NEW DELHI: Factors like an inadequate representation of scheduled castes and tribes in government jobs, instead of their backwardness, need to be considered while granting quota to them in promotions, the Supreme Court said today.
It also observed that the members of SC/ST communities were constitutionally presumed to be backward.
The observations came from a five-judge constitution bench headed by Chief Justice Dipak Misra, which reserved its verdict on a clutch of petitions seeking reconsideration by a seven-judge bench its 2006 verdict in the M Nagraj case which had put conditions for granting quota benefits in job promotions to employees belonging to the Scheduled Castes (SCs) and Scheduled Tribes (ST) communities.
The 2006 verdict had said the states were bound to provide quantifiable data on the backwardness of SCs and STs, the facts about their inadequate representation in government jobs and the overall administrative efficiency before providing quota in promotions to SC/ST employees.
The Centre and various state governments have sought reconsideration of this verdict, saying it has virtually made grant of quota in promotions for SC/ST unworkable.
They had also assailed it on various grounds, including that the members of the SC/ST communities are presumed to be backward and the stigma of caste remains with them.
"There is a distinction between other weaker sections and the SCs and STs. The test of backwardness is for those weaker sections who are not SC/ST. So far as SC/ST are concerned, they are constitutionally backward," the bench, also comprising Justices Kurian Joseph, R F Nariman, S K Kaul and Indu Malhotra, said.
It also said "the concept of backwardness is not of much value" so far as SCs and STs are concerned, adding that the 2006 judgement had referred to the importance of quantifiable data on inadequate representation of the SCs/STs in government jobs.
The observation came when senior advocate Rakesh Dwivedi opposed the grant of quota in promotions in higher posts, saying "crutches are not forever and crutches are not for all. Generations (of SC/ST) which were crippled have gone and the generations which crippled them have also gone."
"The object of reservation being social advancement and empowerment of the SC/ST, in the backdrop of historical exploitation, the State has necessarily to focus on continued existence of backwardness and the wound of historical exploitation," he said, adding as a SC/ST employee goes up in life, the justification for reservation gets diluted.
He said the continued backwardness of a class should be the basis for grant of reservation and a person, who has joined the service, cannot be allowed to "leapfrog and leapfrog" over general category employees, just because his fellow caste men are being exploited somewhere in a village.
"Your's is an extremely powerful argument for striking down the constitutional amendment (which enabled government to grant quota)," the bench said, adding however, this argument did not relate to the present issue.
"This would be an excellent argument against the constitutional amendment, but you cannot mix up 'creamy layer' principle with the reservation for SC/ST," it said.
Dwivedi assailed the argument of Attorney General K K Venugopal that the stigma and caste-based discrimination remained for SC/ST and gave the example of BSP supremo Mayawati, a SC member, and said she "sat on the chair and her fellow party men sit on the floor."
"Can it be said that the stigma of caste remains even after a person goes up," the lawyer asked and gave another example saying that if a person from the community becomes the CJI, then it cannot be said that discrimination still exists.
Referring to the arguments that backwardness and advancement cannot go hand in hand, the bench said "It may sound like a sincere paradox. Once a person becomes a part of creamy layer, his backwardness becomes the paradox".
"There has to advancement. There has to be reservation and there has to be balancing also," the bench said.
Venugopal strongly supported the quota in promotions for government employees belonging from SC/ST, saying the "stigma" and "imprint" of caste and backwardness remained attached to them irrespective of the fact that some of them have "come up".
He said the SC/ST people were "excluded for centuries" and moreover, the decision as to who are SCs and STs, is to be decided by the President and Parliament.
Senior advocate Shekhar Napahade, appearing for those opposed to quota in promotions, said the 2006 verdict does not need reconsideration, otherwise it would be "creating chaos" in the country.
Quota was never meant to continue in perpetuity and can it be said that there has been no change in the status of SC/STs since 1950.
"Let the central government say there has been no change in the status of SC/ST. It will be the self condemnation for the government that nothing has been done in last 70 years," he said, adding it "cannot be the approach that despite all the progress made, we will remain backward for all the times to come.