banks.
In 2017, the Centre filed an appeal in the Supreme Court against the Madras HC order in which it argued that government norms lay down that “salaries” will be taken into account for computing the annual income in case of PSUs where “equivalence of posts vis-a-vis government” has not been done.
“Equivalence of posts” implies identifying posts in PSUs as Group A/B/C/D like in the government.
The 1993 OM states that Group A and B (with caveats) are “creamy layer” while others are subjected to “wealth test” as per which those with annual income above Rs 8 lakh are ineligible for quotas. It clarifies that “income” does not include “salaries” of parents and “agricultural income”.
Given by social justice ministry in Lok Sabha on December 10, the reply stresses that “salaries” are not taken into account even in the absence of “equivalence” of posts in a PSU. Dragging on for over five years, the creation of two categories among OBCs — those working in government and in PSUs — has triggered a crisis.
In March 2019, Union law ministry had given an opinion to the parliamentary committee on OBC welfare that “salary” and “agricultural income” should not be included in the “wealth test” of OBCs whose parents work in PSUs and banks.
2024: no revision since 2017
Subodh Ghildiyal TNN, July 15, 2024: The Times of India
The increase in ‘income ceiling’ for 27% OBC quotas is pending for seven years, which has made it twice overdue for a hike. It is supposed to be revised every three years to adjust for inflation. The ‘creamy layer’, last revised from Rs 6 lakh to Rs 8 lakh in 2017, is the group of backwards who are categorised as well-off among the OBCs and thus ineligible for job and education quotas.
All India OBC Employees Federation general secretary G Karunanidhy said during the seven years, the Union govt has revised the salary structure of its employees and increased their dearness allowance (DA) from 24% to 46% till July 2023, and ignoring these indexes for income ceiling for reservation is unjustified. “The new central govt has settled in. We demand immediate revision of income ceiling for creamy layer to Rs 15 lakh,” he said.
When the income ceiling was due for an increase in 2020, the Union social justice ministry moved a cabinet proposal recommending it be hiked from Rs 8 lakh to Rs 12 lakh, but added a separate point to redefine the ‘income criteria’ for the ‘creamy layer’. As laid down by the post-Mandal 1993 office memorandum, ‘income’ does not include ‘salary’ and ‘agricultural earnings’, but govt proposed that in future ‘salary’ be included in calculating ‘income’.
The proposal ran into resistance from the National Commission for Backward Classes and senior OBC leaders of BJP, who argued that inclusion of ‘salary’ in calculating the ‘creamy layer’ would make it easier for a backward to be considered better-off. A surprised Modi govt was forced to put the proposal in cold storage.
The deadlock dragged on for three years and in Sept 2023, the revision became due again. Meanwhile, the social justice minister told the Lok Sabha on Feb 7, 2023, that there was no proposal for revision “since the existing income limit is considered sufficient”, triggering outrage among the backwards.
Now, with two hikes overdue, social justice activists like Karunanidhy, who have sent several letters to govt, complain it has become much easier for an OBC to be weeded out of eligibility for reservations because Rs 8 lakh is too low a ceiling in 2024, seven years after it was determined.
Law ministry’s opinion/ 2019
The law ministry has said that “salary” and “agricultural income” should not be included in the “wealth test” of OBCs whose parents work in PSUs and banks, to determine if he belongs to the “creamy layer” — an opinion which can upend the Centre’s stance on the issue which has created a permanent source of career crisis for the youth of this category.
Agreeing with the law ministry’s opinion, Parliament’s “committee on welfare of OBCs” has told the Centre that it should ensure that “salaries” and “agri income” are not considered in the “wealth test” for any category of OBCs.
“Creamy layer” is the section of backward castes which is considered economically advanced and ineligible for reservations. The department of personnel and training has been treating the OBCs from PSU background differently from those working in state or central governments.
The guiding charter (1993 OM) has laid down that Group A and Group B (with caveats) are ineligible for quotas while others are eligible provided their annual income is not above Rs 8 lakh. It states that annual income does not include the “salaries” of parents and “agricultural income”.
The Centre has been applying this “exclusion criteria” for wards of persons employed in central and state governments, but in case of PSUs and banks, the Centre has been calculating the “creamy layer” on the basis of salaries of parents, putting the latter at a disadvantage.
While the high courts of Madras and Delhi had slammed the Centre and asked them to apply the same principle for both categories of OBCs, the government chose to file an appeal in the Supreme Court.
Now, the law ministry has given a categorical opinion contradicting the Centre’s stand.
To a clarification sought by Parliament’s “committee on welfare of OBCs” through Congress MP B K Hariprasad, the law ministry said that “category II-C” (PSUs/banks etc) would be subjected to the “wealth test” (section VI) mentioned in the 1993 OM. It has said that exclusion of “salaries and agri-income” counts for both the categories.
It contradicts the stance taken by the DoPT in its affidavit in the SC — that not clubbing of “salary” and “agri-income” was not applicable to OBCs from PSU background.
The law ministry has said that ‘salary’ and ‘agricultural income’ should not be considered for the ‘wealth test’ of OBCs whose parents work in PSUs and banks
Why defining creamy layer bar is difficult
January 9, 2019: The Times of India
As a debate rages over whether a Rs 8 lakh income limit for accessing the proposed 10% quota for the economically weak is too generous, studies show that the narrowing income gap, particularly between OBCs and general castes, makes exclusion a problem for the existing quotas too.
It was after considerable negotiations that the creamy layer income criteria for OBCs was raised to Rs 8 lakh in 2017 after a gap of four years. The process faced resistance of backward groups which pointed to the castebased essence of the Mandal recommendations even as equitable access remains problematic.
With the closing of income gaps between OBCs and general castes, the number of those likely or who are eligible to benefit from reservations is broadly comparable to those in the non-reserved sections.
The Rs 8 lakh income bar for the new quota mirrors the existing creamy layer regulations for the OBC quota and a study by a non-profit People Research on India’s Consumer Economy (PRICE) shows that the weighted intra-caste deviation in income between OBC and general caste household in metros was 160 and 177 where the average all-India national income of a little under Rs 2 lakh was taken as 100.
The study, released in 2014, reflects trends that have not altered much. In boom towns, the ratio is 167 and 163 and for developed rural areas it is 156 and 136. For emerging rural areas it was 87 and 97. Overall the weighted scores are 97 for OBC and 122 for GCs.
The government has argued that the Rs 8 lakh limit is taken from the creamy layer criteria and even a monthly income of around Rs 66,000 is not enough to support professional education for children. With incomes of OBC households looking more comparable, the gains and losses of the income bar might be similar too.
In its more recent 2016 pan-India survey, PRICE has noted that average incomes are much lower than anticipated among various consumer groups. Going by middle class characteristics like regular earnings, ownership of vehicles and appliances, a large section of population does not qualify.
Separating the “true” middle class and the rich, there is a large swathe of middle India. In this ‘in between’ section, barely 20% have regular salaried jobs. The average income is around Rs 15,000 a month. The study found that the richest 20% account for 45% of income.
Change of category
Quota candidate can’t change category: SC
July 5, 2019: The Times of India
‘Quota candidate can’t change category’
A reserved category candidate, who has availed age relaxation in a selection process, cannot seek accommodation in or migration to general category seat at a later stage, the Supreme Court on Thursday held. It said Article 16(4) of the Constitution empowers a state to give reservation in appointments to any backward class of citizens, which in its opinion, is not adequately represented in the service there. A bench of justices S Abdul Nazeer and Indira Banerjee upheld the Gujarat high court verdict, which said candidates who got the benefit of age relaxation by virtue of being from a reserved category are not entitled to be considered in general category and their cases are required to be considered for reserved category cases only. PTI
Death penalty under POCSO
L P Nayak, January 27, 2022: The Times of India
Araria: A Pocso court in Bihar’s Araria on Thursday sentenced to death a 48-year-old man convicted of kidnapping and raping a seven-year-old Dalit girl on December 1 last year. “The rape of a child involves extreme brutality, which has always been regarded as an aggravated form of rape. The girl was subjected to inhuman acts of torture and cruelty for the sole motive to commit rape. This clearly falls in the category of rarest of rare cases,” special Judge Shashikant Rai said while handing capital punishment to Mohammad Major. “We have ensured speedy trial. The case was investigated and a chargesheet submitted on January 12, within 41days of the crime,” SP Ashok Kumar Singh said Special public prosecutor Shyamlal Yadav said it was probably the first instance of a Pocso court pronouncing capital punishment to someone convicted of raping a minor from the SC community.
Economically weaker sections from unreserved classes quota
2022: SC upholds EWS quota
Amit Anand Choudhary, Nov 8, 2022: The Times of India
NEW DELHI: The Supreme Court, by a 3:2 verdict, upheld validity of the 103rd constitutional amendment carried out to provide legal sanction to the Modi government's decision to carve out 10% reservation for the economically weaker sections from unreserved classes for admission in educational institutions and government jobs and held that the 50% cap on quota is not inviolable and affirmative action on economic basis may go a long way in eradicating caste-based reservation.
A five-judge bench of Chief Justice UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala approved the amendment by majority (3:2), which would push the total reservation to 59.50% in central institutions.
However, all judges agreed that reservation on the basis of economic status was justified in the light of the constitutional amendment, while also approving the quantum of the quota going beyond the 50% ceiling that the SC had laid down in the Indra Sawhney case. In their dissenting verdict, CJI Lalit and Justice Bhat struck down the amendment holding the exclusion of SCs, STs and OBCs from the purview of economic backwardness to be “discriminatory and arbitrary”.
The judgment expands the grounds for affirmative action beyond social and educational backwardness to include economic backwardness, while also clearing the way for more attempts by governments to provide above 50% quota in government jobs and educational institutions on grounds of social and educational backwardness as well as economic deprivation.
Excluding poor from reserved classes discriminatory: Minority judgment
In their minority verdict, Chief Justice U U Lalit and Justice Ravindra Bhat held that the 103rd constitutional amendment was discriminatory in not allowing the poor from the reserved classes to get the benefits of reservation while giving benefits to only general classes and cited official data which showed that more than 80% of the Below Poverty Line (BPL) families belonged to SCs/STs/OBCs.
“The exclusionary clause (in the impugned amendment) that keeps out from the benefits of economic reservation, backward classes and SC/STs, therefore, strikes a death knell to the equality and fraternal principle which permeates the equality code and non-discrimination principle,” said Justice Bhat, who penned the judgment for himself and the CJI.
“The concepts which our Constitution fosters, and the principles it engenders — equality, fraternity, egalitarianism, dignity, and justice (at individual and social levels) are all inclusive, all encompassing. The equality code in its majestic formulation (Article 14, 15, 16 and 17) promotes inclusiveness. Even provisions enabling reservations foster social justice and equality, to ensure inclusiveness and participation of all sections of society. These provisions assure representation, diversity, and empowerment. Conversely, exclusion, with all its negative connotation — is not a constitutional principle and finds no place in our constitutional ethos. Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion,” he said.
Justice Bhat agreed that reservation could be granted on economic criteria but stuck down the 103rd amendment for being discriminatory and arbitrary. He, however, refrained from going into the issue whether breaching of 50% reservation is permissible. As per NSSO statistics of 2004-05, overall 31.7 crore people were below the poverty line (BPL), of which the Scheduled Caste accounted for 7.7 crore (38% of total SC), followed by Scheduled Tribe with 4.2 crore (48.4% of total), OBC with 13.9 crore ( 33.1% of total) and and 5.8 crore from the general category (18.2% of total). Justice Bhat also referred to crime data . “These legal developments and statistics belie the perception that such classes which can benefit from compensatory discrimination can be rightfully excluded from the benefit of reservations for the poor. That view, in my opinion is indefensible, and ignores stark realities,” he said.
“It is essential that for the unity of this great nation, we all recognise that fraternity is the integrator, and unifier, which needs active propagation and practice, in tune with our preambular resolve to preserve our Republic. Therefore, divisiveness of any form—polity, social hierarchy, religion, origin, or regional— destroys fraternity and undermines unity. Divisiveness tends to polarise people and is likely to foster distrust. Weakening fraternity therefore undermines justice, liberty, and equality,” he said.
He said the exclusion of SCs/STs/ OBCs from EWS quota is not based on deprivation but social origin or identity. “This strikes at the essence of the non-discriminatory rule. Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens - and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of non-discrimination,” he said.
Guiding principles: The 50% ceiling
Three landmark SC judgements
Use Of 9th Schedule Won’t Give Breach Of 50% Cap SC Immunity
Congress party’s election eve promise to enact a law to carve out separate quota for Patidars in Gujarat and make it immune from the scrutiny of the Supreme Court by inserting the legislation in the Ninth Schedule of the Constitution will be in conflict with three landmark SC judgements.
Both the elements in the promise — one, a separate quota in jobs over and above the ceiling of 50% fixed by the SC; and second, attempt to innoculate it from judicial scrutiny — have been frowned upon by two 9-judge bench judgments, as well as a five-judge bench ruling of the SC.
In Indra Sawhney judgement, popularly known as Mandal verdict which upheld 27% reservation for OBCs with exclusion of the creamy layer, the SC bench had by 6-3 majority on November 16, 1992 categorically ruled that total reservation in government jobs cannot exceed 50% of the vacant posts advertised, and that there shall not be any reservation in promotion.
With the upholding of 27% reservation for OBCs, the total reservation in jobs, including a combined 22.5% for the Scheduled Castes and Scheduled Tribes, the total quantum of reservation stands capped at 49.5%. This leaves scope for providing a mere 0.5% reservation for any other category that a political party may wish to classify as a class of citizens who are socially and economically backward and, thus, deserving of quota support. Then again, the identification of the beneficiary has to be done through a separate mechanism, like the Mandal Commission did in 1980s.
The apex court emphasised the inviolability of the 50% cap again while considering reservation in promotion in October 2006. A fivejudge SC bench in M Nagaraj reiterated the general principle laid down in Indra Sawhney case, saying, “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.”
“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,” it had ruled.
The perception, popular within the political class, that a legislation becomes immune from judicial scrutiny when inserted in Ninth Schedule of the Constitution, was blown away by a nine-judge SC bench in I R Cohello case on January 11, 2007. The SC held that insertion of a law in the Ninth Schedule will not save it from being struck down if, on judicial scrutiny, the law was found to be violating fundamental rights.
The bench held: “The constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, that is the (fundamental) rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.”
1992 Sawhney: SC on financial status, 50%
Will the NDA government’s 10% quota for economically backward classes overcome twin barriers — no reservation based on a person’s financial status and capping quota at 50% — erected by the Supreme Court in its 1992 Indra Sawhney judgment facilitating the 27% reservation for OBCs?
The NDA government hopes to overcome both barriers. First, by introducing “economic backwardness” as a new criteria in Article 16(4) of the Constitution, which so far had recognised only social and educational backwardness as twin criteria for reservation. And second, the SC had itself clarified that 50% cap applied only to quota for such classes and there could be other grounds for reservation.
In the Indra Sawhney judgment, the SC had considered the September 25, 1991 office memorandum issued by the P V Narasimha Rao government for implementation of Mandal Commission report for 27% reservation to OBCs and had introduced 10% reservation for economically backward classes. The SC had struck down the 10% quota saying “though the criteria is not yet evolved by the government, it is obvious that the basis is either the income of a person and/or the extent of property held by him. The impugned memorandum does not say whether this classification is made under Clause (4) or Clause (1) of Article 16.”
1992 SC clarification gives govt hope
Reservation of 10% of vacancies among open competition candidates on the basis of income/ property-holding means exclusion of those above the demarcating line from those 10% seats. The question is whether this is constitutionally permissible. We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the state solely on the basis of his income or property-holding,” the SC had ruled.
Taking note of this, the NDA government has decided to move a constitutional amendment to insert “economically backwardness” as a ground, in addition to socially and educationally backward, for grant of reservation. If this constitutional amendment, once it is passed by Parliament, is challenged, the SC would have to undertake a fresh exercise to test validity of economic backwardness as a criteria for reservation.
Interestingly, it was the SC which had insisted on weeding out affluent among the OBCs from reaping quota benefits and had asked the Centre to exclude “creamy layer” among SEBCs from quota to ensure that only poor among them were benefited.
In the 1992 judgment, the SC had fixed 50% as the maximum limit of reservation in government jobs. “The 27% reservation provided by the memorandum in favour of backward classes is well within reasonable limits. Together with reservation in favour of SCs (15%) and STs (7.5%), it comes to a total of 49.5%... The irrefutable conclusion that follows is that the reservation, contemplated in clause 4 of Article 16, should not exceed 50%.” Will this 10% quota for the economically backward violate that 50% quota limit?
Interestingly, what gives hope to the NDA government is the SC’s clarification — “we are also of the opinion that this rule of 50% applies only to reservation in favour of backward classes made under Article 16(4)”. It had also said: “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people.”
Talking of wide diversity and many sections in farflung areas being out of the mainstream because of the peculiar condition faced by them, the SC had said: “...some relaxation in this strict rule (50% cap) may become imperative. In doing so, extreme caution is to be exercised and special case made out.”
So, NDA would have to show the SC how it carved out a special case for poor among general category to provide them with 10% reservation.
Rajasthan HC strikes down 5% quota for Gujjars, 4 others
Joychen Joseph, Raj HC strikes down 5% Gujjar quota, Dec 10 2016: The Times of India
The Rajasthan high court scrapped the Rajasthan Special Backward Classes (SBC) Reservation Act 2015 that provisioned for 5% quota to five communities, including Gujjars.
The court struck down the notification of October 2015, saying there were “no extraordinary circumstances“ to allow the state's overall reservation in government jobs and education institutes to go beyond the 50% cap. Following the notifica tion, the overall reservation in the state reached 54%, which was in violation of the 50% cap set by the Supreme Court.
The Act had provided 5% reservation in jobs and educational institutes to five communities: Gujjars (Gurjars), Banjara (Baldia, Laba na); Gadia-Lohar (Gadolia), Raika (Rebari, Debasi) and Gadaria (Gaadri, Gayari).
The division bench of Justice M N Bhandari and J K Ranka passed the 199-page judgement on a writ petition filed by ex-Army Capt Gurvinder Singh, the Samta Andolan Samiti and others. The division bench found fault also with the SBC Commission, which was headed by Justice (retd) I S Israni, which studied the status of 82 OBC communities in the state. The high court said there were many discrepancies in the SBC Commission report, so its recommenda tions cannot be accepted.
It said the SBC Commission failed to consider Article 16(4B) of the Constitution, which forbids reserva tion exceeding 50%, and used the Indra Sahwney case judgement to arrive at wrong conclusions.
2019: States using EWS quota to breach cap
Subodh Ghildiyal, States using EWS quota to breach cap, March 9, 2019: The Times of India
Raj, MP Have Already Crossed The 50% Limit On Reservation
In a direct fallout of upper caste reservations, states are using the Centre’s 10% EWS quota as cover to increase the quantum for backward classes beyond the 50% ceiling which they were unable to do earlier — a move that threatens to open the floodgates on total reservation possible and complicate the already nettlesome issue.
Rajasthan last month passed 10% EWS quota in the state and on Wednesday, Madhya Pradesh followed suit. In both states, the total reservation has touched a high 64% and 70% respectively.
States were expected to introduce quota for “the poor among upper castes” after the Centre’s landmark decision this January to introduce economic criteria for reservation in jobs and educational institutions through a constitutional amendment.
However, the crucial, and controversial, aspect of the Centre’s decision was to take reservation beyond 50% — a ceiling imposed by the Supreme Court. The government has defended it as legally sustainable by arguing that the halfway barrier on quotas was limited to “backward classes” while EWS quota is not on caste but on economic criteria.
Irrespective of the soundness of the defence, states have come to view the EWS quota as a convenient shield to do what was impossible earlier — take the OBC quota beyond 50%.
The modus operandi, as evidenced in MP and Rajasthan, is that states introduce EWS quota to “legally” take reservations beyond 50%. And alongside, they bring legislations to increase quota for SCs or STs or OBCs.
While Rajasthan did it to provide 5% quota for Gujjars, MP used the opportunity to hike its OBC quota from 14% to 27%.
It is now to be seen if more states would follow Rajasthan and MP, and hike ‘backward class’ quota under the cover of EWS. If the trend holds, the fear is that there would be no bar on total reservation.
There are sure to be complications ahead. With the clubbing of sorts of EWS and backward classes’s quota on the issue of breaching of 50% ceiling, any legal examination of one is likely to involve that of the other. It would not only open the viability of EWS quota to legal scrutiny but also pit the two quotas against each other.
Till now, such attempts automatically hit the judicial firewall — like Rajasthan’s post-2009 manoeuvres on Gujjar front, Maharashtra law on Marathas, Jats in Haryana and some of the other states. While the Centre has claimed that EWS quota is beyond the 50% ceiling, many view it as a politically difficult argument to make to stop the states from hiking SC/ST/ OBC reservation above the halfway mark. Also, no political party would be willing to lean on this logic which is sure to appease the upper castes but antagonise the “backward classes”.
The modus operandi, as seen in Rajasthan and MP, is that states introduce EWS quota to ‘legally’ take reservations beyond 50%. And alongside, they bring legislations to increase quota for SCs/ STs/ OBCs.
2019/ 50% ceiling breached, HC upholds Maratha quota
The state of reservations in India in 2019 June
From: Swati Deshpande, June 28, 2019: The Times of India
See graphic, ' The state of reservations in India in 2019 June '
2021 May: States that breach the 50% quota
From: AmitAnand Choudhary , May 5, 2021: The Times of India
See graphic:
States that breach 50% quota, as in May 2021
2020: HC scraps AP’s 60% quota in local bodies
HC scraps AP’s 60% quota for SC/STs in local bodies, March 3, 2020: The Times of India
The Andhra Pradesh high court scrapped the state government order providing 59.85% reservations in seats in local bodies for SCs, STs and Backward Class communities. The HC directed the government to fix reservations not more than 50% and complete the exercise within one month. The state government is preparing to hold elections to panchayats, municipalities, zilla and mandal parishad councils soon.
B Pratap Reddy had moved the high court challenging the government decision.
The petitioner argued that providing 59.85% reservations is against the Supreme Court ruling. Advocate general argued that the state government can increase reservations in case of special conditions. He said that the population of the BCs has increased in the state when compared with the Census in 2011. The HC said that there were no special situations in the state and hence the government should follow the Supreme Court ruling and fix reservations not more than 50%.
The HC order will pose a big challenge to the State Election Commission which has made preparations to hold local body elections. Officials said that it will take at least one month for completing an exercise on reservations and the elections will be held in April.
Opposition parties said the state government had bluffed the Backward Classes by issuing the order against the Supreme Court ruling. “The state government followed the footsteps of the Telangana government and issued an order fixing 59.85% reservations. The government is aware of the Supreme Court ruling and still, it increased the reservations to bluff Backward Castes,” said TDP functionary Bonda Umamaheswara Rao.
2022: Chhattisgarh: HC strikes down 58% reservations
TNN , Sep 20, 2022: The Times of India
RAIPUR: The Chhattisgarh high court held that reservation above 50% in jobs and education is unconstitutional and set aside a state government decision of 10 years ago that raised the quota to 58%.
Hearing petitions challenging the then BJP government’s decision of 2012, the division bench of Chief Justice Arup Kumar Goswami and Justice PP Sahu observed that 58% reservation for spots in state-run medical and engineering colleges is unconstitutional.
In 2012, the Chhattisgarh government amended the reservation rules, slashing the quota for scheduled castes (SC) by 4% (16% to 12%) and hiking reservation for scheduled tribes (ST) by 12%—from 20% to 32%. The OBC reservation was kept unchanged at 14%. Together, it took reservation to 58%, breaching the 50% ceiling set by the Supreme Court.
On May 16, 2012, the director of medical education issued a notice for admission to pre-PG medical and dental course, providing 58% reservation with the hiked quota for STs.
Describing this as unconstitutional and against SC orders, petitioners Dr Pankaj Sahu, Arun Kumar Pathak and others moved HC through counsel Mateen Siddiqui, Vinay Pandey and Shyam Tekchandani.
The counsel submitted in court that the petitioners are young, aspiring candidates, sincerely attempting competitive examinations conducted by Chhattisgarh State Public Service Commission and Professional Examination Board. They are from the unreserved category and come from middle-class families and would have been selected in the examination but for the 58% quota.
The counsel submitted that Article 14, 15 and 16 of the Constitution guarantee every citizen equal opportunity in public employment, without prohibition or discrimination on the grounds of religion, race, caste, sex or place of birth.
Their counsel said petitioners are young, aspiring candidates, sincerely attempting competitive examinations conducted by the Chhattisgarh State Public Service Commission and Professional Examination Board. They are from the unreserved category and come from middle-class families.
2024/ Bihar: HC strikes down quota beyond 50% as ‘bad in law’
Dev Kumar Pandey TNN, June 21, 2024: The Times of India
Patna : A division bench of Patna HC struck down a pair of laws brought by Bihar govt last year to raise job and education quotas for Dalits, backward classes and tribals from 50% to 65%, terming these “ultra vires” – or beyond the powers of the state – and a violation of the right to equality guaranteed by Articles 14, 15 and 16 of the Constitution.
Both the Bihar Reservation (for SCs, STs, and OBCs) (Amendment) Act, 2023, and Bihar (in admission in educational institutions) Reservation (Amendment) Act, 2023, passed by the assembly and notified last Nov were purportedly based on the findings of the govt’s caste survey, which itself went through multiple le- gal hurdles before being completed. HC said the raise in quota beyond 50% was “bad in law”.
HC slams Bihar for hiking quota without any in-depth analysis
The bench of Chief Justice K Vinod Chandran and Justice Harish Kumar said increase in reservations beyond 50% was “bad in law based on principles of equality emanating from the Constitution, as laid down by the wealth of precedents discussed in this judgment”.
“That the state attempted no in-depth study or analysis before providing for enhancement of the reservation percentage is established from the records. That the state proceeded on mere proportion of population of different categories, as against their numerical representa- tion in govt services and educational institutions, is the admitted position and pivotal argument. That this argument works against the core principles of Articles 15 (4) and 16(4) is a given fact,” the bench said.
The new laws individually raised the reservation percentage for SCs from 16% to 20%, STs from 1% to 2%, BCs from 15% to 18%, and EBCs from 20% to 25%. This was to be applicable to govt jobs and admission to state-run educational institutions in Bihar.
The increase in reservation limits cumulatively exceeded the ceiling of 50%, set three decades ago by a ninejudge constitutional bench of SCin Indra Sawhney vs Union of India case.
The ceiling remains a constitutional benchmark for reservation laws governing public employment. The petitioners alleged that caste-wise socio-economic reports emanating from the caste survey of Bihar were published on Nov 7 last year, whereas the bill proposing amendments to reservation limits was tabled two days thereafter.
“Hence, imminently no analysis for ascertaining backwardness was carried out by the state govt as was stated in the preamble of the two impugned amended laws,” the petitioners argued.
Muslims
Religion-based reservations: A backgrounder
Faizan Mustafa, May 8, 2024: The Indian Express
The Constitution of India moved away from equality, which refers to equal treatment for all, to equity, which ensures fairness and may require differential treatment or special measures for some groups. The Supreme Court has held that equality is a dynamic concept with many aspects and dimensions, and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits (E P Royappa vs State Of Tamil Nadu, 1973).
Formal equality is concerned with equality of treatment — treating everyone the same, regardless of outcomes — which can at times lead to serious inequalities for historically disadvantaged groups. Substantive equality, on the other hand, is concerned with equality of outcomes. Affirmative action promotes this idea of substantive equality.
The Constitution of 1949 dropped the word ‘minorities’ from Article 296 of the draft constitution (Article 335 of the present Constitution), but included Article 16(4) that enabled the state to make “any provision for …reservation…in favour of any backward class of citizens which…is not adequately represented in the services under the state”. The first constitutional amendment inserted Article 15(4), which empowered the state to make “any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.
Article 15 specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth). After the Supreme Court’s judgment in State of Kerala vs N M Thomas (1975), reservation is considered not an exception to the equality/ non-discrimination clauses of Articles 15(1) and 16(1), but as an extension of equality.
The crucial word in Articles 15 and 16 is ‘only’ — which implies that if a religious, racial, or caste group constitutes a “weaker section” under Article 46, or constitutes a backward class, it would be entitled to special provisions for its advancement.
Some Muslim castes were given reservation not because they were Muslims, but because these castes were included within the backward class, and reservation was given without reducing the quota for SCs, STs, and OBCs by creating a sub-quota within the OBCs.
The Mandal Commission, following the example set by several states, included a number of Muslim castes in the list of OBCs. The Supreme Court in Indra Sawhney (1992) laid down that any social group, whatever its mark of identity, if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.
Kerala: Muslim sub-quota
Religion-based reservation was first introduced in 1936 in Travancore-Cochin state. In 1952, this was replaced by communal reservation. Muslims, who constituted 22% of the population, were included within the OBCs.
After the state of Kerala was formed in 1956, all Muslims were included in one of eight sub-quota categories, and a sub-quota of 10% (now 12%) was created within the OBC quota.
Unlike the faulty report of the Mandal Commission which concluded, on the pattern of Hindus, that only 52% Muslims were OBCs, in Kerala and Karnataka, from the times of the Hindu maharajas, Muslims were seen as having been drawn overwhelmingly from the “untouchable” and other “low” castes, and were thus included among the backward classes.
Karnataka: JD(S) decision
The Third Backward Classes Commission of Karnataka headed by Justice O Chinnappa Reddy (1990) found, like the Havanur (1975) and Venkataswami (1983) Commissions, that Muslims fulfilled the requirements for being considered among the backward classes.
In 1995, the government of Chief Minister H D Deve Gowda, who is currently an ally of the BJP, implemented 4% Muslim reservation within the OBC quota. Thirty-six Muslim castes which are part of the central list of OBCs were included in the quota.
Deve Gowda’s JD(S) had criticised the decision of the Basavaraj Bommai government to scrap the Muslim quota before the Assembly polls of 2023. The Supreme Court subsequently stayed the Bommai government’s decision.
Tamil Nadu: Backward Muslims
The government of M Karunanidhi passed a law in 2007 based on the recommendations of the Second Backward Classes Commission headed by J A Ambasankar (1985), that provided within the 30% OBC quota, a sub-category of Muslims with 3.5% reservation. This did not include upper-caste Muslims. The Act gave reservation to some Christian castes, but this provision was subsequently removed on the demand of Christians themselves.
Andhra Pradesh & Telangana
The question of giving Muslims reservation along with 112 other communities/ castes was referred to the Andhra Pradesh Backward Classes Commission in 1994.
In 2004, based on a report by the Commissioner of Minority Welfare on the social, economic, and educational backwardness of Muslims, the government provided 5% reservation, treating the entire community as backward. The High Court struck down the quota on the technical ground that the mandatory consultation with the AP Commission for Backward Classes was not done. It also held that the minority welfare report was bad in law because it laid down no criteria for determining backwardness. (T Muralidhar Rao vs State of AP, 2004)
However, the court held that “reservations for Muslims or sections/ groups among them, in no manner militate against secularism, which is part of the basic structure of the constitution”. Relying on M R Balaji vs State of Mysore (1962), the court noted that “Muslims or for that matter Christians and Sikhs etc., are not excluded for the purpose of conferring the benefits under Articles 15(4) or 16(4)”.
In M R Balaji, the Supreme Court observed: “It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why…though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf.”
In Indra Sawhney (1992), the Supreme Court held that “in a particular state, Muslim community as a whole may be found socially backward. (As a matter of fact, they are so treated in…Karnataka as well as…Kerala…)”.
Following the 2004 HC decision, the AP government referred the issue to the Backward Classes Commission. In 2005, based on the Commission’s report, the state promulgated an ordinance declaring the entire Muslim community as backward, and providing 5% quota.
But the HC struck down the ordinance in B Archana Reddy vs State of AP (2005) on the ground that the benefit could not be extended to the whole community without proper identification of social backwardness of Muslims by the Commission.
The five-judge Bench of the HC reiterated that there is no prohibition on declaring Muslims as a community socially and educationally backward, provided they satisfy the test of social backwardness. Thus, the failure of the Commission to recognise the heterogeneity of Muslims became the basis for the rejection of its report, and of the ordinance based on it.
The state again referred the matter to the Backward Classes Commission and, based on its report, enacted a law in 2007 giving reservation to only 14 Muslim castes such as washermen, butcher, carpenter, gardener, barber, etc. Similar occupational castes of Hindus were already in the list of backwards, and enjoying reservation. The schedule of the Act explicitly excluded 10 ‘higher’ castes among Muslims such as Saiyed, Mushaik, Mughal, Pathan, Irani, Arab, Bhora, Khoja, Cutchi-Memon, etc.
But this Act too was struck down by the HC. The final word on its constitutionality is awaited from the Supreme Court.
After the bifurcation of Andhra Pradesh in 2014, the TRS government in Telangana passed a law in 2017 proposing 12% reservation for OBC Muslims on the basis of the reports of the G Sudhir Commission and the Backward Classes Commission.
The Sudhir Commission found that in educational attainment, work participation, and household-level possession of land, Muslims were behind SCs, STs and Hindus in general. Since the proposal would take reservation beyond the 50% mandated by the Supreme Court in its Indra Sawhney judgment (1992), it was referred to the central government for inclusion in the Ninth Schedule. But the Centre did not bring the proposal to Parliament.
Sachar, Misra panels
The Justice Rajinder Sachar Committee (2006) found that the Muslim community as a whole was almost as backward as SCs and STs, and more backward than non-Muslim OBCs. The Justice Ranganath Misra Committee (2007) suggested 15% reservation for minorities, including 10% for Muslims.
Based on these two reports, the UPA government in 2012 issued an executive order providing 4.5% reservation of minorities — not just Muslims — within the existing OBC quota of 27%. Since the order was issued only a few days before the Assembly elections in UP, Uttarakhand, Punjab, Goa, and Manipur, the Election Commission asked the government not to implement it. The AP High Court quashed the order, and the Supreme Court refused to stay the HC’s order.
Article 341 of the Constitution and the 1950 Presidential Order state that only Hindus are entitled to inclusion within SCs. However, Sikhs were included within SCs in 1956, and Buddhists in 1990. Muslims and Christians remain excluded. It could be argued that this too, is ‘religion-based’ reservation.
Prof Faizan Mustafa is Vice-Chancellor, Chanakya National Law University, Patna
Andhra Pradesh, 2004: Cong gave AP Muslims quota, but HC struck it down
April 24, 2024: The Times of India
Hyderabad : The issue of reservations for Muslims is back in political discourse with PM Narendra Modi accusing Congress of plotting to snatch the quota for SCs and STs and hand it to the minorities. Modi said at a rally in Rajasthan on Tuesday that this was Congress’s ‘pilot project’ in Andhra Pradesh, the first state to implement the Muslim quota.
The demand for inclusion of socially, educationally and economically backward sections among Muslims existed in undivided Andhra from the 1960s as some of the sections, like washermen and weavers, were found to be poorer and lagging behind even SCs in terms of education and socio-economic conditions.
In Aug 1994, then Congress CM K Vijayabhaskar Reddy issued a GO including some categories of Muslims such as washermen and weavers into OBC list. But the quota was not implemented. An OBC commission headed by Justice Puttuswamy was tasked to look into issue of inclusion of more Muslims into the OBC list.
Telugu Desam Party govt under Chandrababu Naidu which took over soon after kept the Puttuswamy Commission alive, giving it six terms. The commission submitted its report to Naidu govt in 2003, but it was not made public.
In July 2004, within 56 days of forming Congress govt after defeating Naidu in polls, YS Rajasekhara Reddy issued orders giving 5% reservations to Muslims, fulfilling the party’s promise in its poll manifesto. Muslims were included in the OBCs list by creating a new section — category E — over and above the existing four categories (from A to D).
YSR’s move took total quota in the state to 51% as the existing reservations under various heads — OBC categories A to D 25%, SCs 15% and STs 6% — were left untouched. In Sept 2004, Andhra HC struck down the order on the ground that it was against SC’s ceiling of 50% on reservations. In Nov 2004, YSR govt reconstituted OBC commission under Justice Dalva Subrahmanyam. And in Oct 2005, it issued an ordinance providing 5% reservation to Muslims in educational institutions and state govt jobs. The ordinance was replaced by an Act later.
In Nov 2005, a five-member bench of Andhra Pradesh high court struck down the Act. In July 2007, based on Justice Subrahmanyam’s report on socio-educational backwardness of Muslims, YSR govt promulgated another ordinance providing 4% quota to 14 categories of poor Muslims, thereby bringing reservation within the 50% limit.
This was stayed by SC with the court criticising it as an attempt to get around constitutional prohibition of reservation on the ground of religion.
However, Muslim quota backers say it is not based on religion. They argue that only 14 socially and educationally backward groups of Muslims are included — like Singali, Muslim Dhobi (washermen), Faqir, Garadi Muslim, Gosangi Muslim, Keelu Gurravallu Muslim, Hajjam, Labbi, Qureshi, Sheikh & Turaka Kasha.
Govt excluded Syed, Mughal, Pathan, Irani, Arab, Bohra, Khoja & other sections considered to be socially & educationally superior to BC Muslims.
Between 2004-5 and 2023-24, over 20 lakh Muslim students have benefitted by getting admissions in MBBS, engineering, MCA, MBA, BEd MEd and other professional courses according to official sources. Enrolment of Muslims increased in higher professional courses after getting reservations. After Telangana was formed in 2014, first chief minister K Chandrasekhar Rao promised Muslims to enhance quota from 4% to 12% in tune with their population.
On April 16, 2017, during a special session, the Telangana House passed a resolution to increase reservations for backward sections among Muslims to 12%, taking the total quota in the state to over 50%. The resolution, which also sought an increase of reservations for STs from 6% to 10%, was sent to Centre. The resolution has not been implemented as the Centre has not responded so far.
Karnataka (and Kerala and Tamil Nadu)
The 2023 scrapping of Category 2B, which exclusively included ‘Muslims,’ from the Karnataka state Backward Classes (BC) list by the BJP government has sparked off a debate .
In Karnataka, based on the Justice O Chinnappa Reddy Commission report, the Deve Gowda-led Janata Dal government reconfigured the reservation matrix in 1994. In particular, the BCs were subcategorised into Category 1 (4%), 2A (15%), 2B (4%), 3A (4%), and 3B (5%). The incumbent BJP government has scrapped 2B, which exclusively housed ‘Muslim’ as a caste, and relocated it to the EWS (10%) quota.
Simultaneously, it has rechristened Categories 3A and 3B, which included the Vokkaligas and Lingayats, though not exclusively, as 2C and 2D. The 4% released by scrapping the 2B Muslim quota has been employed to expand 2C (from 4% to 6%) and 2D (from 5% to 7%), respectively. The opposition expectedly has decried the move as another instance of BJP’s anti-Muslim stance.
However, Category 1 and Category 2A already includes many backward class Muslims and both these categories have not been tampered with. In other words, with the scrapping of Category 2B, mostly privileged Muslim castes have been relocated. Previously, all Muslim groups were included, with 2B constituting an exclusive ‘Muslim’ quota. Is an exclusive religion-based quota tenable?
Historically, the colonial practice of religion-based electorates and quotas was discarded after Independence as religion had become a suspect category due to Partition. Both the First (1955) and Second (1979) Backward Class Commissions, popularly known as the Kaka Kalelkar Commission and Mandal Commission, refrained from treating Muslims as a monolithic, socially backward community and excluded the privileged castes/groups within them. Interestingly, the central OBC list for Karnataka also excludes privileged Muslim groups like the Cutchi Memon, Navayat, Bohra, Sayyid, Sheik, Pathan Mughal, Mahdavi, and Konkani or Jamayati Muslims. However, in category 2B, the residual Muslim castes — privileged and lowered — were clubbed together, with the possibility of the former cornering the quota benefits owing to their cultural capital. If we map the BC quota framework employed by the Centre and states, Karnataka and Kerala form the glaring exceptions in having exclusive Muslim quotas.
The continuing sway of what political scientist Paul Brass phrases as the “myth of Muslim decline into backwardness” can be traced back to the Hunter Commission Report (1882), wherein the entire Muslim community was spuriously characterised as disadvantaged based on the exceptional data of Bengal. If one reads closely, all the Karnataka BC commission reports — Miller Committee (1918), Havanur Commission (1975), O Chinnappa Reddy Commission (1990), and so on—are struggling with how to account for caste among Muslims.
The scrapping of Category 2B has triggered a polarising debate. …The moralist and procedural charge of the debate must not blind us to the fact that both the insertion of 2B in 1994 by the Janata Dal government and the more recent scrapping by the BJP are politically motivated: in the former, the Ashraf sections were being appeased, in the latter, the Lingayats and Vokkaligas are.
In Kerala and Tamil Nadu, the inclusion of privileged castes like the Thangals (Syeds) and Koya in the Mappila category could be rethought.
The author is associate professor of sociology at Azim Premji University, Bengaluru. Views are personal
OBC reservations
A history
The Times of India, Aug 31 2015
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Social engg now a race for backward status
Dhananjay Mahapatra
The Morarji Desai government had set up a commission headed by B P Mandal on January 1, 1979, to identify socially and educationally backward communities to provide them with reservation in government employment. The commission, in its report in December 1980, recommended 27% reservation to other backward classes (OBCs).
In 1990, the V P Singh government dusted out the report and implemented its recommendations.Protests and judicial scrutiny could not impede the new political mantra -social engineering.
Two decades later, social engineering got a facelift when the Centre extended the 27% OBC quo ta to admissions in educational institutions. This too got the thumbs up from the Supreme Court.
Though it upheld extension of OBC quota in college admissions, the SC had expressed its view against the perpetuation of reservation. It disapproved of the politically motivated tendency to swell the list of OBCs. It had suggested a comprehensive study on OBCs to exclude those which had benefited from quota to shake off the historical social and educational disadvantages. Will a ruling party ever bite the survey bullet when elections continue to be fought on caste lines? They have scant regard for repeated SC rulings to limit the quota to 50% of the total availability of jobs or seats in colleges. In many states, it touches the 70% mark.
As space for merit shrinks in jobs and educational institutions, a cauldron of frustration is getting fuelled by competent youngsters, left behind by the not-so-competent armed with an OBC certificate. No wonder, the Jat community agitated and succeeded in getting OBC status. The SC had to step in and rescind the Centre's decision.
In the Ashoka Thakur judgment, which upheld 27% quota for OBCs in educational institutions, the SC underlined the recent trend of `forward' castes seeking `backward' status.
It warned, “When more and more people aspire for `backwardness' instead of `forwardness', the country itself stagnates.“
The SC had also warned, “While affirmative discrimination is a road to equality , care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use should not become a permanent liability .“
While striking down quota for Jats in Ram Singh vs Union of India (March 17, 2015), the SC had said the determination of social and educational backwardness to warrant award of reservation benefits to a community must be based on contemporary data and not historical perception.
The SC had asked that if government after government claimed to have achieved all round development of the country and communities, why were more and more communities getting included in the list of OBCs and not a single exclusion? Was this the meaning of all-round development that more and more communities were getting backward? No ruling party dare order a survey that would deprive communities of reservation as they fear losing votes in a geographic unit whose demographic equation has been virulently afflicted by politically crafted social engineering which has divided communities on the lines of those who have the OBC tag and those who don't.
In the Ram Singh judgment, the SC had said reservation should reach the most deserving. The yardstick to determine which community deserved reservation should be evolved using contemporary standards and must necessarily move away from caste-centric definition of backwardness, it had said.
“The perception of a self-proclaimed socially backward class of citizens or even perception of the `advanced classes' as to the social status of `less fortunate' cannot continue to be a constitutionally permissible yardstick for determination of backwardness,“ it had said.
Till political parties muster enough courage to undertake a comprehensive study and exclude communities which, through reservation, have climbed high enough in the socio-economic ladder, many Hardik Patels will emerge as rallying points for frustrated young victims of reverse discrimination.
PSU staffers’ children denied UPSC jobs under quota
Subodh Ghildiyal, December 9, 2017: The Times of India
For the fifth year in succession, the Centre has rejected the wards of OBCs employed in PSUs who passed the UPSC civil services examinations but were categorised by the government as belonging to the "creamy layer".
It is learnt that the department of personnel and training has rejected the claims of over 20 OBC candidates who were waiting to be allocated the service for training.
While the OBCs rejected for 2016 batch are said to number around 20-25, such candidates number around 50-60 over five batches since 2013. The list of 2016 batch has been finalised but OBC candidates who were dubbed as belonging to the "creamy layer", have not been allotted services, said some from the aggrieved camp. The final list of DoPT suggests likewise.
Interestingly, on Friday, the government issued a "reserve list" to fill extra 109 posts and the rejected OBCs of 2016 batch don't figure in it either. "Creamy layer" refers to the well-off among OBCs who are not eligible for Mandal reservations.
What makes contentious the simple issue of "creamy layer" is the methodology used by the central government in calculating it for wards of backwards employed in PSUs as against those working in the central and state governments.
The Madras high court in September rejected the Centre's method of calculating the "creamy layer" for candidates whose parents are working in PSUs. The HC judgement, reported exclusively by TOI, said the principle for determining "creamy layer" should be the same for PSUs/private sector and the government. Significantly, the Centre has filed an appeal against the Madras HC order in the Supreme Court, and has secured a stay.
The "creamy layer" formula lays down that Group A and Group B (except in certain conditions like age of promotion) are ineligible for quotas while others are eligible provided their annual income from other sources is not above Rs 8 lakh. The critical bit is that annual income doesn't include the salaries of parents. While the Centre has been applying this "exclusion criteria" for wards of persons employed in central and state governments, in case of PSUs/private sector, the Centre has been calculating the "creamy layer" on the basis of salaries of parents.
This "discrimination" was challenged by two successful OBC candidates in the Madras HC and is also the basis for an ongoing case in the Delhi HC. The scope for confusion stems from the fact that the Centre has not yet worked out the table to determine which posts in PSUs fall under Group A, B, C and D as happens in the government - a process called "equivalence of posts".
On August 31, the Madras HC bench of Justices H G Ramesh and G Jayachandran turned down Centre's and DoPT's challenge against the order of the Central Administrative Tribunal in favour of Rohith Nathan and G Babu whose parents worked in PSUs/private sector. They had cleared the UPSC exam but were denied OBC quotas after being ruled as belonging to the "creamy layer".
As reported by TOIon July 17, 2016, the National Commission for Backward Classes had written to the government about the anomaly, warning there could be a backlash from the backwards if DoPT officials did not rectify their methods of calculating the "creamy layer" for PSUs. In its judgment, HC has ruled that if salary of parents employed in government isn't a criteria for assessing "creamy layer", the salary of a PSU employee "as a test for identifying creamy layer brings in the element of hostile discrimination".
HC faults Centre’s exclusion of wards of PSU employees
Subodh Ghildiyal, Delhi HC slams govt’s ‘creamy layer’ criteria, March 26, 2018: The Times of India
Ruling Gives Hope To 12 OBC IAS Aspirants
The Delhi high court has slammed the Centre’s method of calculating the “creamy layer” for wards of persons from “Other Backward Classes” working in PSUs — a key reason behind the rejection of many OBC aspirants for IAS and other elite services over the last five years.
In a crucial judgment last week, the HC directed the Centre to recalculate the “creamy layer” for petitioners within eight weeks – reviving hopes that they may be able to join the civil services after being rejected earlier.
“Creamy layer” pertains to better off individuals among OBCs, who are ineligible for Mandal reservations.
The Delhi HC judgement has major implications for OBC aspirants for central services. While the order pertains to 12 OBC aspirants who cleared UPSC’s Civil Services Examination in 2015 before being turned down, it may boost the case of, by an estimate, over 60 candidates who have been rejected in last few years.
More crucially, it may have a serious bearing on the way the Centre calculates “creamy layer” for OBC children with PSU background --alleged to be “discriminatory” when compared to “backwards” employed in central and state governments.
The Delhi HC order follows a similar one by the Madras High Court in August 2017, directing the Centre to use the same formula for both categories of OBCs.
The controversy revolves around differing principles applied to determine “creamy layer”.
According to government guidelines, while Group A and Group B are ineligible for Mandal quotas, others are eligible if their annual income from other sources does not exceed Rs 8 lakh. The annual income does not include salaries of parents.
While DoPT has been determining the “creamy layer” for PSU background by including the salaries of parents, it has been excluding the salaries of parents employed in central or state governments – putting the first category at a disadvantage.
The DoPT told the Delhi HC that “creamy layer” for PSU candidates follows the principle spelt out in its communication of October 14, 2004. On the other hand, the petitioners argued that the October 14 order “discriminates the employees of PSUs visa-vis the government employees, and ought to be quashed”. In its order, the high court agreed with the petitioners.
In August 2017, the Madras HC had ruled that if salary of parents employed in government is not a criteria for assessing “creamy layer”, the salary of a PSU employee “as a test for identifying creamy layer brings in the element of hostile discrimination”. Though the Centre has appealed against the Madras HC order in the Supreme Court, it is to be seen how it reacts to the Delhi high court judgement.
The confusion over “creamy layer” is a result of the Centre’s failure to determine the posts in PSUs as falling under Group A, B, C and D as happens in the government – a process called “equivalence of posts”.
The govt’s method of calculating the ‘creamy layer’ for wards of people from Other Backward Classes working in PSUs has come in for criticism from the high court.
Only Centre can identify backward classes: SC
AmitAnand Choudhary , May 5, 2021: The Times of India
AmitAnand.Choudhary , May 5, 2021: The Times of India
The Supreme Court by a majority declared on Wednesday that only the President (read the Centre) can take decisions for declaring socially and educationally backward communities for granting reservation and upheld the 102nd constitutional amendment denuding the power of states in this regard. A five-judge Constitution bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat was unanimous on the validity of the 102nd constitutional amendment, but the judges differed on the implication of the amendment for recognising socially and educationally backward classes (SEBCs).
A five-judge Constitution bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat was unanimous on the validity of the 102nd constitutional amendment but differed on its implication for recognising socially and educationally backward classes (SEBCs).
The majority, comprising Justices Rao, Gupta and Bhat, concluded that the amendment has taken away the power of states to decide on designating SEBCs and now only the President can take a decision. However, Justices Bhushan and Nazeer held that states can also identify SEBCs and there would be two lists – central and state lists – of backward communities as has been the practice for the last 68 years. State governments have been expanding the list of SEBCs, the official jargon for “OBC status”, which entitles the recipient community to quota benefits, and the verdict means states will now be restricted to making recommendations to the Centre in favour of the “aspiring” backwards.
The response of the Centre to the verdict could be interesting. It had said the power to identify SEBCs lies with Parliament only with reference to the central list and states can have a separate list.
But the majority of the bench felt otherwise. “By introduction of Articles 366 (26C) and 342A through the 102nd amendment, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and Union territory for the purposes of the Constitution. The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities,” Justice Bhat said.
The 102nd amendment was brought to give constitutional status to the National Commission for Backward Classes and Article 366(26C) and 342-A were introduced as per which the President can notify a class as SEBC.
Justice Bhat said as per the amendment, there will be only one list and it “ can only be amended through a law enacted by Parliament”.
Justice Bhushan, however, said backward classes were all this while being identified by the respective state governments which provided reservation under Articles 15(4) and 16(4) and the same should continue. “The Constitution Bench of Indra Sawhney... held each state government is fully competent to identify backward classes and this is why the Sawhney (verdict) directed for appointment of a permanent body, both by Union as well as by the state, and consequently commissions were constituted— National Backward Classes Commission and State Backward Classes Commission. To reverse the entire scheme... a clear and explicit constitutional amendment, was necessary. There is no express indication in the 102nd constitutional amendment that the power of the state is being taken away,” he said.
Inclusion of more castes in list of beneficiaries
1989-2016: Agitations for reservations
The Hindu, September 23, 2015
1. Jats : In a 64-page judgment in March this year, a Bench of Justices Ranjan Gogoi and Rohinton Fali Nariman struck down the March 4, 2014 notification issued by the then UPA government to include the Jats in the Central list of OBCs for the nine States. Read more
2. Gujjars : Agitations by Gujjars over reservations have been a near-annual event in Rajasthan since 2006. In May this year, the Rajasthan government announced that it would provide the community 5 per cent reservation in jobs. Read more
3. Vanniyars : In 1989 the Vanniyars - along with several other communities in Tamil Nadu - were given the Most Backward Class (MBC) status. Being the single largest MBC group, this reservation benefited the Vanniyars most.
4. Patels : Riots, arrests, a curfew and eight deaths later, the mass movement now appears poised to take on a national shape. It began as a rally in Visnagar town in Gujarat early July, but two months on, the Patel-agitation for OBC status — with 22-year-old commerce graduate Hardik Patel at the helm — has galvanising tens of thousands of people across the State. Riots, arrests, a curfew and eight deaths later, the mass movement now appears poised to take on a national shape.
Quota games: The race backwards
Subodh Ghildiyal | TNN
With No Govt Daring To Carry Out Prescribed Purge Of Communities From OBC List, Purpose Of Reservations Defeated
The joke is that if Jats and Marathas are backward, then may as well put Thakurs and Brahmins on the OBC list and end the farce. With Jats recently put on the central list of backward classes, the day is not far when Marathas and Jat-Sikhs too will be in queue for quotas in jobs and education.
It’s a strange race where more and more communities, dominant in contemporary times, want to be categorized as backward castes or OBCs. The sole objective: Availing the 27% job quotas. Despite the clout of these resourceful groups, the weak-kneed political class has caved in to demands, fearing their wrath in the elections.
If UPA2 accorded Jats OBC status at its last cabinet meeting, it was after electoral calculations about how the decision would benefit the alliance. Days ago, the National Commission for Backward Classes had “rejected” the proposal, saying Jats were “not socially or educationally backward”.
Congres is not the first villain. The blame lies with former PM Atal Bihari Vajpayee who promised the community backward status on an election trail in Rajasthan and fulfi lled the promise in 1999. The irony: Rajasthan’s Jats were included in the central OBC list, but weren’t considered backward in the state.
Now, with the sounding of theelectionbugle,wordhasleaked about how the Maharashtra government is ready to carve out job quotas for Marathas. Akali Dal began demanding OBC status for Punjab’s ruling class — the Jat Sikhs.
The modus operandi is simple: Powerful groups demand backward status and up the ante around elections. Parties, wary of attracting their hostility, nod and begin seeing political wisdom in the demand. Finally, it’s clinched.
In two decades of the Mandal Commission that instituted the central quotas for OBCs, the number of backward communities has swelled from 1,352 to 2,404 castes. The race for “backwardness” and a pliant political class have played havoc with the system designed to help those weaker groups that still suffer discrimination. Experts point to a dichotomy. The farming communities were “shudras” in the caste system. Post land reforms, they’ve achieved social and economic mobility to be rid of historical stigma, says Vivek Kumar, a sociologist with Delhi’s Jawaharlal Nehru University. “These communities shouldn’t get quota benefits because most would fall in the creamy layer (economic status beyond which an OBC isn’t eligible for quotas),” he argues.
The political expediency trap is messing up the tenuous social balance. The inclusion of Jats in the OBC list in 1999 triggered the Gujjar agitation. They insisted that they be put in the Scheduled Tribe list. The agrarian Gujjars lamented that resourceful and educated Jats had cornered quota benefits at their expense.
The Gujjar push was met with resistance from Meenas, a dominant ST community that loathed a competitor for its share of tribal quota, resulting in a bloodbath between the ‘martial’ groups that put the country on edge in 2007.
Many believe the open-ended process of identifying backwards provides the opening for “motivated” inclusions in the OBC list. The government can put a deadline to the process. “65 years of independence is enough to have found the backwards,” an expert says.
While the political class has been quick to capitulate to demands, it has been reluctant to bite the bullet on “exclusion” – a purge of the OBC list of communities that have made progress with time. Section 11(1) of the NCBC Act that identifi es backwards, says the OBC list should be revised every 10 years.
The fear is that communities which have made progress and run the risk of exclusion are the ones with social and economic clout to scare the political class. Post the Jat decision, OBC activists and intellectuals lament that the endless inclusions in the backward category would render redundant the concept of reservations. Many see it as an upper caste conspiracy.
That may not be far from the truth if reservations are not uncoupled with the interests of the political class and applied strictly for the purpose they were conceived.
THE EVER-GROWING LIST
MANDAL COMMISSION
1993
27% reservation in central jobs and education. Since then, number of backward castes up from 1,352 to 2,404
Section 11(1) of National Commission of Backward Classes Act says government should, every ten years, purge the OBC list of communities that have ceased to be backward
In 20 years since Mandal came into force, the purge has not happened even once
A purge can exclude strong communities like Jats, Yadavs, Kurmis and some from south India, from the OBC list
In 1999, former PM AB Vajpayee promised Jats backward status at a poll rally in Rajasthan. The state’s Jats were included in the central OBC list, but weren’t ‘backward’ in the state. Gujjars followed with their demand for ST status
Demands for inclusion in quotas, 2016, ’17
Graphic courtesy: October 29, 2017: The Times of India
See graphic, ‘Demands from communities to be included in quotas, 2016, ’17 ’
Cannot deny reservation on the basis of a private book
In a peculiar case, the Centre relied on a book on caste composition of Uttarakhand to deny reservation benefit to OBC candidates who had passed the recruitment exam for constables in CRPF in 2010, on the ground that their castes were not mentioned under the OBC list in the book.
After a seven-year legal battle, the candidates finally won the case and an SC
bench directed the Centre to appoint them under OBC quota and admonished the government for relying on a “private book” to deny reservation benefit to them.
The Centre had notified 78 vacancies in CRPF (nine reserved for OBCs, besides 13 backlog OBC vacancies). Candidates belonging to Saini, Momin (Ansar), Gujjar and Kahar communities applied for appoi ntment under OBC quota. They cleared the exam but when resultswere declared, the government considered them in the general category on the ground that their castes were not mentioned under the OBC list in the book ‘Swamy’s Compilation on Reservations and Concessions’.
The confusion arose as the recruitment process was initiated in the same year when Uttarakhand was carved out of UP and the National Commission for Backward Classes (NCBC) had not created a separate central list of OBCs for the hill state.
The commission had said the UP list would be followed in Uttarakhand but the Centre preferredto go by the aforementioned book.
Advocate Indu Malhotra, appearing for theCentre, said only one caste was included in the central list for the state in 2010 and the candidateswere notcoveredunder it. Other OBCs were included in the central list only in 2011, she added. The NCBC, however, told the court that it had made it clear at the time that the UP list of OBCs was to be used for Uttarakhand also.
The bench said, “It is clear from the affidavit filed by NCBC that a decision was taken in 2010 to apply the central list prepared for UP to the state of Uttarakhand till the list of OBCs for Uttarakhand was finalised... There cannot be any doubt that the candidates belong to the castes included in the list of OBCs for UP and were entitled to be considered for the posts reserved for OBCs.
“This practice of relying upon private books for defeating the rights of citizens is deprecated,” it said.
States: the position in
The position in the various states
As in 2019, Jan
From: Shankar Raghuraman, Almost All Indians Can Now Have A Quota, January 8, 2019: The Times of India
See graphic:
Castes eligible in various states for central government quotas, as in 2019 January.
Andhra Pradesh
December 2017/ Andhra approves 5% Kapu quota, breaches SC’s ceiling
AP OKs 5% Kapu quota, breaches SC-set ceiling, December 3, 2017: The Times of India
The Andhra Pradesh assembly unanimously passed a legislation to provide 5% reservation for the Kapu community in government jobs and educational institutions.
Meeting a long-pending demand of Kapus, the government has included the community in the backward classes by creating a separate category ‘F’.
In the absence of only opposition party YSR Congress, which is boycotting the session, leaders of ruling Telugu Desam Party (TDP) and its coalition partner Bharatiya Janata Party (BJP) participated in the debate on the bill.
Backward classes welfare minister K Atchan Naidu tabled the bill. Chief minister N Chandrababu Naidu and other members spoke on the bill. It was later passed unanimously with a voice vote.
Naidu said his government had fulfilled a promise made to Kapus in 2014 elections. He assured the House that steps will be taken to ensure that the benefits of development and welfare schemes reached Kapus.
The state cabinet had earlier accepted recommendations of the Manjunatha Committee, which examined the demand of Kapus and suggested earmarking five per cent for them.
As this legislation will take the overall quantum of reservation in the state to over 50 per cent, the cap fixed by the Supreme Court, the state government will request the Centre to amend the Constitution and include the legislation in Schedule IX to insulate it from any court ruling.
Bihar
November 2016/ Ashoka Thakur and Jat community judgments
The Times of India, Nov 16 2015
Dhananjay Mahapatra
Bihar polls: 65-year-old war to defeat caste system bites dust
One thing was clear. As always, Bihar voted on caste lines
Chairman of the Constitution drafting committee B R Ambedkar, who himself was a victim of the caste system, led the fight against it. Ambedkar had said, “On 26th uary, 1950, we are going to enJanuary , 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality . In politics, we will be recognising the principle of `one man one vote and one vote one value'. If our social and economic structure continues to deny the principle of one man one value, how long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? “If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.“
After 65 years, can we say we have achieved the goal of wiping out caste system from our social life? The framers of the Constitution provided for reservation in public employment to backward classes to help them counter years of discrimination and slowly assimilate in the mainstream.
In the Ashoka Thakur judgment which upheld 27% quota for OBCs in educational institutions, the SC in 2008 had underlined the recent trend of `forward' castes seeking `backward' status. It warned, “When more and more people aspire for `backwardness' instead of `forwardness', the country itself stagnates.“ The SC had also warned, “While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use should not become a permanent liability .“
While striking down quota for Jats in Ram Singh vs Union of India (March 17, 2015), the SC had said the determination of social and educational backwardness to warrant award of reservation benefits to a community must be based on contemporary data and not historical perception.
2023: 75% reservation
Madan Kumar, Nov 23, 2023: The Times of India
From: Madan Kumar, Nov 23, 2023: The Times of India
75% reservation is now law in Bihar as state notifies quota bills
Second Only To TN In Quota For Deprived Classes
Patna : The Bihar government officially notified in the state gazette on Tuesday, two bills recently passed by the state legislature, aiming to raise the quota for deprived castes from 50% to 65% in government jobs and educational institutions. With these enactments, Bihar now holds the highest reservation percentage among larger states, reaching a total of 75%.
The two bills, namely the Bihar Reservation of Vacancies in Posts and Services (for scheduled castes, scheduled tribes and other backward classes) Amendment Bill-2023 and the Bihar (in admission in educational institutions) Reservation Bill, 2023, have become law after the gazette notification.
Bihar now becomes second only to Tamil Nadu to provide the highest percentage of reservation to backward classes. While Tamil Nadu offers 50%, Bihar will now provide 43% reservations for them, followed by Sikkim and Kerala with 40% each. Notably, Bihar also provides a 10% quota for the EWS among the upper castes.
According to the gazette notification, the revised reservation percentages include 20% for scheduled castes, 2% for scheduled tribes, 18% for backward classes, 25% for extremely backward classes, and the EWS will continue to enjoy a 10% quota in the state.
The amendments represent an increase in the quota for scheduled castes from 16% to 20%, scheduled tribes from 1% to 2%, extremely backward classes from 18% to 25%, and backward classes from 15% to 18%. Bihar governor Rajendra Vishwanath Arlekar had given his assent to both bills, facilitating the implementation of the new quota system. Following the gazette notification, CM Nitish Kumar urged officials to ensure the effective implementation of the increased quota percentage in state government jobs and educational institutions.
Maharashtra
No reservation for Marathas in PG medical, dental courses/ SC
May 10, 2019: The Times of India
No quota for Marathas in PG medical courses in Maha: SC
New Delhi:
There will be no reservation for Maratha community in PG medical and dental courses in Maharashtra in the current academic session as Supreme Court dismissed the plea of state govt challenging high court verdict for not allowing reservation.
The Bombay high court had ruled that the state government's notification dated March 8, 2019 regarding socially and economically backward castes (SEBC) quota in health science courses would not be applicable to PG dental and medical admissions since the registration process for NEET began on October 16 and November 2 in 2018.
Challenging the order of the HC, state government moved SC but it refused to grant any relief and accused the government of “creating a mess” by allowing reservations in the middle of the admission process. The court directed the state to revise the merit list and extend the counselling for admissions by one week. TNN
SC: Maratha quota Unconstitutional/ 2021
May 5, 2021: The Times of India
‘Unconstitutional’ Maratha quota quashed by court
In a setback to the Maharashtra government, the Supreme Court on Wednesday declared the state law to grant reservation to Maratha community as unconstitutional and held that the community is not socially and educationally backward to be eligible to be brought within the ambit of affirmative action, reports Amit Anand Choudhary.
A five-judge Constitution bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat was unanimous in its view on the unconstitutionality of the law and quashed it on various grounds, including breaching of the 50% quota rule.
The SC rued that even after 70 years of Independence, more and more people and communities are vying to be declared as “backward” to get reservation benefits.
Verdict will put Sena-led govt in a spot
The decision will cause disquiet in the politically influential community and put the Shiv Sena-led government in a spot even as it will most likely look for avenues to appeal. However, the ruling is unlikely to be altered, and the law — brought in by the previous BJP-Sena government — is likely to remain a non-starter. Ironically, it is Sena, which will have to deal with the political hot potato.
The state had framed the law on November 30, 2018 granting 16% quota for Marathas in government jobs and admission in educational institutions in response to a sustained agitation. While upholding the law, the Bombay high court on June 27, 2019, directed the government to bring it down to 12% for education and 13% for jobs as recommended by a state-appointed backward class commission.
But on examining all data pertaining to social, educational and political status of Marathas in the state, the SC, in its judgment, said both the HC and the Commission erred in concluding that they are a backward community. The SC also noted that majority of the legislature belongs to the Marathas —out of 19 CMs, 13 were from the community.
“The representation of Marathas in public services in Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53%, computed from out of the open category filled posts, and is adequate representation of the community. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to be not adequate in public services,” Justice Bhushan said in his order. The SC, however, made it clear people who availed of Maratha quota in government jobs and admission in educational institutions during pendency of the case will not be affected.
2021: No review of 50% cap, quota for Marathas invalid/ SC
AmitAnand Choudhary , May 5, 2021: The Times of India
From: AmitAnand Choudhary , May 5, 2021: The Times of India
The Supreme Court on Wednesday refused to re-examine its 1992 verdict, which put a cap of 50% on quota, turning down the plea made by various states that the ceiling fixed by court be scrapped and they be allowed to grant reservation beyond it.
A five-judge Constitution bench said its three decadeold verdict in the Indra Sawhney case has stood the test of time. The bench, comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, unanimously decided that the quota cap was fixed “to achieve principle of equality and with an object to strike a balance which cannot be said to be arbitrary or unreasonable”.
50% cap can be breached only in extraordinary cases, says SC
To change the 50% limit is to have a society which is not founded on equality but based on caste rule. Democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be a slippery slope, the political pressure makes it hard to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets,” Justice Bhushan said in his judgment.
The verdict may have implications on reservation to economically weaker sections (EWS), which also breaches the 50% rule and the matter is pending before SC. Almost all the state governments put up a united front before the apex court to press for removal of the cap. The bench, however, stood firm, holding that that the 50% cap can be breached only in extraordinary and exceptional cases.
“What was held by the Constitution Bench in Indra Sawhney case on the relevance and significance of the principle of stare decisis clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this court. The Constitution Bench judgment of this court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration,” the bench said while rejecting the plea of state governments, including that of Maharashtra, for referring the issue to a 11-judge bench.
“There can be no quarrel that society changes, law changes, people change but that does not mean that something which is good and proven to be beneficial in maintaining equality should also be changed in the name of change alone,” the court said as it rejected the plea that the changed dynamics of society warranted that the 50% quota was scrapped.
Marathas chief beneficiary of EWS quota in Maharashtra
2022-23
Priyanka Kakodkar, Oct 29, 2023: The Times of India
From: Priyanka Kakodkar, Oct 29, 2023: The Times of India
MUMBAI: Even as the Maratha quota demand rages, data shows that the community is the biggest beneficiary of the quota for the Economically Weaker Section (EWS) in Maharashtra government jobs and educational institutions.
The 10% EWS quotawas introduced by the Centre in 2019 for all sections that did not benefit from other quotas like SC, ST and OBC reservation and had an annual family income below Rs 8 lakh.
In 2021, when the apex court struck down the Maratha quota, the state government allowed Marathas to avail of the EWS quota.
Data on admissions to educational institutions under the EWS quota in the state through its Common Entrance Test (CET) in 2022 showed that the largest share of candidates or 78.6% were from the Maratha community. Of the total 20,117 admissions, an estimated 15,807 were from the Maratha community and only 4,310 were from other communities. The data was presented to the state's cabinet sub-committee on Maratha reservations.
In 2023, as many as 76.7% of admissions under the EWS quota through the CET were from the Maratha community. Of the 11,302 admissions, 8,664 were from the Maratha community and only 2,638 were from other communities.
Similarly, in the state government jobs filled through the EWS till between 2019 and 2022, 84.3% of the openings went to candidates from the Maratha community, the data shows. Of the 650 jobs filled through the MPSC through the EWS quota between 2019 and 2022, as many as 548 were from the Maratha community. Only 102 were from other communities.
However, leaders of the community said that the EWS quota puts Marathas in competition with other minority communities for the quota which is why they want a separate quota.
Rajasthan
2015: 68%
The Times of India, Sep 23 2015
Raj govt breaches 50% bar, quota now at 68%
The Rajasthan assembly passed two bills granting 5% reservation to Gujjar-led special backward classes (SBC) and 14% to economically backward classes (EBC), taking the total quota quantum in the state to almost 68% -well over 50%, the ceiling that twice got quota laws of the state rejected. The Vasundhara Raje government also pushed through resolutions urging the Centre to place the twin bills in the 9th schedule of the Constitution to buffer them from legal scrutiny.
Raje's decision came a day after Mohan Bhagwat stirred a storm by suggesting that the reservation system be reviewed. In hiking reservations in jobs and educational institutions, Rajasthan chief minister Vasundhara Raje may have been moved by her state-level compulsions.
But the controversial move of the saffron satrap who just fended off a determined Congress bid to corner her on her links with controversial cricket administrator Lalit Modi may also help the party outside the state, especially because of its sheer timing.
The state government secured passage of the two bills designed to reserve another 19% of seats in educational institutions and government jobs, that is, over and above the 49% already “reserved“.This comes at a time when the BJP is under attack from its opponents over Mohan Bhagwat's remarks on reservations.
Bhagwat's comments suggesting that quotas needed to be de-politicized and the issue of who all should get reservation benefits be examined by a group of experts have been interpreted by BJP's diverse opponents as Sangh Parivar's alleged opposition to reservations.
The charge, if it sticks, can play havoc with BJP's prospects in assembly elections in Bihar where both JD(U) and RJD have tried to revive the Mandal faultlines and turn the contest into a backward versus forward affair. However, Raje's action, cynical in terms of its brazen disregard of the Supreme Court-mandated 50% cap on quotas as well as the certainty of it being struck down by judiciary at the first turn, serves the purpose of showing that BJP can travel to the same extraor dinary lengths as its rivals to appease the clamour for quotas.
Bhagwat's remarks caught BJP unawares not just because they coincided with the party's determined drive to wrest control of Bihar with the help of a rainbow coalition comprising upper castes, OBCs sans Yadavs and Kurmis, most backward castes and Dalits.
His comments on reservations, certainly the way they were portrayed in certain quarters, interferes with Sangh Parivar's plans to make inroads among Dalits, a project which has got underway with an outreach to the Scheduled Castes and the canonization of B R Ambedkar in the saffron pantheon.
In the last Lok Sabha elections, the BJP outpolled Congress among Dalits with Modi's projection as an OBC contender for prime minister helping the party net backwards which had been alien territory for it.
“In Bihar, BJP has OBC leaders like Sushil Modi, Nand Kishore Yadav and Prem Kumar who have always occupied top positions. We have always received significant support from MBCs and Dalits who were given short shrift by parties which serves the interests of individual caste leaders and so people will laugh at the suggestion that we, that too at a time when our PM is an OBC himself, are opposed to quotas.That said, however, the remark was avoidable,“ said a BJP functionary who insisted on anonymity .
Gujjars
The Indian Express, December 10, 2016
Mohammad Hamza Khan
Rajasthan High Court strikes down Gujjar reservation
The court pointed out several flaws in the SBC reservation while saying that the ceiling of 50 per cent can be exceeded in exceptional cases. The Rajasthan High Court struck down five per cent reservation for Gujjars and four other castes under the Special Backwards Classes (SBC) category, underlining that reservation should not be provided “to achieve political goals”.
“Five castes (Gujjars, Banjaras, Gadarias, Raikas and Gadia Lohars), earlier falling in the category of OBCs and getting benefit of reservation, have been brought in the category of SBCs to provide five per cent reservation exceeding the ceiling of 50 per cent,” the court said. “…it is not that the Gujjars/Gurjars and others were having no representation either for admission in the educational institutions or in services.’’
The court noted that data for establishing the backwardness of the five communities had not been collected to the extent required. “In those circumstances, recommendation of the SBC Commission (for reservation) can be said to be perverse,” the court said. “The SBC Commission and the state government have failed to discharge their obligation as per the directions of the apex court to collect quantifiable data.’’
The court pointed out several flaws in the SBC reservation while saying that the ceiling of 50 per cent can be exceeded in exceptional cases. It added that reservation “should not be made solely based on caste’’. The court observed that reservation to achieve political goals results in caste-based agitations. “It was recently seen in the state of Haryana where agitators disrupted normal life of the citizen.’’
The law granting the reservation was passed last year taking the reservation in the state to 54 per cent.
Rajasthan Gujjar Aarakshan Sangharsh Samiti leader Himmat Singh Gujjar said community will agitate again. “We will agitate the same way as before,” he said. “There is BJP government at the Centre and in the state and we kept telling them to see to it that that the (reservation) Act is included in the Ninth Schedule of the Constitution (to make it immune to judicial scrutiny),’’ he said.
Rajasthan to hike OBC quota to 26% including Gujjars
The Vasundhara Raje government reached an agreement with Gujjar leaders, assuring them to split the other backward class (OBC) quota, after increasing it from 21% to 26%. From the increased OBC quota, 5% will be granted to the five “most backward“ OBC communities, which includes Gujjars and four others that were earlier grouped as the special backward classes (SBC).
Under the new arrangement, there will be no SBC category as it does not have constitutional approval. Instead, there will be OBC and `Most OBC' categories.
The government will bring in a bill to this effect in the state assembly during the upcoming monsoon session.
The decision was finalised after a ministerial sub-committee's talks with Gujjar leaders, including Kirori Singh Bainsla, late Thursday night. During the earlier round of talks last week, Gujjars had threatened to re-launch their quota agitation. By increasing the OBC quota from 21% to 26%, the total reservation in the state would once again shoot to 54%. As per Supreme Court guidelines, the total quota in jobs and institutes for reserved categories in the state cannot go beyond 50%.
Rajasthan, Oct 2017: OBC quota is 26%; breaches 50% limit
Raj raises OBC quota to 26%, but breaches 50% limit, Oct 27 2017: The Times of India
The Rajasthan assembly passed a bill providing 5% reservation for Gujjars and four other communities in jobs and education by enhancing quota in the OBC sub group from 21% to 26%. But this could be legally challenged as it takes the total reservation in the state to 54%, more than the permissible 50% fixed by the Supreme Court. The total quota breakup in the state now reads: OBC 26%, SCs 16% and STs 12%. The state government had tried to provide additional quota to these communities twice earlier, but the moves were struck down by the Rajasthan high court on technical ground.
Rajasthan, Dec 2017: 1% quota for Gujjars, 4 other communities
Rajasthan gives 1% quota to Gujjars, 4 other communities, December 23, 2017: The Times of India
The Vasundhara Raje government on Friday announced one per cent reservation for Gujjars and four other castes by creating a new category — most backward classes (MBC). This will take the total reservation in the state to 50%, which is the limit for quotas permitted by the Supreme Court.
The move is aimed to woo Gujjars ahead of byelections to the Alwar and Ajmer Lok Sabha constituencies in a few months as well as assembly elections which are scheduled in the state by November. However, Gujjars have rejected the government move saying that it wants nothing short of 5% quota exclusively for the community within the 50% limit.
The government announced the creation of MBCs through a notification on Friday and included Gujjars, Banjara, Gadia-Lohar, Rebari and Gadaria in it. “These communities were identified as the most backward by the OBC Commission and on the basic of the Commission’s report, they have now been provided with 1 per cent additional reservation under the MBC category. Along with this 1 per cent, they will continue getting quota benefits under the other backward classes (OBC) category,” Rajasthan minister for social justice and welfare Arun Chaturvedi said.
Telangana
SC/ST/OBC quota for rural polls kept within 50%
KCR govt limits SC/ST/OBC quota to 50% for rural polls, December 17, 2018: The Times of India
The Telangana government has promulgated an ordinance restricting reservations to a maximum of 50% for Scheduled Castes, Scheduled Tribes and other Backward Classes to enable conduct of elections to panchayat raj institutions in the state. The Telangana Panchayat Raj (Amendment) Ordinance, 2018, was signed by state Governor ESL Narasimhan.
“In pursuance of the judgments of the Supreme Court, the upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self government,” reads the new “Chapter-VIII-A” inserted in the ordinance.
“Accordingly, the seats and offices to be reserved for Backward Classes shall be so determined duly keeping in view the requirement of reservation in respect of SCs, STs therein, that the total number of seats/offices reserved for the SCs, STs and Backward Classes (BCs) shall not exceed 50% of the total number of seats or as the cases may be, in the respective local bodies, in the manner prescribed,” it said.
The Hyderabad high court had directed the Telangana government to complete the election process for the members of gram panchayats and the offices of the sarpanch in the gram panchayats within three months from October 11.The term of the local bodies ended on August 1 this year.
The state government then moved the Supreme Court seeking permission to enhance the total quota to 67 per cent, beyond the 50% ceiling fixed by the top court, which was rejected.
The government wanted to raise the total quota percentage in proportion to population of the backward classes in the state.
Earlier, the Telangana Panchayat Raj Act-2018 enacted by the state legislature provided reservations of seats and offices in gram panchayats, mandal praja parishads and zilla praja parishads in favour of members belonging to Scheduled Tribes/Scheduled Castes on the basis of their proportionate percentage in population, to the total number of seats and offices.
The Act also provided that the number of seats and offices reserved for Backward Classes shall not be less than 34% of the total number of offices of the members in such Panchayat Raj bodies in the state. The Telangana Assembly was dissolved in September this year before the expiry of its term. In the assembly elections , the ruling TRS under K Chandrashekar Rao retained power.
UP
2019/ 17 OBC boatmen castes included in SC list
Subodh Ghildiyal, July 8, 2019: The Times of India
The UP government’s decision to include 17 OBC castes of ‘boatmen’ in the Scheduled Caste list seems to suggest that the BJP-ruled state may have junked its plan for sub-categorisation of the backward castes list.
Amid political brouhaha, the Centre took the step of censuring the state in Parliament by calling its move “unconstitutional”. But the principal question remains as to what made the state virtually amend the SC list that is the exclusive domain of the Centre. The 17 castes fall in the informal bracket of ‘Most Backward Castes’ among the OBCs and would be the prime beneficiary of subcategorisation of OBCs.
UP had set up a committee on sub-division of backwards and the panel submitted its report a few months ago. The 17 castes are Mallah, Kashyap, Kumhar, Dheemar, Bind, Prajapati, Dheevar, Bhar, Kewat, Batham, Kahar, Machhua, Rajbhar, Nishad, Turha, Manjhi and Gaudia. Sub-categorisation is designed to meet the demand for equitable distribution of reservation benefits. Under this scheme, the OBC list is divided into groups of castes according to their socio-economic status and the 27% Mandal quota is apportioned among them in proportion to their share in the backward population. The ‘boatmen’ MBCs have not benefited from affirmative action because they are unable to compete against the strong backward castes for the same 27% Mandal quota pie.
Experts argued that if UP wanted to help the MBCs, it should have taken the sub-categorisation route. That it has not done so appears to suggest that the BJP regime may have junked the proposal it had announced with much fanfare after the Adityanath government took office two years ago.
The case of ‘boatmen/ machhua’ castes is an old one, with SP leader Mulayam Singh Yadav having tried to include them in the SC list twice during his governments in 2005 and in 2017 when his son Akhilesh Yadav was CM.
While the Centre blocked the move in 2006, it was struck down by the high court the second time. Interestingly, the Registrar General of India rejected UP’s proposal in 2005, contending that the 17 castes did not pass the test of “untouchability” that is indispensable for a community to be declared as SC.
Later, the state submitted a research report on the 17 castes to bolster its case. However, the RGI again rejected the proposal, concluding that the study done by UP did not establish untouchability among these communities.
Part B
Categories that are not eligible
NRIs
Dhananjay Mahapatra, October 23, 2020: The Times of India
In a scathing attack on NRI quota in admissions to prestigious National Law Universities, the Orissa high court said it was like reservation for the elite class and termed the process of admissions under this category “unregulated, dubious and unconstitutional”.
What irked a bench of Justices S Panda and S K Panigrahi was that students under NRI quota managed to get seats with low marks, depriving a meritorious general category student with better marks. “Several studies reveal that the selection process under this NRI quota is quite vague, undefined and is based on inconsistent parameters,” the bench said.
Rejecting a candidate’s eleventh hour plea that technical glitches in the Common Law Admission Test (CLAT) website did not permit correction of her category from ‘general’ to ‘NRI’, resulting in her not getting an NLU seat, the bench asked the Bar Council of India (BCI), consortium of NLUs and other stakeholders to revisit the “so-called NRI quota and prepare a proper regulation and system" for implementation of this quota. Every year, lakhs of students appear for CLAT.
“We are constrained to observe that the NRI-sponsored category is an affront to meritorious candidates who toil day and night to secure seats in NLUs through CLAT. Candidates belonging to the category of NRI/NRI sponsored, who are very low ranked in the merit list, often get seats in NLUs while general candidates having secured better marks lag behind the NRI students and get disappointed,” the HC said.
Committees’/ commissions’ recommendation
2018, UP: Only 7% be given to Yadavs, Kurmis
The four-member social justice committee set up by the BJP government in UP for categorising various sub-castes within OBC has suggested that of the total 27% quota meant for OBCs, only 7% reservation be given to Yadavs and Kurmis. The panel is of the opinion that the two castes are not only culturally but also economically and politically influential.
Yadavs form the core vote base of Samajwadi Party while Kurmis happen to be key voters of BJP ally Apna Dal.
The committee, headed by Justice Raghvendra Kumar, has in all categorised OBCs into 79 sub-castes. The report is likely to be tabled by backward welfare minister and BJP ally SBSP’s chief Om Prakash Rajbhar in the winter session of the UP assembly which is scheduled to start from Tuesday. Rajbhar has also threatened to launch a mass agitation beginning December 24 if the recommendation of the panel report is not made applicable ahead of the Lok Sabha polls.
The report, submitted to the UP government, has given maximum mileage to More Backward Castes including Lodhs, Kushwahas and Telis, proposing 11% reservation for them. The 400-page report (of which TOI has a copy) says employment opportunities to More Backward Castes were just half of their population.
The Most Backward Castes like Rajbhar, Ghosi and Qureshi (among the Muslim community) are proposed to be given 9% reservation, the report says. According to the report, these communities are either engaged in class III or class IV category jobs or are completely jobless.
The report points out that some of the sub-caste within the OBC got socially, economically and educationally stronger after getting benefited by reservation provisions. The increase in their population and education level made them politically influential. It adds: “It has been seen that only a few sub-castes have been able to get benefit of reservation, while most of them have been left out.”
Creamy layer
Income criterion
OBC creamy layer raised to Rs 8 lakh/ 2017
HIGHLIGHTS
The Commission is expected to submit a report within 12 weeks of the appointment of a chairperson, Jaitley said
The NCBC has recommended 3 sub-categories of OBCs
The recommendation was made to distinguish between extremely backward classes and 'forward' groups among the OBCs.
NEW DELHI: The government will soon set up a commission to examine the sub-categorization of 'Other Backward Classes', or OBCs, even as it has raised the OBC creamy layer criterion to Rs 8 lakh from Rs 6 lakh, announced finance minister Arun Jaitley.
The commission is expected to submit a report within 12 weeks of the appointment of a chairperson, Jaitley added. The National Commission for Backward Classes (NCBC) has in its report to the government recommended sub-categorisation within the OBCs into three categories, reported PTI in July.
The NCBC has recommended sub-categorisation within OBCs into Extremely Backward Classes (Group 'A'), More Backward Classes (Group 'B') and Backward Classes (Group 'C'), MoS for Social Justice and Empowerment Krishan Pal Gurjar said. "It has been recommended that the Extremely Backward Classes should be grouped into a separate group which could include aboriginal tribes, vimukta jatis, nomadic and semi- nomadic tribes, wandering classes etc," the minister said.
The recommendation was made to distinguish between extremely backward classes and 'forward' groups among the OBCs. "This has been recommended on the grounds of equity and fair play by not equating these Extremely Backward Classes with the forwards among the backward classes," said the minister.
Income alone can’t be the criterion: SC/ 2021=
AmitAnand Choudhary, August 25, 2021: The Times of India
Holding that annual earnings cannot be the sole criterion for identifying the ‘creamy layer’ among backward communities to deny reservation, the Supreme Court held that it has to be done on the basis of a mix of social, economic and other relevant factors and not the economic criterion alone.
A bench of Justices L Nageswara Rao and Aniruddha Bose quashed 2016 notification by the Haryana government by which sections of backward classes earning above Rs 6 lakh per annum were to be considered as ‘creamy layer’. The bench said the decision of the state government was in violation of the principles laid down by the SC in Indra Sawhney case.
The court said the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016, makes it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors but the the state wrongly sought to determine ‘creamy layer’ solely on the basis of economic criterion and has committed a “grave error” in doing so. “Therefore, we quash the notification, giving liberty to the state government to issue a fresh notification within a period of three months from today after taking into account the principles laid down by this court in Indra Sawhney case and the criteria mentioned in Section 5(2) of the 2016 Act for determining creamy layer,” the bench said. The court, however, said admissions to educational institutions and appointment to state services on the basis of the notifications shall not be disturbed.
The SC noted that the notification issued by the state in 1995 was in tune with the judgment in Indra Sawhney case but the 2016 notification was in violation of the verdict.
“The said notification excluded certain persons who held constitutional posts and those who were in employment of the state and the Centre in higher posts from the benefit of reservation. In addition, the social advancement of other categories was taken into account for the purpose of including such categories in ‘creamy layer’. Strangely, by 2016 notification, the identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. In clear terms, this court held that the basis of exclusion of ‘creamy layer’ can’t be merely economic,” it said.
The court said it was held that persons from backward classes who occupied posts in higher services like IAS, IPS had reached a higher level of social advancement and economic status and were not entitled to be treated as backward.
2018: PSU (creamy layer) wards do not get reservation in civil services
Axe On 29 OBCs Despite HC Flaying Govt’s Method Of Calculation
The concept of “creamy layer” for one group of OBCs — wards of employees of PSUs — continues to be muddled. In keeping with past years, the government has again deprived reservation benefits to 29 successful OBCs in UPSC examinations for elite services like the IAS and IPS.
Twelve OBCs were left out of the UPSC list in 2012, 11 in 2015 and four in earlier years, as per the figures compiled by the aggrieved group.
Crucially, the axe on these OBCs this year comes despite a Delhi high court judgment in March which slammed the Centre’s method of calculating the “creamy layer” for wards of employees of PSUs.
At the heart of the controversy lies what has been termed “hostile discrimination”. “Creamy layer” identifies the better off individuals among OBCs, ineligible for Mandal reservations.
However, the Centre in recent years has resorted to different methods to calculate “creamy layer” for employees of central and state governments, and of PSUs.
According to government guidelines, while Group A and Group B are ineligible for Mandal quotas, others are eligible if their annual income from other sources does not exceed Rs 8 lakh. Importantly, the annual income does not include salaries of parents.
While DoPT has been determining the “creamy layer” for PSU background by including the parents’ salaries, it has been excluding the salaries of parents employed in central or state governments — putting the first category at a disadvantage.
Disagreeing with the discrimination, the Delhi HC had ruled that the government employ similar formula for all categories of backward candidates. But if the “service allocation list” of 2017 UPSC exam is any evidence, the government has not changed its method.
Shashank Ratnoo, an advocate in the case who is also an aggrieved UPSC candidate, said, “There is no stay on the court order. The government did not change the method to calculate the creamy layer for PSU candidates even for the 2016 batch. We have filed a contempt petition. It has done it again for the 2017 batch.”
Before the Delhi HC order, the Madras HC had in August 2017 directed the Centre to use the same formula for both categories of OBCs. However, the Madras order was stayed by the court.
The DoPT had told the Delhi HC that “creamy layer” for PSU candidates follows the principle spelt out in its communication of October 14, 2004. On the other hand, the petitioners argued that October 14 order “discriminates the employees of PSUs vis a vis the government employees, and ought to be quashed”. In its order, the HC agreed with the petitioners.
Twelve people from the OBC category were left out of the UPSC list in 2012, 11 in 2015 and four in earlier years, as per compiled figures
Exclude ‘creamy layer’ from SC/ST reservations: SC, 2018
Dhananjay Mahapatra, September 27, 2018: The Times of India
But Gives Relief On Quota In Promotions
In a historic decision, a five-judge Constitution bench of the Supreme Court ruled that the “creamy layer exclusion” principle, till date applied only to OBCs, can be extended to Scheduled Castes and Scheduled Tribes to deny reservation to the “elite” among these underprivileged communities.
The order of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra overshadowed the relief they gave to the Centre, states and SC & ST government employees in exempting states from collecting quantifiable data on backwardness to justify reservation in promotion for the two categories.
The bench said their backwardness has been recognised as inherent to them after statutorily provided scrutiny to warrant inclusion in the list of scheduled communities under Presidential Order to get reservation benefits.
The requirement to furnish quantifiable data, laid down by the apex court in the M Nagraj case in 2006, to justify reservation in promotions for SC & ST employees has held up elevation of serving employees from the two categories, leading to restiveness in their ranks. But the extension of “creamy layer” criterion is sure to temper the happiness over the bench doing away with the mandatory requirement to back up the case for promotion in quota by marshalling data on backwardness.
‘Creamy layer shouldn’t bag all coveted jobs’
The CJI -led bench unanimously agreed to extend the “creamy layer exclusion” principle to SCs and STs and said: “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,” it said.
“The caste or group or subgroup 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 are excluded from the benefit of reservation,” Justice Nariman wrote for the bench.
While doing away with the stipulation to collect data to justify quota in promotion for SCs & STs, the bench turned down the demand of the petitioners for reconsideration of the Nagraj judgment. In upholding the validity of Article 16(4A) providing promotion in reservation to SC and ST government employees, the SC had in the Nagraj case put three caveats that almost turned out to be a spanner in its implementation.
Writing the unanimous 58-page judgment for the bench, Justice Nariman said the Nagraj ruling need not be sent for reconsideration to a sevenjudge bench while correcting the only mistake in it.
The position in 2019
Subodh Ghildiyal Times of India
After denying elite civil services jobs to over 60 successful candidates, the Modi government has tied itself in knots over application of creamy layer for OBCs whose parents work in PSUs.
In the just-concluded Parliament session, the social justice ministry told Lok Sabha that it does not include “salaries” in the “wealth test” to decide if an OBC from PSU background belongs to “creamy layer”.
“Creamy layer” is the segment of OBCs which is considered economically advanced and is ineligible for 27% Mandal reservations.
Replying to a question, junior minister for social justice Krishan Pal Gurjar cited the guiding charter on determining creamy layer (1993 Office Memorandum) which states that income from “salaries” and “agriculture” is not taken into account to compute the “annual income” of a family. He mentioned the norm was followed even if “equivalence” of posts between PSUs and government was not done. Additionally, he cited a 2004 OM issued by DoPT to stress that “salaries” are not included in deciding the “creamy layer”.
However, the reply contradicts the practice followed by the Centre since the DoPT has been treating OBCs from PSU background differently from those working in state or central governments.
While in case of former, it has been factoring in the “salaries” of parents, in case of latter, it has been exempting “salaries” — thereby putting PSU candidates at a serious disadvantage.
The said distinction has cost elite civil service jobs, conducted by the UPSC like the IAS, IFS, IPS and Indian Revenue Services, to over 60 candidates since 2014.
So much so, the Centre defended the practice after the Delhi and Madras high courts slammed it as discriminatory and directed the Centre to exclude “salaries” to decide “creamy layer” for OBCs whose parents work in PSUs and banks.
In 2017, the Centre filed an appeal in the Supreme Court against the Madras HC order in which it argued that government norms lay down that “salaries” will be taken into account for computing the annual income in case of PSUs where “equivalence of posts vis-a-vis government” has not been done.
“Equivalence of posts” implies identifying posts in PSUs as Group A/B/C/D like in the government.
The 1993 OM states that Group A and B (with caveats) are “creamy layer” while others are subjected to “wealth test” as per which those with annual income above Rs 8 lakh are ineligible for quotas. It clarifies that “income” does not include “salaries” of parents and “agricultural income”.
Given by social justice ministry in Lok Sabha on December 10, the reply stresses that “salaries” are not taken into account even in the absence of “equivalence” of posts in a PSU. Dragging on for over five years, the creation of two categories among OBCs — those working in government and in PSUs — has triggered a crisis.
In March 2019, Union law ministry had given an opinion to the parliamentary committee on OBC welfare that “salary” and “agricultural income” should not be included in the “wealth test” of OBCs whose parents work in PSUs and banks.
Law ministry’s opinion/ 2019
The law ministry has said that “salary” and “agricultural income” should not be included in the “wealth test” of OBCs whose parents work in PSUs and banks, to determine if he belongs to the “creamy layer” — an opinion which can upend the Centre’s stance on the issue which has created a permanent source of career crisis for the youth of this category.
Agreeing with the law ministry’s opinion, Parliament’s “committee on welfare of OBCs” has told the Centre that it should ensure that “salaries” and “agri income” are not considered in the “wealth test” for any category of OBCs.
“Creamy layer” is the section of backward castes which is considered economically advanced and ineligible for reservations. The department of personnel and training has been treating the OBCs from PSU background differently from those working in state or central governments.
The guiding charter (1993 OM) has laid down that Group A and Group B (with caveats) are ineligible for quotas while others are eligible provided their annual income is not above Rs 8 lakh. It states that annual income does not include the “salaries” of parents and “agricultural income”.
The Centre has been applying this “exclusion criteria” for wards of persons employed in central and state governments, but in case of PSUs and banks, the Centre has been calculating the “creamy layer” on the basis of salaries of parents, putting the latter at a disadvantage.
While the high courts of Madras and Delhi had slammed the Centre and asked them to apply the same principle for both categories of OBCs, the government chose to file an appeal in the Supreme Court.
Now, the law ministry has given a categorical opinion contradicting the Centre’s stand.
To a clarification sought by Parliament’s “committee on welfare of OBCs” through Congress MP B K Hariprasad, the law ministry said that “category II-C” (PSUs/banks etc) would be subjected to the “wealth test” (section VI) mentioned in the 1993 OM. It has said that exclusion of “salaries and agri-income” counts for both the categories.
It contradicts the stance taken by the DoPT in its affidavit in the SC — that not clubbing of “salary” and “agri-income” was not applicable to OBCs from PSU background.
The law ministry has said that ‘salary’ and ‘agricultural income’ should not be considered for the ‘wealth test’ of OBCs whose parents work in PSUs and banks
Why defining creamy layer bar is difficult
January 9, 2019: The Times of India
As a debate rages over whether a Rs 8 lakh income limit for accessing the proposed 10% quota for the economically weak is too generous, studies show that the narrowing income gap, particularly between OBCs and general castes, makes exclusion a problem for the existing quotas too.
It was after considerable negotiations that the creamy layer income criteria for OBCs was raised to Rs 8 lakh in 2017 after a gap of four years. The process faced resistance of backward groups which pointed to the castebased essence of the Mandal recommendations even as equitable access remains problematic.
With the closing of income gaps between OBCs and general castes, the number of those likely or who are eligible to benefit from reservations is broadly comparable to those in the non-reserved sections.
The Rs 8 lakh income bar for the new quota mirrors the existing creamy layer regulations for the OBC quota and a study by a non-profit People Research on India’s Consumer Economy (PRICE) shows that the weighted intra-caste deviation in income between OBC and general caste household in metros was 160 and 177 where the average all-India national income of a little under Rs 2 lakh was taken as 100.
The study, released in 2014, reflects trends that have not altered much. In boom towns, the ratio is 167 and 163 and for developed rural areas it is 156 and 136. For emerging rural areas it was 87 and 97. Overall the weighted scores are 97 for OBC and 122 for GCs.
The government has argued that the Rs 8 lakh limit is taken from the creamy layer criteria and even a monthly income of around Rs 66,000 is not enough to support professional education for children. With incomes of OBC households looking more comparable, the gains and losses of the income bar might be similar too.
In its more recent 2016 pan-India survey, PRICE has noted that average incomes are much lower than anticipated among various consumer groups. Going by middle class characteristics like regular earnings, ownership of vehicles and appliances, a large section of population does not qualify.
Separating the “true” middle class and the rich, there is a large swathe of middle India. In this ‘in between’ section, barely 20% have regular salaried jobs. The average income is around Rs 15,000 a month. The study found that the richest 20% account for 45% of income.
Double reservation benefit
SC upholds UPSC ban
SC upholds UPSC ban on double reservation benefit
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
New Delhi: The SC upheld the validity of a civil services examination (CSE) rule virtually stopping double quota benefit for reserved category candidates who qualify on merit after competing under general quota.
A bench comprising Chief Justice K G Balakrishnan and Justices S H Kapadia, R V Raveendran, B Sudershan Reddy and P Sathasivam quashed a Madras High Court order which had termed the CSE rule 16(2) as unconstitutional. Rule 16(2) provides an opportunity to reserved category candidates, who rank among the general category, to fall back on their backward class status and improve their service choice. The improved service so availed by the reserved category candidate would then be counted against the quota posts specified for that service.
For example, if a reserved category candidate secures a rank in general category that fetches him Indian Revenue Services, then he could avail his backward status to improve his service and even get IAS.
Under Rule 16(2), the IRS post so vacated by the candidate by falling back on his SC, ST or OBC status, would then be offered to a general category candidate next in the waiting list. The HC had termed Rule 16(2) as unconstitutional as it was detrimental to the intention of socially affirmative action provided under the law.
Challenging this judgment, the Centre and a host of petitioners termed the HC ruling anomalous. Appearing for one of the petitioners, advocate Anirudh Sharma had argued that it would amount to giving reservation over and above the specified percentage of posts reserved for SCs, STs and OBCs. The SC had on June 1, 2008, stayed the HC judgment.
Writing the unanimous verdict for the five-judge bench, CJI Balakrishnan said, “Candidates who avail the benefit of Rule 16(2) and are adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservations.”
Economically backward/ weaker classes quota
Unconstitutional, contrary to fundamental rights: Guj HC
The Times of India, Aug 05 2016
HC quashes Guj's 10% upper caste quota
In a setback to the Gujarat government, the high court here has quashed the former's decision to set aside 10% quota within the general category for upper caste families with low income of up to Rs 6 lakh per annum.
A division bench of Chief Justice R S Reddy and Justice V M Pancholi held that the ordinance reserving quota for upper castes on the basis of their income was “unconstitutional and contrary to fundamental rights guaranteed to the petitioners under Articles 13(2), 14, 15 and 16 of the Constitution“.
The court said that income cannot be considered as the basis for the social backwardness of a community .Observing that the state go vernment had no power to make such provisions, the high court directed it to cancel admissions granted under the 10% economically backward classes (EBC) quota. This will require reshuffling of admissions, especially in engineering and other professional courses.
The high court, however, granted two weeks to the government to approach the Supreme Court.
Gujarat minister Nitin Patel said the government would challenge the high court order in the apex court.
The high court rejected the government's contention that the EBC quota was not reservation, but a classification. The court also noted that the provision violated the maximum 50% reservation norm. The court also pulled up the state government for its false claim that the policy was formulated after a survey.
Takes reservation beyond SC’s 50% cap: Madras HC/ 2021
Sureshkumar K, August 26, 2021: The Times of India
In a remarkable verdict, Madras high court has disallowed 10% quota for Economically Weaker Section (EWS) among forward castes in MBBS admissions under All India Quota (AIQ), saying it would take reservation beyond the Supreme Court-mandated cap of 50%.
It also held that OBC quota for AIQ seats will be 27% as notified by the union government, and not 50% as demanded by DMK.
“It is inconceivable that all states having government-run medical colleges would give up a percentage of seats to AIQ but would retain the right to enforce reservation in such quota as per the state norms,” it said.
The 27% reservation for OBC is in tune with the central legislation which applies to central institutions and also has empirical backing in how the figure of 27%was arrived at, the court said.
The first bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavalu also closed a contempt of court proceedings by DMK against Central authorities for failing to implement OBC reservation in AIQ seats from the current academic year.
2019: Eligibility criteria tougher than OBC ‘creamy layer’
The gover nment may have said the eligibility criteria for “economically weaker sections” (upper castes) quota would be the same as for OBCs, but its orders have made it tough for the new quota category.
The office memorandum issued by the DoPT states that families with “gross national income” below Rs 8 lakh would be identified as EWS. It clarifies that “income” shall include income from all sources.
It is a significant change from the criteria laid out to identify the “creamy layer” for Mandal classes that are ineligible for quotas. The “creamy layer” comprises persons with “gross national income” of Rs 8 lakh or above. The income, however, does not include “income from salaries or agricultural land”.
The difference between the two sets of criteria imply that upper castes who would qualify for quotas would have to be significantly weaker financially since parent’s salary as well as any earning from farm would be included in income.
Besides, for the EWS category, families would be automatically excluded if they own farm land of five acres, residential flat of 1,000 square feet or residential plot of 100 square yards in notified municipalities or residential plot of 200 square yards in areas other than notified municipalities.
The stringent exclusionary norms would leave out a vast section of non-SC/ST/ OBC from the new quota regime, especially those in the lower middle classes.
However, social justice commentators argue that “income/wealth test” for upper castes cannot be at par with the OBCs.
The distinction likely flows from the fact that quotas for Mandal classes stem from their socio-educational backwardness rather than economic. The latter was more of an afterthought to ensure that needy OBCs benefitted from the quotas which would otherwise be cornered by “forwards among backwards”.
Elected bodies, reserved seats in
Legislative seats: basis for reservation is 2001 census
2001 census to be used for reserving seats for SCs/STs: SC | Mon, 3 Jul 2017 | PTI
The constitutional scheme that the 2001 census data would be used for giving proportionate representation to Scheduled Castes (SCs) and Scheduled Tribes (ST) in Lok Sabha and legislative assemblies is "unambiguous", the Supreme Court said today.
A bench of Chief Justice J S Khehar and Justice D Y Chandrachud was hearing a plea of NGO Public Interest Committee for Scheduling Specific Areas (PICSSA) that 'Limbu' and 'Tamang' communities, belonging to ST category, have been denied proportionate representation in West Bengal and Sikkim.
The plea, filed by lawyer Prashant Bhushan, also referred to the rise in ST population in Sikkim and West Bengal and said that the not reserving the seats for them amounted to "denial of constitutional rights of the STs".
The population of Limbu and Tamang communities was 20.60 per cent in 2001 and it rose to 33.8 per cent in 2011, it said, adding that in Darjeeling area of West Bengal, the ST population rose to 21.5 per cent in 2011 from 12.69 per cent of 2001.
"It is very clear that for proportionate representation, the census of 2001 shall be considered till 2026. There is no ambiguity," the bench said, adding that the constitutional scheme clearly stipulated as to which census would be used for reserving the seats.
As the bench expressed unwillingness, Bhushan sought time which led to the adjournment of the hearing to tomorrow.
The PIL has sought direction to the Centre, the poll panel and the two states to take steps for proportional representation of STs, as guaranteed under Articles 330 (reservation of seats for SCs and STs in the House of People) and 332 (reservation of seats for SCs and STs in legislative assemblies of states) of the Constitution, to prevent violation of Article 14 (Equality before law).
The petition said in the Tribes Advisory Council (TAC) established in West Bengal on March 6, 2012, there were no elected members of STs from the three hill area subdivisions of Darjeeling district.
"Moreover, the state assembly elections in 2016 had no reserved ST seat and hence had no implementation of articles 170 and 332 of the Constitution notified as per census 2011.
The delimitated [delimited?] assembly seats in Darjeeling hills presently consist of elected non-ST members," it said.
Politicians seek SC/ ST wives to boost careers
The Times of India, August 22, 2016
Eram Agha
In UP reserved seats, aspiring netas seek SC|ST wives
Iglas assembly constituency in Aligarh district, which goes to the polls with the rest of UP in 2017, is seeing matrimonial offers with a difference. Reserved for scheduled caste (SC) candidates, aspiring politicians are seeking brides who can be put up as candidates in the elections, just so the former can live their political ambitions.
One of these hopefuls is Ravinder Singh. “I want to stand for elections on public demand. But Iglas is reserved for SC candidates and I am OBC. I want to marry an SC girl who is educated,“ sa ys an ad doing the rounds. He adds, “No dowry .“ Singh has got 10 offers so far.
Three months ago, BJP leader Meghraj Singh married a Dalit girl to, in his words, “pursue my political dreams through my wife“.
In Iglas itself, Rashtriya Lok Dal (RLD) leader Harcharan Singh, then 38, married Sulekha Chaudhury , then 32, nearly 12 years ago. Chaudhury was an SC. Harcharan Singh wants his “eligible“ wife to stand for elections from Iglas. Iglas constituency has been reserved for 25 years, of which 10 years have gone by .
“For 2017, my wife shall be the face of my politics,“ said Harcharan, defending his marriage as apolitical. “We got married years ago and there was no politics behind it.But now I want to live my political aspirations through her,“ he added.
“It used to be a general seat earlier and Chaudhury Rajinder Singh was our leader then.I have always been attached to Lokdal party and worked for it. People know me, but since I am OBC I do not have a chance,“ Ravinder Singh said.
“I have nurtured this constituency . Now if I marry an SC girl I can serve the people through her,“ Singh said. His situation is similar to that of BJP leader and zila panchayat member Meghraj Singh, who divorced his wife for “personal reasons“ and married an SC girl named Kusum Chaudhury three months ago to, in his words, “pursue my political dreams through my wife“.
“I was actively involved in the Ram Mandir movement, but have been helpless ever since the seat got reserved. I want to be an MLA but now I will have to live the life through my wife,“ the BJP leader said. Singh is quick to add, “Of course, she is capable of doing things on her own, from getting a ticket to fighting elections.“ Instances of political alliances to take advantage of reservations are not new in Uttar Pradesh, particularly at the panchayat level.
The trend of elected women leaders “outsourcing“ their power to sons and husbands has been analysed by experts in the past, particularly with regard to panchayat elections, where the male members wield the actual power in reserved seats.
Faculty quota
Departments- subjects and not institution will be the unit
SC dismisses govt’s plea to review faculty quota verdict, February 28, 2019: The Times of India
The Supreme Court on Wednesday refused to re-examine its verdict which held that reservation for SCs, STs and OBCs for appointment as teachers in universities and colleges should be decided with regard to departments and subjects rather than treating the institution as a unit.
A bench of Justices U U Lalit and Indira Banerjee dismissed review petitions filed by the Centre and University Grants Commission and said there was no error in the verdict and it didn’t require reconsideration. The court had on January 22 upheld the Allahabad high court order which had ruled that reservation should be granted department/subject wise.
“Grounds in the review petitions were also raised and gone into when the special leave petitions were considered by this court. The decision rendered by the high court was found to be correct and the special leave petitions were dismissed. The court also noted that similar challenge raised on behalf of certain individual petitioners had also been rejected earlier. Taking totality of the circumstances, the submissions raised by the University Grants Commission and Union of India were not accepted and the petitions were dismissed. We have gone through the review petitions and do not find any error apparent on record to justify interference in review jurisdiction,” the bench said.
While adjudicating a petition challenging reservation for teaching staff in Banaras Hindu University, the HC had ruled educational institution should not be treated as a unit to grant reservation and it should be given department-wise.
False caste certificates
Beneficiaries must lose benefit when forgery discovered
The Supreme Court ruled that those using fake caste certificates to avail of quota for admissions to educational institutions or getting government jobs must lose the benefit the moment the forgery is discovered.
Despite clear directions from the SC to adopt “zero tolerance“ against those using fake certificates to illegally usurp seats in educational institutions and government jobs, there have been instances where HCs have permitted such persons to continue in their jobs because they had put in several years in service. In other instances, HCs have permitted students to complete studies after paying fine for using fake caste certificate to gain entry into educational institutions.
Settling a major issue in determining castes which belong to the scheduled category in Maharashtra, a bench of CJI J S Khehar and Justice D Y Chandrachud said leniency by the HCs must stop forthwith as those who used fake caste certificates had criminal intent to usurp the benefits reserved for persons belonging to oppressed and socially and educationally backward communities.
Writing the judgment for the bench, Justice Chandrachud said leniency to such people would amount to depriving a genuine beneficiary of hisher dues. He said the person found usurping benefits with fake caste certificate must face prosecution.
The issue for consideration before the bench arose from Maharashtra, where a full bench of the Bombay HC had held that even when the caste certificate was invalidated by the SC, the person who used this to get the job could continue in service considering the long period he had spent in the job. This judgment had a spiralling effect as smaller benches followed this to grant similar benefit.
Setting aside Bombay HC's judgment, the SC bench reminded HCs that in 1994, the SC had cancelled the admission of one Kumari Madhuri Patil midway through her BDS course after the scrutiny committee found her caste certificate to be forged.
“It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.“
The court had also laid down a procedure for fast scrutiny of caste certificates.“In case the certificate obtained or social status claimed is found to be false, the parent guardiancandidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the state or the Union or elections to any local body, legislature or Parliament,“ it had said.
Judiciary: quotas in
HC: No quotas in Maharashtra judicial posts
Shibu Thomas, Nov 11, 2015: The Times of India
No quotas for judicial posts in Maha, rules Bombay HC
Reservations are not applicable for judicial posts in Maharashtra, the Bombay high court ruled.
In an important order, a division bench of Justices Ranjit More and Rajesh Ketkar rejected a plea that sought implementation of 3% reservation for persons with disabilities to the posts of civil judges and judicial first class magistrates.
“The reservation in judiciary by the state without consulting the high court or without concurrent recommendation of the HC is an encroachment on such exclusive powers,“ said the judges, while pointing to Supreme Court judgments that had said an “independent judiciary is a basic structure of the constitution and the HC alone can recognise vacancies and the reservation (to judicial posts) even if provided by the state.“
The court was hearing a petition filed by Sushil Sonawane, an advocate, who has cerebral palsy . Sonawane had sought implementation of the reservation provided under the Persons with Disabilities Act for the posts of civil judges and JMFCs.
SC, 2019: HCs should relax minimum marks if no SC/STs qualify
A Supreme Court bench headed by Chief Justice Ranjan Gogoi expressed concern over the Kerala high court not finding a single candidate from the reserved category crossing the threshold of minimum percentage of marks for appointment as judicial officers in trial courts.
The HC informed the SC that for the preliminary examination it had fixed 35% as qualifying marks and 40% for the main examination. Only three candidates qualified for the interview and none were found suitable for the post of judicial officer, it said. Over 2,700 candidates had competed for 45 posts of judicial officer and only 31 general category candidates could be selected, it added.
The bench of CJI Gogoi and Justices L N Rao and Sanjiv Khanna said that in such situations, HCs should relax the minimum percentage of marks, maybe from 35% to 30% depending on the situation at hand.
“It is surprising that in a state like Kerala you can’t find 45 candidates for judicial officers’ posts,” it said.
Relax minimum marks for reserved category: CJI
Talking of the general scenario where representation of SCs, STs and other backward classes in services was below the level proportionate to their population, the CJI said, “For reserved category, HCs can relax minimum percentage of qualifying marks to give them representation in judiciary. Otherwise, reserved category candidates can never pass the examination and the posts earmarked for them will always remain vacant.”
The CJI said minimum marks were being relaxed for reserved category candidates in examinations for recruitment in other services and HCs could examine this aspect to take appropriate steps.
Data received by the law ministry from HCs last year showed that SCs comprised less than 14% of judges in the subordinate judiciary and STs about 12%. The percentage of posts of judicial officers for SCs was less than their share of the population, which stands at 16.6% according to the 2011 Census. Tribal representation is higher than their population, which is 8.6% of India’s total headcount. Women judicial officers constituted 28% of judges in the subordinate judiciary.
’Internal reservation’
HC, quashes 10.5% Vanniyar quota/ 2021
Nov 2, 2021: The Times of India
The Madras high court quashed the 10.5% reservation provided to Vanniyars, a Most Backward Community (MBC) in Tamil Nadu, in government jobs and admission to educational institutions, saying it was unconstitutional.
The Tamil Nadu assembly had in February passed the then ruling AIADMK-piloted bill providing internal reservation of 10.5% for Vanniyars, with the incumbent DMK government issuing an order in July this year for its implementation. It had split the aggregate 20% reservation for MBCs and denotified communities into three separate categories by regrouping castes and provided ten per cent plus sub-quota for Vanniyars, formally known as Vanniakula Kshatriyas.
“Is the state government empowered to do internal reservation. The Constitution has given enough explanation. The legislation providing for internal reservation is cancelled,” Justice M Duraiswamy and K Murali Sankar ruled.
The judges said the government cannot come out with such a legislation. This had been explained in the Constitution. The petitioners contended that if such a quota was implemented, then the Vanniyar community would enjoy quota in jobs and admission while 25 other castes under MBC and 68 others would have to share the remaining quota.
2022: SC, too, quashes the quota
AmitAnand Choudhary, April 1, 2022: The Times of India
New Delhi: The Supreme Court on Thursday quashed the Tamil Nadu law to grant 10. 5% internal reservation to the Vanniyakula Kshatriya community out of the 20% quota available to the Most Backward Classes (MBCs) and De-notified Communities (DNCs), saying that caste could be the starting point but not the sole basis to decide backwardness and reservation cannot be granted on superficial grounds.
The apex court held that the state was entitled to classify any community or group of communities within backward classes as a particular class for the grant of special measures but there there should be a reasonable basis for categorising such communities into a different section within the MBCs and DNCs and it cannot be done on “superficial or illusory” grounds.
Jurisdiction of quotas
SC/STs can get quota in home state only: SC, 2018
A Constitution bench of the Supreme Court held that Scheduled Castes or Tribes can avail of benefit of reservation in government jobs only in their home states and can’t access quotas in other states where they might have migrated.
Upholding the “son of the soil” principle, the bench said if a person’s status migrates with him it will amount to depriving the rights of SC/STs of the host state. The bench passed the order in view of the contradictory stand taken by the apex court in earlier verdicts. The Delhi HC, while dealing with the issue of reservation in subordinate services, had referred the matter to the SC under Article 134A of the Constitution for authoritative adjudication on the issue.
SC: Communities notified as SC/ST in relation to a state
A five-judge bench of Justices Ranjan Gogoi, N V Ramana, R Banumathi, M M Shantanagoudar and S Abdul Nazeer noted on Thursday that a particular community is notified as SC or ST in relation to a state and that concept would become “nugatory” (of no value) if migrants from other states are in its ambit. “Unhesitatingly, therefore, it can be said that a person belonging to a scheduled caste in one state cannot be deemed to be a scheduled caste person in relation to any other state to which he migrates for the purpose of employment or education,” the court said.
The bench said the expression ‘in relation to that state or Union Territory’ and ‘for the purpose of this Constitution’ used in Articles 341 and 342 means benefits of reservation would be within the geographical territories of a state or UT, Justice Gogoi said in his judgement. “If the special privileges or the rights granted to scheduled castes or scheduled tribes in a particular state are to be made available in all states and if such benefits are to be carried from state ‘A’ to state ‘B’ on migration, the mandate of Article 341/342 would get compromised,” it said. The apex court also held that the state could not tinker with list of SCs or STs by including other castes or tribes, saying this can be done only by Parliament and states doing so will lead to constitutional anarchy.
“The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to scheduled castes and under Article 342 in regard to scheduled tribes cannot be varied or altered by any authority including the court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. SCs and STs thus specified in relation to a state or a UT do not carry the same status in another state or UT. Any expansion or deletion of the list by any authority except Parliament would be against the constitutional mandate,” it said.
…except for Delhi Subordinate Services, which are central services
AmitAnand Choudhary, Pan-India quota rules apply to DSS too: SC, August 31, 2018: The Times of India
Observing that anyone who lives inside India can never be considered an outsider in Delhi, the Supreme Court on Thursday said people belonging to Scheduled Castes and Scheduled Tribes who migrated to the capital from other states could not be denied benefit of reservation in government jobs.
Although a five-judge constitution bench held that a person notified as SC/ST in one state could not claim the same status in another state, it ruled by a majority of 4:1 that pan-India reservation rule would apply to Delhi Subordinate Services as they were part of central services and thus open to SCs/STs from across the country.
The majority verdict came from Justices Ranjan Gogoi, N V Ramana, M M Shantanagoudar and S Abdul Nazeer. Disagreeing with them, Justice Banumathi ruled that job quota in services in a Union Territory should be limited to those SCs/ STs notified as such by the UT concerned.
Writing the majority verdict, Justice Gogoi said subordinate services in the NCT of Delhi were part of Central Civil Services and reservation benefits must extend to all and should not be restricted to SCs/STs specified in the presidential order for Delhi. The bench did not examine the issue concerning other UTs and left it to be adjudicated by an appropriate bench.
“So far as the NCT of Delhi is concerned, pan-India reservation rule in force is in accord with the constitutional scheme relating to services under the Union and the states/UTs,” the majority verdict said.
“These clearly are general central services and perhaps, it is owing to this state of affairs that the Union of India in its affidavit has stated that members of the Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan-India eligibility) is consistently adopted,” the bench said while agreeing with the Centre’s stand.
Justifying its decision for pan-India rule for reservation in Delhi, the bench quoted a previous SC verdict. “Delhi is not just a part of India. It is megapolitan...people from all parts flock to this outsized city. But we can’t exaggerate this factor, for the presence of farther regions like the south and the northeast, population-wise, is minimal...” it said.
Dissenting with her four colleagues, Justice Banumathi said, “If pan-India reservation is to be extended to UTs like Delhi, Chandigarh, Puducherry, Andaman and Nicobar Islands or Daman and Diu for Group ‘C’ and ‘D’ services for which recruitments are made by the respective UTs, the very object of the constitutional scheme of uplift of SCs/ STs of these UTs will be defeated. All-India reservation to the services under UTs including Delhi will be against the mandate of Articles 341 and 342 of the Constitution.”
She said there could not be any distinction between states and UTs on this issue. “Even though UTs are centrally administered, each UT has its own identity. Each of the UTs would be bound by their respective presidential order of SCs/STs for giving benefit of reservation in employment,” she said.
Local candidates/ Sons of the soil
See Sons of the soil/ local job-seekers: 'reservations'/ quotas for: India
Marriage, conversion
Conversion does not change caste: HC
Sureshkumar K, Nov 26, 2021: The Times of India
Conversion from one religion to another will not change the caste a person belongs to, the Madras high court ruled, nixing a bid by a Dalit man, who embraced Christianity, to obtain an inter-caste marriage certificate to get priority in government jobs. Dalit-converts are treated as backward community (BC) members and not as belonging to a scheduled caste (SC), as per law.
Justice SM Subramaniam said that merely because of conversion and his consequent categorisation as a backward class member, a Dalit cannot claim his marriage to another Dalit as an inter-caste marriage. “The petitioner admittedly belongs to Christian Adi-Dravida community and by virtue of conversion to Christianity he was issued with the Backward Class certificate. However, by birth, the petitioner belongs to ‘Adi-Dravida’ community and change of religion will not change the community. The classification of Scheduled Castes, Scheduled Tribes, Most Backward Classes, Backward Classes and other castes will not change the caste.”
‘Could lead to abuse of quota under inter-caste marriage’
In Tamil Nadu, inter-caste matrimony entailing priority in government jobs applies to two types of marriages: when one spouse is from a forward caste and the other belongs to a SC/ST; and between a BC member and an SC/ST member.
The petitioner, S Paul Raj, belongs to the Christian Adi-Dravida community and possesses a Backward Class certificate. He married G Amutha, who belongs to Hindu Arunthathiyar community. Post-marriage, Paul Raj claimed that it was an intercaste marriage since he was now a BC member and not a Dalit. A backward class member’s marriage with an SC member shall be treated as an inter-caste marriage, with all attendant benefits, he claimed. He relied on a December 28, 1976 government order which says: “Where one of the spouses belongs to SC/ST, then intercaste marriage certificate has to be issued in favour of the petitioner.”
He moved the high court after the Salem district officials rejected his contention, pointing out that he himself hailed from a Dalit community and that his conversion will not undo his caste status.
Upholding the finding, Justice Subramaniam said: “In the event of a converted person claiming inter-caste marriage certificate, it would pave way for the citizen to abuse the benefit granted under the intercaste marriage quota. “ “The repercussion will be large and, therefore, the intercaste marriage certificate has to be issued only if any one of the spouses belongs to the Scheduled Caste and other spouse belongs to the other caste, but not otherwise,” Justice Subramaniam said.
An inter-caste marriage certificate has to be issued only if one of the spouses belongs to the Scheduled Caste, but not otherwise, said the Madras high court
Reconverted SCs entitled to all the benefits
Feb 28 2015
SC: Reconverted Dalits must get quota benefits
In a landmark judgment, the Supreme Court has ruled that if a person with Dalit ancestry reconverts to Hinduism, he would get back his caste status and benefit of reservation. “A person who is born to Christian parents who had converted to Christianity from Scheduled Caste Hindu can avail the benefit of caste certificate after his embracing Hinduism, subject to other qualifications,“ a bench of Justices Dipak Misra and V Gopala Gowda ruled on Thursday .
“There cannot be any soundness of logic that he cannot avail the similar benefit because his grandparents were converted and he was born to parents who were Christian,“ said Justice Misra, who authored the judgment for the bench.
The bench laid down a three-fold criteria for a re-converted person to get back his caste status and consequential benefits accruing to that caste for employment and education.The only caveat is that on reconversion, the dalit community must accept himher as a member of the community .
“There must be absolutely clear cut proof that he belongs to the caste that has been recognized by the Constitution (Scheduled Castes) Order, 1950; there has been reconversion to the original religion to which the parents and earlier generations had belonged; and there has to be evidence establishing the acceptance by the community ,“ the bench said.
The case was related to the refusal of Scheduled Caste certificate to one K P Manu, whose great grandfather belonged to Hindu Pulaya community in Kerala. Manu's father had embraced Christianity and took a new name, Verghese, and married Mariam, who earlier belonged to the Hindu Ezhava community and had converted to Christianity.
Marriage: SC/ST woman to retain tag
Swati Deshpande | TNN
From the archives of The Times of India 2007, 2009 2010
Mumbai: The Bombay high court on Friday held that a woman belonging to the SC/ST category by birth would retain her caste even after marrying a man who was from an upper caste.
The bench of Justices B H Marlapalle, Abhay Oka and R Y Ganoo said that a woman would not lose her caste by marriage and it did not change to that of her husband’s. In fact, as ruled by a Constitution bench of the SC,
‘‘Caste is acquired by birth and does not undergo a change by virtue of marriage or even adoption.’’ The apex court had also laid down that a woman from a general category married to a SC/ST man would also not automatically gain voluntary mobility into the backward caste.
The ruling came in a case of where a man and his family members were seeking protection from arrest last year in a criminal case filed against them under the SC and ST (Prevention of Atrocities) Act for abusing his SC wife.
Married to Muslim, woman barred from ST seat
Married to Muslim, woman barred from ST seat, July 3, 2018: The Times of India
The Nagpur bench of the Bombay high court dismissed the nomination of a Gond Scheduled Tribe (ST) woman for contesting the panchayat elections from a reserved seat, citing her marriage with a Muslim man. The onus of proving that she isn’t following Islamic rituals but continues to be a Gond ST lies on the woman, the HC observed.
Shaheda Tabassum’s nomination — for contesting the Panchayat Samiti resident’s election as an ST candidate from Kurkheda subdivision in Gadchiroli — was rejected after her rival Manoj Sidam moved the HC, demanding the dismissal of her candidature.
Tabassum had filed the nomination in her paternal name, Sharda Deorao Uike, as the seat was reserved for an ST candidate. She was originally an ST and embraced Islam after marriage, which makes her a non-ST and thus ineligible to contest the election, the petitioner pointed out.
“In the facts of the case and considering the proposition laid down in the SC judgment, it’s held that the woman is not eligible to contest the election as an ST candidate,” a division bench comprising justices Bhushan Dharmadhikari and Zaka Haq said.
Marriage to SC does not make wife an SC
Sets Aside KV Teacher’s Appointment
The caste of a person is unalterable and cannot change after marriage, the Supreme Court said on Thursday, setting aside the appointment of a general-category teacher who used reservation benefits to join the Kendriya Vidyalaya 21 years ago on the ground that she was married to a Scheduled Caste man.
A bench of Justice Arun Mishra and Justice M M Shantanagoudar said the woman, who had risen to the post of vice-principal in the school, was not entitled to reservation as she was born in an upper caste family.
“There cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled Caste. Undoubtedly, she was born in ‘Agarwal’ family, which falls in general category and not in Scheduled Caste. Merely because her husband belongs to a Scheduled Caste category, she should not have been issued with a caste certificate showing her caste as Scheduled Caste,” the bench said.
In 1991, the Bulandhahr district magistrate issued the woman a caste certificate identifying her as a member of the Scheduled Caste. Based on her academic qualifications and caste certificate, she was appointed as a postgraduate teacher in 1993 at Kendriya Vidyalaya, Pathankot. During the course of her service, she completed her M.Ed.
Two decades after her appointment, a complaint was filed alleging she had illegally taken the benefit of reservation. After an inquiry, the local authorities cancelled her caste certificate and Kendriya Vidyalaya terminated her job in 2015.
Challenging the KV’s decision, she approached the Allahabad high court, which upheld her termination. She then approached the SC.
Taking into account her unblemished service of more than two decades, the apex court modified the HC ruling, saying the order of termination from service shall be treated as one for compulsory retirement.
“While exercising leniency, we have also kept in mind that she has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate... while continuing in service based on the caste certificate. No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the high school certificate, marks sheet etc. showing her caste as Agarwal at the initial stage,” the bench said.
Wife can get caste status of spouse in rare cases/ HC
Vasantha Kumar, March 24, 2022: The Times of India
Caste of a person is determined by birth and in rare circumstances, a woman gets the caste status of her husband provided she proves her admission to his community by social acceptance, Karnataka HC observed in a recent judgment.
“It is true that in rare circumstances a woman acquires her husband’s caste provided she pleads and proves her admission to his community by social acceptance. But the petitioner did not make out this case,” Justice Krishna S Dixit said, dismissing the petition filed by MG Archana, a member of Balekoppa Grama Panchayat representing a constituency reserved for ST.
TNN
Muslims: quotas for
From the archives of The Times of India 2007, 2009
Andhra HC strikes down Muslim quota
Says Law Based On Dubious Data May Spur Conversions
TIMES NEWS NETWORK
A seven-judge bench of the Andhra Pradesh high court headed by chief justice A R Dave on Monday struck down as “unsustainable” the state law providing 4% reservation in educational institutions and jobs for 15 Muslim groups deemed backward by the state government.
The bench described findings of the AP Backward Classes Commission — on which the quota law had been based — as ‘unscientific’. Within hours of the verdict, chief minister K Rosaiah said his government would move Supreme Court in appeal and vowed to restore the ‘AP Reservation in Favour of Socially and Educationally Backward Classes of Muslims Act, 2007’.
In a 5-2 majority ruling, the court found that the Commission neither evolved any criteria nor published these before inviting objections. It had merely stated that it had followed the two criteria evolved by the Mandal Commission for identification of Socially Economic Backward Classes (SEBC) among non-Hindu community.
Chief Justice Dave, speaking for himself and Justices A Gopala Reddy, V Eswaraiah and G Raghuram, said the enactment was religion-specific and potentially encouraged conversions and was thus unsustainable. The bench said the commission relied excessively on data collated by the Anthropological Survey of India, which was meant for determining the profile of the Indian population and not for deciding on affirmative action for Muslims.
A backgrounder, as in 2018
What is the current status of Muslim reservation in Telangana?
Backward classes among Muslims now get four per cent quota in government jobs and professional courses including medicine. The current quota is subject to final judgement of the Supreme Court.
Do all Muslims get the benefit?
No. Only educationally and socially backward sections among Muslims get the benefit. Creamy layer concept also applies. Social groups like Syeds, Pathans, Mashaik, Irani, Arab, Bohras, Khojas, Memons, Jamayat and Navayat are excluded.
Is the quota based on religion?
Select backward groups among Muslims based on their professional trades are included. For instance: artisans, washermen, quilt makers
Are backward classes among Muslims eligible to contest polls from seats reserved for BCs in local and civic bodies?
Yes. Muslim social groups, which are eligible for quota in professional courses and government jobs, can contest from backward class reserved wards/divisions.
What is the current legal status of the Muslim quota?
Andhra Pradesh High Court had struck down the legislation on Muslim reservations in 2004, 2008 and 2010. The High Court order was challenged in Supreme Court in 2010. The apex court stayed the High Court order. Reservation for backward classes among Muslims is now subject to final order of the Supreme Court.
What is the history of Muslim reservation in Telangana/Andhra Pradesh?
The demand first began in 1960s. It, however, took a concrete shape in 1994 when state government issued orders (Go Ms No, 30 dated August 25, 1994) granting quota for Muslims and 14 other social groups. The government order (GO) was not implemented due to change in government. A decade later, Rajasekhar Reddy government issued orders giving five per cent quota (GO Ms No 33 dated July 12, 2004). Owing to legal hurdles, the quota was later reduced to four per cent.
Did the state government follow due procedure of law?
A BC Commission headed by Justice Dalwa Subrahmanyam was appointed and it recommended four per cent quota based on a socio-economic survey of Muslims groups by retired civil servant PS Krishnan.
What is the socio-economic status of Muslims?
A majority of Muslims are daily wage earners and mostly self-employed doing petty works for a living. According to Rajinder Sachar committee report, the condition of Muslims is worse than Dalits
Did the quota benefit BCs among Muslims?
Every year about 20,000 students stand to benefit
What are the new promises to the community?
Telangana Rashtra Samithi (TRS) promised 12 per cent quota in 2014 based on Tamil Nadu model. The TRS government also passed resolution in the state assembly and sent it to the Centre for approval. Centre turned it down.
What political parties say now?
Chief minister K Chandrasekhar Rao blames Prime Minister Narendra Modi, accusing him of being communal. Bharatiya Janata Party (BJP) president Amit Shah says no quota based on religion. Congress promises implementation of quota.
‘Panel’s approach is non-scientific’
Hyderabad: The AP Backward Classes Commission’s procedural error in determining Muslim backwardness was fatal to its report and its consequent recommendation, the state’s high court said while striking down affirmative action for the community.
‘‘The fast track approach adopted by the commission was nothing but a non-scientific method,’’ Justice Dave said. It was neither ‘‘legal nor sustainable’’, he declared. The action of the panel was also criticized for its reliance on recommendations made by P S Krishnan, a retired IAS officer deputed by the state to conduct the survey on the commission’s behalf. The appointment of Krishnan is ‘protanto invalid’, the bench said and faulted the panel for relying on his findings.
Echoing the majority view in a separate judgment, Justice Meena Kumari said the investigation by the panel was not based on real facts, data or analysis and was without proper survey. The commission limited its survey to six districts in three days, she said.
Justice Prakash Rao aired the minority view holding that the bench was not called upon to adjudicate the list but was only required to answer a legal reference. He said that the government had some data before it on which it acted and thus could not be faulted. Justice DSR Varma said he did not agree with the majority view and would give his rea2sons shortly. The Advocate General sought suspension of the order which was rejected by the bench.
The Andhra government has long struggled to provide quotas for Muslims, who were first given reservation in July 2004, a month after Y S Rajasekhara Reddy came to power.
Telangana: backward Muslims gets 12%
The Telangana assembly on Sunday passed a bill to provide 12% reservation to backward Muslims and 10% to Scheduled Tribes, taking the quantum of quota to 62% in jobs and education.
With the quota percentage crossing the Supreme Courtmandated 50% cap, the state government, which has modelled the bill around the Tamil Nadu formula, will request the Centre to incorporate it in the Ninth Schedule of the Constitution to avoid court scrutiny. The bill was unanimously passed after five agitating BJP MLAs were suspended by the speaker and marshalled out of the House. A special session was convened to hike the quota, which was a poll promise of the ruling TRS in the state.
“This day will go down in history books. The TRS has fulfilled another promise by hiking reservations for poor Muslims and STs. I will take the battle to Delhi, if the Centre fails to approve the hike. My government will not hesitate to approach the Supreme Court,“ said CM K Chandrasekhar Rao.
“Are Muslims not our citizens? When backward groups in every caste and religion are being provided with relief, why not Muslims,“ he asked.
As of now, reservation for Muslims in the state stands at 4%, under the OBC category , and the STs at 6%. KCR also hinted at an increase in reservation for Scheduled Castes by another 1%-2%.
Retrospective application of reservation orders
SC: Not permissible
AmitAnand Choudhary, July 13, 2019: The Times of India
A day after the BJP-Shiv Sena government in Maharashtra decided to grant Maratha reservation retrospectively from 2014, the Supreme Court restrained it from doing so and made it clear that the law, upheld by the Bombay high court recently, could be not implemented from a back year.
The SC did not stay the Maratha quota either, but made it clear that appointments and admissions under it would be subject to its final decision. The state government decided to accommodate Maratha community applicants who could not be employed under the 16% quota announced by the erstwhile Congress-NCP government in 2014 after the Bombay HC stayed the quota in the same year. A government resolution issued on Thursday stated that the reservation would be applied from 2014.
‘Power to decide on backward classes vests with President’
The state took the decision after the Bombay high court upheld the law and allowed 13% quota for Marathas under the SEBC Act.
A bench of CJI Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose articulated its views while issuing notice to the state government on an appeal filed against the verdict of the Bombay HC upholding the validity of the Socially and Educationally Backward Classes (SEBC) Act, 2018.
Senior advocate Gopal Sankaranarayanan, appearing for one of petitioners challenging the Bombay HC order, brought the recent decision of the state government to the notice of the SC. He said the decision was illegal and violation of law. Taking note of his submission, the bench said the law granting Maratha reservation and the HC order upholding the law cannot be implemented retrospectively.
The state had provided for 16% Maratha reservation in both education and public jobs. The HC brought it down to 12% for education and 13% for jobs as recommended by a state-appointed backward class commission headed by former HC judge M B Gaikwad. Challenging the high court’s June 27 judgment, the petitioner contended that the court misread SC judgments to conclude that there is no stringent ceiling limit of 50% reservation as set out in the 1993 Indra Sawhney case.
The petitioner alleged that the Congress-NCP government in 2014 and then the current regime had enacted the SEBC Act under political pressure, completely disregarding constitutional principles of equality and rule of law.
A group of social workers and academics from the Muslim community also challenged the HC order. The petition, filed through advocate Vipin Nair, alleged it is not within the jurisdiction of the state government to decide socially and educationally backward classes and the power vests with the President. It said the issue of deciding backwardness of a community should be referred to National Commission for Socially and Educationally Backward Classes.
Private sector jobs for locals
2019: Andhra reserves 75% private jobs for locals
Gopi Dara, July 23, 2019: The Times of India
Andhra Pradesh has become the first state in the country to reserve jobs for locals in all private industrial units and factories, irrespective of whether or not these companies get financial or other help from the government. The Andhra assembly passed the Andhra Pradesh Employment of Local Candidates in Industries/Factories Act, 2019, which reserves 75% private jobs across all categories in industrial units, factories, joint ventures as well as projects that are in public private partnership mode.
Although many states have been making noises about reserving a big chunk of private jobs for locals, they have not implemented it as yet. MP had only on July 9 stated that it would bring a law to reserve 70% of private sector jobs for locals. Immediately after coming to power in December 2018, CM Kamal Nath had announced an industrial policy that made it mandatory to give 70% of jobs to locals in companies availing financial and other facilities from the government. The demand has existed in Karnataka, Gujarat and Maharashtra as well.
The Andhra law states that if locals with the necessary skills are not available, then the companies would have to train them with the state government and then hire them.
Quota for locals part of Reddy’s poll promise
Experts say that with this, companies will not be able to hide behind the excuse of not finding skilled labour.
The act says that only those units that are listed in the first schedule of the Factories Act will be exempted from the act after the government looks into each application and takes a call. These are mostly hazardous industries such as petroleum, pharmaceuticals, coal, fertilisers and cement, among others.
Companies will have to comply with these provisions within three years of the commencement of the act and will have to provide quarterly reports about local appointments to a nodal agency. CM Y S Jagan Mohan Reddy had promised the reservation in the runup to the assembly election.
“The act is both good and bad. Good because it gives an indication of the government’s policy to promote local hiring in the state. But the government has to ramp up its skill development centres in the state to train locals to be ready to be hired in manufacturing and IT companies in the state,” said Vijay Naidu Galla, president and CEO of Tirupati-based Amara Raja industrial group and chairman of CII-AP.
(With inputs from Shaukat Mohammed)
Promotions
The issues
Dhananjay Mahapatra, August 17, 2018: The Times of India
Without disturbing entry-level reservation for SCs and STs, the Supreme Court on Thursday mulled examining the feasibility of graded reduction in quota in promotion and whether creamy layer elimination could give the most backward SCs/STs better prospects for social advancement.
“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 criteria 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 said three points had emerged for consideration — one, quantifiable data to assess 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 sevenjudge bench or a clarification of the Nagaraj judgment will suffice,” the bench said.
CJI Misra added, “We need to examine whether the Nagaraj judgment 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 judgment, SC had said no quota in promotion and to overcome this, Parliament had enacted Article 16(4A).”
Venugopal said the test of backwardness and creamy layer would apply to other socially and economically backward classes and not to SC/STs, who still suffered 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 said the creamy layer criteria could be inserted only by Parliament and not by courts.
No quota in PSU bank promotions: SC, 2016
The Times of India Jan 9 2016
Exactly a year after holding that officers belonging that officers belonging to the Scheduled Castes and Scheduled Tribes can claim reservation in promotion from level 1 to level VI grade, the Supreme Court on Friday admitted that it had committed a mistake while passing the verdict and clarified that there can be no reservation in promotion.
SC: SC/STs can't claim quotas for govt job promotions
The Times of India, Mar 12, 2016
Amit Anand Choudhary
In a landmark verdict, the Supreme Court ruled that scheduled caste and scheduled tribe members cannot claim quota as a right in government job promotions, saying states were not constitutionally obliged to give preferential treatment to any community in promotion. A bench of Justices Dipak Misra and Prafulla C Pant said the government was not bound by any constitutional provision to frame a policy for reservation in promotion and the court could not order making reservation in promotion mandatory. Referring to Articles 16(4), 16(4-A) and 16(4-B) of the Constitution mandating socially affirmative action to help dsadvantaged groups, the court said states were not bound to make reservation for SCs/STs in promotion.
It said the provisions allowed the government to exercise discretion and provide for reservation only after collecting quantifiable data showing backwardness of a class and inadequacy of their representation in public employment.
Article 16(4-A) provides that nothing 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 in favour of SCs and STs which, in the opinion of the state, were not adequately represented.
Present Reservation , quota system do not deliver social justice , it only enables political parties to gain political mileage.Economically weak families do not get protection while there are Rich , ... Read
The bench refused to direct Uttar Pradesh government to carry out an exercise to find the representation of SCs/STs in government jobs to frame a policy for reservation in promotion. "The state is not bound to make reservation for SCs and STs in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect data would tantamount to asking the authorities whether there is ample data to frame a rule or regulation. This will be in a way, entering into the domain of legislation," the bench said.
The Constitution granted discretionary power to the government to frame law for reservation in promotion and the government could not be forced to bring regulation on the issue, the bench said. "The courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation. The courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of subordinate legislation," the bench said while rejecting a PIL seeking a direction to the UP government to grant reservation in promotion.
2018: SC allows SC/ST quotas for promotions
From: AmitAnand Choudhary, In big relief to Centre, SC OKs SC/ST quotas for promotions, June 6, 2018: The Times of India
Stay Lifted, But Govt Must Abide By Guidelines
In a shot in the arm for the Modi government, facing flak over the Supreme Court striking down automatic arrest under the law on prevention of atrocities against Dalits and tribals, the apex court on Tuesday allowed the Centre to implement the long-stalled reservation in promotion policy.
While quotas in promotions will be in “accordance with law”, which will mean under-representation of scheduled castes and tribes must be established while also ensuring administrative efficiency is not compromised, the SC decision to lift the stay will open the doors for implementation of the policy.
In 2006, the apex court had itself upheld constitutional amendments for quota in promotion in government jobs while calling for data on extent of backwardness, which has not proved easy to quantify. The contentious issue, pressed aggressively by BSP and Dalit activists and supported by all major political outfits, has been caught in a legal tangle and judicial stays.
With governments failing to comply with guidelines, various high courts quashed the decision on granting reservation in promotion from 2011 onwards. Punjab and Haryana HC quashed the reservation policy in the income tax department and this was followed by other HCs.
In August 2018, the Delhi high court quashed the Centre’s office memorandum issued in 1997 on implementing the policy and also set aside all such promotions in the last 20 years.
SC/ST promotion quota: Can govt fulfil norms?
In an appeal filed by the Centre, the apex court had in 2015 directed to maintain status quo. Even now, as the Centre and the states begin implementation of quotas, the action is liable to be challenged on similar grounds such as representation and efficiency, but the Centre has the opportunity to present evidence of having done so.
With the policy is at a standstill over the last seven years, Centre sought the green signal to go ahead and implement reservations. Additional solicitor general Maninder Singh, appearing for the Centre told a vacation bench of Justices A K Goel and Ashok Bhushan the government had a constitutional duty to promote its employees as per law.
“There had been no promotion. All promotion is stayed. I am government and it is my duty to promote my employee as per the law. It is not that Nagaraj order is not to be complied with,” Singh said. The ASG placed before the bench an order passed by another bench of SC allowing reservation in policy during pendency of the case and pleaded the court to pass similar order.
Senior advocate Shanti Bhushan and lawyer Kumar Parimal, appearing for anti-quota activists, opposed the Centre’s plea and said the issue has been referred to a Constitution bench and any interim order should be passed by that bench.
The court, after a brief hearing, made it clear that the Nagaraj order pertaining to collecting quantifiable data had to be followed. “It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter,” the bench said.
Though the Centre is upbeat, doubts remain whether it will be able to fulfill guidelines fixed in the Nagaraj case to give quota in promotions in government jobs.
A brief history of the case
Subodh Ghildiyal, Promotion quota a bone of contention for decades, June 6, 2018: The Times of India
The clash between proand anti-reservation blocs culminated in the Supreme Court’s Nagaraj judgment of 2006, which ruled “promotion quota” could only be provided if the state furnished quantifiable data showing “backwardness and inadequacy of representation” of SCs/STs in public jobs.
The judgment effectively ended the quota, resulting in a major controversy that has not died down since.
“Promotion quota” has been in place since 1955. However, the Supreme Court in Indira Sawhney judgment (Mandal Commission) observed quota could only be given for initial appointment and not in promotion. It was seen as stalling the decades-old provision for Dalits and tribals.
In 1995, the Centre passed the 77th constitution amendment Act to continue with “promotion quota”.
However, in 1997, five Office Memorandums were issued by DoPT on various aspects of “promotion quota” like backlog and relaxation of marks, putting brakes on quota. It triggered what came to be known as “5 OM agitation.”
The Vajpayee government in 2000 passed three constitutional amendments – 81st, 82nd and 85th – to override the controversial OMs.
Following the Nagaraj judgment, pressure began to build on UPA which, in 2012, sponsored a bill in Rajya Sabha to obviate the need for states to collect data on backwardness and inadequacy of representation. While the RS passed the bill on December 17, 2012, it was opposed in Lok Sabha and has remained pending since.
Despite the drama over the SC judgment on Tuesday, it is not clear if “promotion quota” has been restored to the pre-Nagaraj era. If not, it may not mean much to the SCs and STs.
2019, Karnataka: SC allows SC, ST reservations in promotions
AmitAnand Choudhary, May 11,2019: The Times of India
Holding that merit must not seen in a narrow perspective such as performance in an exam but be considered as part of larger societal goals of ensuring equality for marginalised sections, the Supreme Court on Friday said while upholding reservations in promotion for SCs and STs in Karnataka.
“Once we understand merit as instrumental in achieving goods that we as a society value, we see that the equation of merit with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value,” said a bench of Justices U U Lalit and D Y Chandrachud.
This is the first time that the apex court has upheld the law on promotion in reservation after SC allowed the provision in 2006. Many other states have also framed laws but failed to pass the judicial test for not fulfilling criteria set in 2006 such as surveys on representation of SCs and STs department wise.
“Thus, providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. Merit must not be limited to narrow and inflexible criteria such as one’s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration,” Justice Chandrachud, who wrote the judgement, said.
The bench said that the present system of attaching merit with performance in examination is wrong and should change. It said that a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.
Referring to provision of Article 355 of the Constitution, the court said it emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.
SC order will face test
Subodh Ghildiyal, May 14, 2019: The Times of India
The SC judgment upholding reservation in promotion for SCs/STs may have led to cheers in the target constituency but the political reality suggests it remains an uphill task.
The judicial nod to Karnataka’s 2018 law reiterates there is no getting away from Nagaraj judgment, which has mandated the need for quantifiable data to establish “backwardness, inadequacy of representation and no effect on efficiency” for the measure to be activated.
The law upheld was brought by Karnataka after the top court in a 2018 judgment struck down its original version for not being Nagaraj compliant. It means that states are at liberty to enact promotion quota but would have to back them with the record showing that dalits and tribals are not adequately represented in various echelons of government. “The states have all the data about their employees. They should bring the law without delay,” Ashok Bharti, activist coordinating dalit protests nationally, said.
But it may not be so easy now. When in August 2012, the UPA brought a constitutional amendment to neutralise an Allahabad HC order and restore promotion quota, Samajwadi Party vociferously opposed it. It was in power in UP then.
The political realities appear to be more tricky seven years later.
After MP and Rajasthan poll defeats of BJP, upper castes have emerged as a strong lobby group threatening a backlash for any aggressive affirmative action.
So much so, that Modi government this January even introduced 10% reservation for upper castes by making ‘economic backwardness’, in addition to social backwardness, a criterion for quota. Would the political parties have the courage to reintroduce promotion quota for SCs and STs? When the SP opposed the constitutional amendment in 2012, it was responding to the pressure from its support base of OBCs.
Any revived hostility from upper castes and OBCs would seriously test the resolve of the ruling parties in moving on the quota provision.
Given the change in ground reality over the years, promotion quota had a better chance in 2012 when upper castes were not a pressure group in politics, and definitely did not define themselves in hostility to the backward classes.
In fact, SAPAKS, the party of ‘forward castes’ in MP, was launched mid 2018 in reaction to the Centre’s decision to bring a constitutional amendment to neutralise the apex court’s dilution of “SC/ ST Prevention of Atrocities Act”. The 10% upper caste quota is rooted in SAPAKS.
2019: Promotion based on quota unconstitutional: HC
Suresh kumar, Nov 15, 2019: The Times of India
CHENNAI: In a major setback to the Tamil Nadu government, the Madras high court on Friday declared fixation of seniority and conferring promotions based on reservation in state government services as unconstitutional and ultra vires.
Asserting that the roster point system adopted by the government in fixing seniority of government servants is nothing but an indirect way of providing reservation even beyond 69%, a division bench of Justice MM Sundresh and Justice RMT Teekaa Raman declared sections 1(2), 40 and 70 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 as ultra vires and unconstitutional.
"Any reservation is not automatic but can only be on need basis. This is more so, for a special reservation, either horizontal or internal... reservation in selection is different from seniority and promotion. In fixing seniority and conferring promotion, different yardsticks and parameters are to be applied," the bench said.
The bench passed the order on a batch of petitions moved by state government servants challenging the 200-point roster system followed by the state.
The system leads to mandatory 69% vertical reservation on communal basis. Reservation includes horizontal and internal while adopting 69% ratio. Vertical reservation is with respect to adequate representation on the basis of community, while horizontal reservation would include sub sects and special categories, such as, women, destitute widows, ex-serviceman, physically handicapped and people studied Tamil medium and others.
Incidentally, the state does not choose to follow the mandate of the apex court in eschewing creamy layer, the court said.
Though the system followed by the Tamil Nadu Public Service Commission since 2003 was set aside by a division bench of the high court in 2015 which was also upheld by the Supreme Court in 2016, the state superseded the judgement by bringing in the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.
Quotas not applicable on…
Single vacancies: SC
The Times of India, Sep 24 2015
Dhananjay Mahapatra
The Supreme Court ruled that reservation for scheduled castes, scheduled tribes and other backward classes would not apply if the government was filling a single post in a cadre. However, it clarified that if a person from the reserved category was already in government employment and eligible for the single post through departmental promotion, then appointing him to the single post would not be vitiated.
Referring to two earlier judgments, a bench of Justices Dipak Misra and P C Pant said, “It is eminently explicit that reservation for a single post in a cadre will keep the general members of the public in total exclusion and the question of reservation will arise when there is plurality of posts in the cadre.“
The bench married the two earlier orders to enunciate that if a person from reserved category , already employed with the government, was appointed to the single post through due process of prom otion, it would not fall foul of an earlier Constitution bench judgment which barred reservation for single posts.
The Constitution bench in the `Postgraduate Institute of Medical Education and Research, Chandigarh vs Faculty Association' case in 1998 had held that “in a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of backward classes and in total ex clusion of the general members of the public“. “Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework,“ it had said.
A year later, in 1999, the SC n Punjab vs R N Bhatnagar had said that when posts in a cadre were to be filled from wo sources -departmental promotion and direct recruitment -once both entered a common cadre, their birthmarks disappeared and they got completely integrated in he common cadre.
Failed students: quota no shield for them: Delhi HC
The Times of India, Jun 19 2015
The Delhi high court refused to grant relief to a second-year undergraduate student at Guru Gobind Singh Indraprastha University whose admission was cancelled after he failed to clear his previous four semesters.
The HC further said, “Since the appellant was found ineligible after the second academic break, his admission stood automatically cancelled. Therefore, there is no question of any further chance only on the grounds of him being an SCST,“ a division bench of Justices Mukta Gupta and VP Vaish said.
Rejecting the plea of Gourav Joshiya, who was pursuing Bachelor of Technology from Amity School of Engineering and Technology , the bench upheld the single judge order refusing another chance to the student for clearing the exams and said the opportunity would have been given to him if he had been able to satisfy the necessary eligibility criteria.
“To attain an egalitarian society, we have to urgently remove socio-economic inequalities. Therefore, in order to promote weaker sections of the society , an educational institution must provide all forms of additional assistance to bring them at par with general category students. The appeal of the appellant may have been allowed on this ground alone, if he would have been able to satisfy necessary eligibility criteria for continuance of his admission with the respondents,“ the bench said.
Gourav had challenged a single judge order of May 25, denying him a chance to reappear in the examinations to get admitted to the third year. In his appeal, Gourav claimed he had sent a mercy application to the university's committee in October 2014, but through a notification on November 7, 2014, it was rejected and his admission was also cancelled.
He had contended that the judge had misconceived that he had to appear in 10 papers, whereas he had to appear only in five. The university , however, told the court that during the academic year 2012-13 and 2013-14, Gourav had reappeared in the failed papers of first year and second year but could not clear them and hence failed to secure the minimum credits for promotion to third year.
Dalit converts to Christianity, Islam won’t get quota
‘Dalit converts to Christianity, Islam won’t get quota’
Prasad Cites Statute To Justify It
New Delhi:
Dalit converts to Islam or Christianity will not be eligible for contesting parliamentary or assembly elections from constituencies reserved for Scheduled Castes (SC), and cannot claim other reservation benefits, law minister Ravi Shankar Prasad said in response to a question in Rajya Sabha.
However, those adopting Hindu, Sikh and Buddhist faiths would be eligible for contesting from SC reserved seats and getting other reservation benefits, Prasad clarified in response to a question from BJP member G V L Narasimha Rao.
Speaking on eligibility to contest from reserved constituencies, the minister said, “Para 3 of the Constitution (Scheduled Castes) Order outlines that... no person who professes a religion different from Hindu, Sikh or Buddhist religion shall be deemed to be a member of a Scheduled Caste.”
The minister’s statement makes a clear distinction between Dalits adopting Islam and Christianity with those choosing to adopt Hinduism, Sikhism or Buddhism.
The Union law minister, however, clarified that there was no proposal to bring in any amendment in the Representation of the People Act to debar SCs/STs converting to Islam or Christianity from contesting parliamentary or assembly elections.
…but displaying crucifix no ground to cancel SC status/ HC
Oct 7, 2021: The Times of India
Can a Holy Cross and other religious symbols and practices displayed by a Dalit be cited to cancel his/ her Scheduled Caste certificate? No, said the Madras high court, calling it a “bureaucratic narrow-mindedness” the Constitution never foresaw.
In a recent order, the first bench of Chief Justice Sanjib Banerjee and Justice M Duraiswamy held that merely because a member of the Dalit community married a Christian and her children have been recognised as members of her husband’s community, the SC certificate issued to her cannot be cancelled.
The court made the observations while allowing a petition by P Muneeswari in 2016, seeking to quash a 2013 order passed by the district collector cancelling her community certificate. A doctor by profession, she was born to Hindu Pallan (a Scheduled Caste) parents and certified so. She then married a Christian and raised her children as members of the Christian community.
Citing this, her certificate was revoked by the district authorities. When she challenged the decision in court, officials said they visited her clinic and found a Holy Cross on the wall. On this basis, the officials conjectured that she had converted to Christianity and was, thus, disqualified from retaining the Hindu Pallan community certificate.
The first bench said: “There is no suggestion in the affidavit that she has abandoned her faith or that she has embraced Christianity. It is equally possible that she, as a part of a family, may accompany her husband and children for Sunday matins, but the mere fact that a person goes to church does not mean that such person has altogether abandoned the original faith to which such person was born”.
Ratio of distribution
Kerala HC scraps 80:20 ratio for minority scholarships/ 2021
May 29, 2021: The Times of India
KOCHI: The Kerala high court on Friday held that the state government has to treat all minority communities equally on the basis of the population census and it cannot grant more scholarships to any one community to rectify its backwardness.
A division bench of Chief Justice S Manikumar and Justice Shaji P Chaly quashed the state government orders providing scholarships in 80:20 ratio to Muslims and Latin Christians/Converted Christians. The ruling was given on a public interest litigation challenging the orders.
The petitioner had contended that Muslims and Christians are part of six religious communities notified as minority communities by the central government and the minority status is for the whole religion and not individual religions forming part of minority communities. Minority communities comprise 45.27% of the state's population, of which 58.67% are Muslims and 40.6% are Christians, he said.
The Kerala Catholic Bishops’ Council and Kerala Council of Churches (KCC) have welcomed the order, saying the court has rightly reminded the government that all religious minorities notified by the Union government should be considered while projects are formulated for minority welfare.
‘Govt orders amounted to discrimination’
The judgment, authored by Justice Chaly, held that the government orders amounted to discrimination and favouring a particular minority community, which goes against the provisions of Minority Commission Acts of 1992 and 2014 as well as Article 14 (equality before law) and Article 15 of the Constitution (prohibition of discrimination on the basis of religion, race, caste, sex, or place of birth). The subdivision envisaged can only be possible within minority communities and not by taking the weakness of a particular minority community alone, it said.
Muslim organisations came out against the HC order. "The scholarship scheme was introduced for Muslim students and the community was getting 100% of its benefit. Later 20% of it was earmarked for Latin Catholics and Converted Christians. Actually it was a mistake to change the heading of the project. But we did not oppose it then as we did not want the issue to take a different turn," IUML national organising secretary E T Mohammed Basheer, MP, said. The Muslim organisations want the state govt to file an appeal.
The state government had argued that Muslims in Kerala are far behind other communities in social, economic and educational fields to justify its orders. It said college enrolment was 8.1% for Muslims, far behind Christians and even scheduled castes and tribes while unemployment was at 55.2% among Muslims as against 31.9% among Christians and 40.2% among backward Hindus. Only 3% Christians were landless as against 37.8% Muslims, it said.
The court directed the government to issue new orders to provide scholarships to members of minority communities equally and in accordance with the latest population census. The verdict will add strength to its fight against the partial attitude of the government in implementing the rights of minority communities, the KCC said.
Reserved category candidates against open merit posts
SC allows OBC under Unreserved category/ 2020
Dhananjay Mahapatra, June 16, 2020: The Times of India
Merit breached the iron wall of quota as the Supreme Court permitted a Madhya Pradesh OBC woman, who topped the merit list, to join as an assistant professor in geography from posts earmarked for unreserved category women candidates.
Madhya Pradesh sets aside 33% of all posts in government jobs, except those in the forest department, for women. This is sub-divided into four categories — unreserved, SC, ST and OBC. For the 84 posts advertised for assistant professors, 26 were reserved for women candidates. Of these, 12 were for unreserved, four for SCs and six each for STs and OBCs.
Sadhna Singh Dangi, who competed as an OBC candidate, topped the merit list and the government appointed her in the unreserved category since she performed better than all unreserved category candidates. She had not sought eligibility on the basis of caste quota. One Pinki Asati and many others challenged this decision before the Madhya Pradesh HC, which on April 29 quashed the list of selected candidates and said it was impermissible to draft in an OBC candidate in the unreserved category and appoint her to a post earmarked for the latter.
The Indore bench of the HC ruled that in a case of compartmentalised reservation, no migration from reserved to unreserved category was permissible even if the candidate belonging to reserved category had not availed any benefit of reservation for securing eligibility and had got a seat in the unreserved category solely on merit.
Further strengthening compartmentalised reservation, the HC had said, “A candidate not falling in the merit list of unreserved category cannot be brought from any other category belonging to OBC, SC or ST in order to accommodate against horizontal quota of unreserved women category.” The HC had said meritorious OBC category women candidates would be accommodated against the six posts of assistant professors available for that category and they could not eat into the 12 unreserved category posts.
A Supreme Court bench of Justices U U Lalit, M M Shantanagoudar and Vineet Saran entertained Dangi’s appeal and stayed the HC order, paving the way for her and other meritorious reserved category candidates to be appointed as assistant professors in posts earmarked for the unreserved category. The SC asked the parties to file their responses to the appeal in two weeks.
Sub- categorisation/ -classification/ -reservatiom
SC’s judgement: 2020
AmitAnand Choudhary, After ’04 no, SC yes to quota within quota, August 28, 2020: The Times of India
Holding that benefits of reservation are being enjoyed only by certain groups within Scheduled Castes, Scheduled Tribes and socially and educationally backward classes (OBCs) leading to inequalities within the reserved classes, the Supreme Court ruled that the government can give preferential treatment by way of sub-categorisation of some sections of SCs, STs and OBCs in reservation.
A five-judge bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Aniruddha Bose said sub-classifications of SCs, STs and OBCs could be allowed by the Centre, which means some would get ‘reservation within reservation’ to end disparities within quota.
SC: Subdivision will bring equality and end disparity
The court said there is a cry (for sub-categorisation) and caste struggle within the reserved class and sub-classification would bring equality and end disparity.
The SC’s verdict, however, is not a final word on the issue for the time being as the matter will be adjudicated by a seven-judge bench because Thursday’s judgment is in contradiction with the apex court’s 2004 verdict by which sub-classification was not allowed, also by a five-judge bench.
Upholding validity of the Punjab law for reserving 50% vacancies within Scheduled Castes to Balmikis and Mazhabi Sikhs, the court said the state cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures. It said if sub-classification is denied, it would defeat the principle of right to equality by treating unequal as equal and noted that the scavenger class continued to remain more or less where it was.
Differing with the 2004 verdict, the bench said the present quota policy is causing more inequality.
While a larger bench will deliver a final ruling, the SC decision is likely to set off a few political tremors as the subclassification proposal has been fiercely resisted by more dominant SCs, STs and OBCs.
“The State’s obligation is to undertake the emancipation of the deprived section of the community and eradicate inequalities. When reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State (by) making sub-classification and adopting a distributive justice method so that State largesse does not concentrate in (a) few hands and equal justice to all is provided,” the bench said.
’Benefits not trickling down to poorest of poor: SC”
The Supreme Court ruling favouring ‘reservation within reservation’ for those castes and classes within SCs/STs/OBCs that have not benefited and continued to languish is in line with various orders in which it favoured re-examination of the existing policy to ensure that benefits of the quota system reach to the people who need it.
The SC has, in recent times, favoured changes in reservation policy so that benefits are not usurped by a few groups within a category.
A Constitution bench had in April held that lists of SCs, STs and OBCs for providing reservation are not “sacrosanct and unalterable”. It suggested that beneficiaries should be revised by the government by removing those who have become affluent over the years and adding those who remain needy.
It had that said benefits of reservation were being availed by some communities over the last 70 years and they have become well-off economically and socially. It said benefits had not trickled down to all sections and there is dissatisfaction within the ‘reserved’ class that can be addressed by revising the list.
“Now there is a cry within the reserved classes. By now, there are affluents and socially and economically advanced classes within SCs and STs. There is voice by deprived persons for social upliftment of some of the SCs and STs, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of SCs, STs and OBCs,” the court had said.
Agreeing with the contentions that the government is required to revise the lists, the court had said: “It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy.”
Giving its ruling, the five-judge SC bench said, “Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.”
2004 EV Chinnaiah case
The five-judge Supreme Court order [in 2020] upholding states’ right to undertake sub-categorisation of SCs /STs is significant because it would now stand as a neutralising counterweight to the earlier 2004 EV Chinnaiah judgment that declared it as unconstitutional.
2006: M Nagraj case
April 4, 2018: The Economic Times
SC rules out early bench formation on SC/ST
The verdict had said that the creamy layer exclusion principle, applicable in grant of quota to Other Backward Classes (OBCs), cannot be applied to Scheduled Castes and Scheduled Tribes for promotions in government jobs.
The 2006 verdict in the M Nagaraj versus Union of India had ruled out the application of creamy layer exclusion principle for SC-ST employees.
The bench, while referring the matters to the CJI, had also referred to earlier verdicts of 1992 Indra Sawhney and others versus Union of India (popularly called Mandal Commission verdict) and 2005 E V Chinnaiah versus State of Andhra Pradesh which had dealt with creamy layer exclusion principle for OBCs.
In one of the matters, the Maharashtra government, through its resolution in 2004, had granted reservation to Scheduled Castes, Scheduled Tribes and DeNotied Tribes, Nomadic Tribes, Special Backward Category and Other Backward Classes in job promotions also.
The apex court had said that clarity was required on the application of creamy layer principle in a situation of competing claims within the same races, communities, groups or parts of SC/ST communities notied by the President under Articles 341 and 342 of the Constitution.
SC’s judgement: 2024
Dhananjay Mahapatra, August 2, 2024: The Times of India
New Delhi : In a landmark decision, Supreme Court permitted states to sub-categorise castes within the Scheduled Castes (SC) based on socio-economic backwardness and degree of under-representation in govt jobs to ensure that the larger pie of 15% SC quota goes to backwards among them. It also asked govts to devise suitable criteria to bar the ‘creamy layer’ among SCs and STs from availing reservation.
By this 6:1 majority ruling, a bench of Chief Justice D Y Chandrachud and Justices B R Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and S C Sharma overruled the 2004 judgment of a five-judge bench in EV Chinnaiah case which had said SCs were a homogeneous group and could not be sub-categorised. Justice Trivedi dissented and said the Chinnaiah judgment was constitutionally valid.
To minimise politics and executive play over extension of the ‘quota within quota’ concept to Scheduled Castes, the court clarified that sub-classification of castes within SCs cannot be based on govt’s whims or political considerations. It firmly said sub-classification of the most backward among the SC community must be based on empirical data, both quantifiable and demonstrable, regarding their backwardness.
Limit reservation to first generation that avails it & benefits from it: Justice Mithal
The logic behind the court’s suggestion for keeping the ‘creamy layer’ out is that children of civil servants and others from among the SCs who have moved up the socio-economic ladder and received good education are not deserving of quotas. At present, creamy layer exclusion policy is applicable only to other backward classes (OBCs).
The CJI authored a 140-page judgment for himself and Justice Misra. Justices Nath, Mithal and Sharma, through separate opinions, agreed with the opinions of the CJI and Justice Gavai. Both the CJI and Justice Gavai agreed with each other, thus making six of the seven judges concur on the constitutional permissibility of sub-classification of SCs.
It was Justice Gavai, the lone Dalit judge on the bench, who held that those among SC/ST communities who have got top positions in civil services and risen high in socio-economic strata must get excluded from the reservation scheme for scheduled castes, who were socially discriminated for centuries.
Justice Mithal took the creamy layer exclusion principle to a different level. “Reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of reservation and has achieved higher status, the benefit of reservation would not be logically available to the second generation,” he said.
In his 281-page opinion, Justice Gavai said, “The state must evolve a policy for identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution.”
Cautioning states that subcategorisation of SCs ought to be based on empirical data, CJI Chandrachud said, “Where the action is challenged (before the HC or the SC), the state will have to justify the basis of its action. The basis of the sub-classification and the model which has been followed will have to be justified on the basis of empirical data gathered by the state.”
He further said, “It cannot merely act on its whims or as a matter of political expediency. The decision of the state is amenable to judicial review... the state must provide justification and rationale for its determination. No state action can be manifestly arbitrary. It must be based on intelligible differentia which underlie the subclassification. Basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved.”
Giving an example, the CJI said if a state decides to provide a different percentage of reservation to ‘dhobi’ and ‘barber’ castes, “it must prove that these two castes suffer from differing levels of social backwardness. It is not merely sufficient for the state to base the classification on the difference in the traditional occupation of the two castes”.
Justice Nath, who agreed with the CJI, said, “I am also in agreement with the opinion of Justice Gavai that ‘creamy layer’ principle is also applicable to SCs and STs and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to OBCs.”
Justice Sharma also agreed with the CJI and Justice Gavai.
Win for Madiga activist after 30 yrs
Madiga Reservation Porata Samithi founder Manda Krishna Madiga, 59, has been wearing black and white for 30 years to drive home his fight for sub-categorisation of SCs, for the Madigas in particular. Backed by PM Modi last year, Madiga is happy with the verdict and far from done. “There are many issues to stand up for,” he said.
Technical posts: reservation exempted
1975 HRD order exempts technical institutes from quotas
The dominant view in many IIMs is that the only way to resolve the demand for reservations in faculties in the premier institutes could be through the withdrawal of the 1975 HRD ministry order that exempted them from having quotas.
One IIM director said, "We are bound by the 1975 order. There has been no other order from HRD ministry invalidating exemption from reservation to SCs/STs/OBCs." He said, the 1975 order was first issued in 1974 for School of Planning & Architecture giving it exemption from reservation in teaching jobs. The order said SPA being a technical education institute, it is being allowed an exemption.
"It is for the HRD ministry to find out how an order meant for technical institutes was extended to IIMs that were management institutes," one IIM director said putting the blame on the ministry for creating confusion. In 1975, an exemption was given to IIM Ahmedabad and soon other IIMs adopted it.
IIM directors also point out that withdrawal of 1975 order cannot be done in haste. "If the order was issued after a Cabinet decision, then HRD will have to seek Cabinet approval. It is not going to be easy," one director said, adding that it also needs to be found out what was the policy before 1975. Even if the proposed IIM bill allows reservation in faculty jobs, the earlier order has to be withdrawn, points out an IIM director.
PG medical quota not binding on states: SC
TIMES NEWS NETWORK
New Delhi: In a ruling having a major ramification for medical education, the Supreme Court on Wednesday held that the Centre’s decision to provide quota for SCs and STs in post-graduate medical courses did not automatically bind the state governments to follow suit and implement it in their medical colleges.
It took note of the fact that the Centre has provided for reservation to SC and ST candidates in the All India Entrance Examination for MD/MS/PG Diploma and MDS courses and also in the All-India quota PG seats, but firmly handed down the ruling that “the same cannot automatically be applied in other sections where state governments have power to regulate.”
Moreover, the Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal appeared disinclined to grant a direction to the states to follow the example set by the Centre. It upheld the Haryana government’s decision not to provide quota in PG medical courses.
“In our view, every state can take its own decision with regard to reservation depending on various factors,” said Justice Sathasivam. It said: “Article 15(4) is an enabling provision and the state is the best judge to grant reservation for SC/ST/Backward Class categories at PG level in admissions and the decision of the state of Haryana not to make any provision for reservation at the PG level suffers no infirmity.”
It accepted the Bhupinder Hooda government’s explanation that reservation in undergraduate medical courses is being provided strictly as per their policy but the PG level education in medical education was governed by the Medical Council of India (MCI).
Super-specialty (medical) posts
‘Only merit, no quota in super-specialty posts’
Dhananjay Mahapatra TNN
The Supreme Court on Thursday blocked caste-based reservations in appointments to faculty posts in AIIMS (All India Institute of Medical Science), saying merit alone should count at the super-specialty level. “There were certain services and posts where either on account of the nature of duties...or the level in the hierarchy... merit alone counts,” a constitution bench said, quoting from the judgment in the Indira Sawhney case that upheld 27% quota for OBCs in central services
AIIMS faculty posts
SC rules out reservation in AIIMS faculty posts
The apex court blocked castebased reservations in appointments to faculty posts in AIIMS saying constitution benches of the court had warned against reservation at super-specialty level.
“There were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such, situations, it cannot be advised to provide for reservations,” a five-judge constitution bench of Chief Justice Altamas Kabir and Justices S S Nijjar, Ranajan Gogoi, M Y Eqbal and Vikramjit Sen said quoting from the judgment by a nine-judge bench delivered in Indira Sawhney case.
The court quoted from Indira Sawhney verdict: “... in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts.”
University teaching posts
Allahabad HC, 2017: treat department/subject (not university) as a unit
On April 7, 2017 Allahabad High Court had allowed a plea which challenged an advertisement brought out by Banaras Hindu University (BHU), seeking to quash the clauses that assured reservation of SCs, STs and OBCs in teaching faculty.
New Delhi: After seeking legal opinion on University Grants Commission’s directive on SC, ST and OBC faculty quota, the Ministry of Human Resource Development has decided to file a Special Leave Petition (SLP) in the Supreme Court against the decision by the Allahabad High Court.
On April 7, 2017 Allahabad High Court had allowed a plea which challenged an advertisement brought out by Banaras Hindu University (BHU), seeking to quash the clauses that assured reservation of SCs, STs and OBCs in teaching faculty.
The court ruled, “The respondent University will carry out the exercise of applying reservation to the posts under advertisement treating the department/subject as a unit for all levels of teachers rather than treating the university as a unit.”
After the directive became public, the Parliamentary Committee on the Welfare of Schedule Castes and Schedule Tribes made recommendations to form an inter-ministerial committee and re-look at the UGC's directive that tweaks quota policy. The government received their recommendations and has decided to file an SLP in the apex court, seeking a relook at the order.
The inter-ministerial committee of officials from the Law Ministry, UGC, Social Justice and Empowerment Ministry and DoPT and was headed by UGC chairperson DP Singh. The committee had advised the government to rethink the new directive and seek legal opinion because the “quantum of SC/ST/OBC teachers would be adversely affected under the new formula”.
The committee debated over the issue and found consensus in continuing with the system of implementing reservations on the basis of the institution as a whole rather than newer regulation that calls for reservation of the SC/STs on the basis of taking the department as a whole.
In October 2017, UGC issued a directive which directly affected the recruitment of SC/ST/OBC teachers. It found opposition from within the government. Recently, the Social Justice and Empowerment Minister Thawar Chand Gehlot asked HRD minster Prakash Javadekar for a rollback of the policy.
Gehlot said in the letter that the government was duty-bound to ensure proper representation of marginalized sections in teaching position and that the circular contradicts constitutional provisions.
The new notification has the potential to dent efforts that ensure SC/ST/OBC categories in getting 15%, 7.5% and 27% jobs, respectively as per the constitutional provision. Under the earlier reservation roster, when the university was taken as unit, the SC/ST/OBC got reservations to some extent. But with the new roster, according to which the reservations will consider the department as a unit, there will be a decline in the number of SC/ST/OBCs as professors, assistant professors and so on.
Dept, not university, should be unit for quota: SC
January 23, 2019: The Times of India
The Supreme Court upheld Allahabad high court’s order that said individual departments and not universities/ colleges should be the unit for implementation of SC/ST/OBC quota in faculties.
The Centre and UGC had challenged the HC order in a move that was seen as endorsement of the complaint of SC/ST/OBC bodies the verdict could be detrimental to their adequate representation in teaching positions.
However, a bench headed by Justice U U Lalit said there was nothing wrong with the HC verdict and dismissed the petition. While adjudicating a petition challenging reservation policy for teaching staff in Banaras Hindu University, the HC had ruled on April 7, 2017, that an education institution as a whole should not be treated as a unit to grant reservation and it should be given department-wise. “The respondent university will carry out the exercise of applying reservation to the posts under advertisement treating the department/subject as a unit for all levels of teachers rather than treating the university as a unit,” the HC had said.
Challenging the verdict, the Centre and UGC moved SC saying the process of selection would get delayed as it would be difficult to ensure 15%, 7.5% and 27% reservation for SC/ST/OBC categories as the number of vacancies was small if taken departmentwise. Universities earlier used a system whereby every fourth teacher appointed was be from OBCs, every seventh from SCs and every 14th from STs.
The Centre contended that under the new scheme, each department has to make 14 appointments to fulfil the quota policy, otherwise 7.5% quota for STs would be less than one post.
The Centre and UGC had challenged Allahabad HC order in a move that was seen as endorsing the complaint of SC/ST/OBC bodies that the verdict could be detrimental to their adequate representation in teaching positions
UGC implements Allahabad HC ruling/ 2017
The UGC’s Standing Committee examined 10 court judgments on the subject and recommended that the Allahabad High Court’s verdict should be applied to all universities.
University Grants Commission, HRD ministry, Reservation in teaching posts, SC/ST faculty, Teachers Recruitment, India news, Indian Express The proposed change could result in fewer positions for SCs, STs and OBCs, according to P S Krishnan, former secretary to the central government.
The number of SC, ST and OBC faculty on university campuses could shrink if the HRD Ministry decides to accept the University Grants Commission’s (UGC) new formula for implementing reservation in teaching posts.
In a decision taken last month, the UGC resolved that the number of reserved faculty posts shall be calculated department-wise and not based on the aggregate posts in a university. The proposed change could result in fewer positions for SCs, STs and OBCs, according to P S Krishnan, former secretary to the central government and an expert on the subject.
The new formula is in response to a verdict of the Allahabad High Court in April. While hearing a case on teachers’ recruitment in Banaras Hindu University, the court held that reservation in teaching posts has to be applied department-wise by treating the department as a “unit” and not the university. Read | CBSE releases UGC NET admit card 2017 at cbsenet.nic.in, know how to download here
The court criticised UGC for applying reservation in a “blanket manner” and advised the regulator to revisit its implementation. “If the University is taken as a ‘Unit’ for every level of teaching and applying the roster, it could result in some departments/subjects having all reserved candidates and some having only unreserved candidates. Such a proposition again would be discriminatory and unreasonable. This again would be violative of Article 14 and 16 of the Constitution,” the Allahadbad High Court had observed in its verdict that cancelled the BHU recruitment and asked it to start afresh.
The UGC’s Standing Committee examined 10 court judgments on the subject and recommended that the Allahabad High Court’s verdict should be applied to all universities.
The UGC is learnt to have shared this decision with the HRD Ministry and is waiting for its “concurrence”. The change will be notified through an executive order after the government’s nod, said sources in the Commission.
As per official data, there are 17,106 teaching positions at 41 UGC-funded central universities, of which 5,997 are vacant as of April 1, 2017. This roughly works out to 35 per cent vacant teaching positions. Out of vacant faculty posts, the maximum are at the assistant professor level (2,457), followed by those of associate professor (2,217) and professor (1,098).
The higher education regulator has been writing regularly to all institutions to fill faculty positions on priority. Any change in the implementation of reservation will affect all new recruitment drives taken up by universities in future.
According to Krishnan, the number of reserved teaching posts in universities will be “much fewer” under the formula proposed by UGC.
Currently, the number of SC, ST, OBC faculty positions are calculated by treating the university as a “unit”. In other words, all posts of the same grade, such as assistant professor, across different departments in a university are grouped or clubbed together to calculate the reserved quota.
If the new UGC formula is accepted, reservation would be applied by treating each department in a university as a “unit”. This means the number of reserved posts at the level of, say, assistant professor will be determined separately for each department; calculated based on the total assistant professor posts in each department.
“Take professors, for instance. There are fewer professors in a department compared to assistant professors. If a department has only one professor, there can be no reserved posts there as reservation cannot be applied in case of a single post. But if all posts of professors across different departments are clubbed together, then naturally there is a better chance of positions being set aside for SC, ST and OBC,” said Krishnan, who has worked in the field of social justice for SCs, STs and OBCs for more than six-and-a-half decades.
“If our goal is to strengthen India by giving opportunities to persons belonging to the submerged populations, who have become qualified, then we should interpret rules or make rules to enable them to come in due numbers. If our aim is to weaken India then we can interpret rules in a manner, which defeats the goal of reservation,” he said.
Part C: Incentives, not quotas
Incentives
Jharkhand, 2021: Incentives if 35% of workers are SCs, STs
August 29, 2021: The Times of India
The Jharkhand government promised more incentives to all investors who would commit to have 35% of their workforce from ST and SC communities. This incentive will be over and above the existing provisions of the new Jharkhand Industrial and Investment Promotion Policy 2021, which was launched by CM Hemant Soren.
“People from the state have been migrating in search of jobs. We experienced that pain during the pandemic when our workers were evacuated. Our plan is to create employment opportunities within the state,” Soren said.
At an investors’ meet, Soren said MoUs totalling Rs 10,000 crore for proposed investments would create around 20,000 direct and 1.5 lakh indirect employment opportunities in state. “While minerals are ours and will remain our core sector, our plan includes tourism, education, renewable energy and many sectors like food processing, automobiles, pharmaceuticals and textiles,” he added. “The state government wants to move forward with the cooperation of investors,” he said.
‘Upper castes’
Economically backward sections of forward communities: Kerala’s Devaswom boards
Kerala govt extends reservation to forward class, November 15, 2017: The Hindu
In a significant decision, the Left-led Kerala government today decided to provide reservation to economically backward sections in forward communities in appointments to five Devaswom boards of the state.
Addressing a press conference here after a cabinet meeting that took the decision, Chief Minister Pinarayi Vijayan said that this was the first time reservation had been extended to forward communities in the country.
He said necessary amendments would be made in the Devaswom Recruitment rules to implement the new decision.
The chief minister said 10 per cent reservation would be given to the economically weak in these communities for recruitment in the Devaswom boards.
It was also resolved to increase the reservation quota for backward communities and Scheduled Castes/Scheduled Tribes in Devaswom appointments, he said.
With the latest announcement, the Ezhava community’s reservation would go up to 17 per cent from 14 per cent and that of SC/ST to 12 per cent from 10 per cent.
The reservation of backward communities other than Ezhava would be six per cent. It was three per cent earlier, Vijayan said.
The LDF’s declared policy is that reservation for backward communities and SC/ST for government jobs and in the education sector should continue along with a fixed reservation percentage for economically backward in forward classes, he said.
“But that can be implemented in the nation only through a constitutional amendment. However, there are certain sectors where reservation for economically weak can be introduced without constitutional changes,” the Left leader said.
The state government’s view was that the Devaswom Board was one such sector where it could be implemented as it did not have reservation to minority communities, he said.
Vijayan also said that the LDF and state government would continue to put pressure on the Centre to bring in constitutional amendments to provide reservation to economically backward in forward communities in other government jobs also.
The Travancore Devaswom Board, Malabar Devaswom Board, Guruvayour Devaswom, Koodalmanikam Devaswom and Cochin Devaswom Board are the five boards that manage temples in the southern state.
Hike in pension age
On other cabinet decisions, Vijayan said the pension age of government doctors and teachers in medical colleges has been increased.
The pension age of doctors under the directorate of health service have been hiked to 60 from the present 56 years.
Similarly, the superannuation age of teachers under the medical education department has been fixed at 62 years. The present age limit is 60 years.
The decision in this regard was taken in view of shortage of doctors in the government sector, the chief minister added.
See also
Caste-based reservations, India (history)
Caste-based reservations, India (the results, statistics)
The Scheduled Castes: statistics
Scheduled Castes of Kerala (list)
Scheduled Castes in Tamil Nadu
OBC (Other backward class/es) quota: India
Jat community: 'reservations'/ quotas for
Sons of the soil/ local job-seekers: 'reservations'/ quotas for: India
