Reservation acceptable at initial appointment, not in promotion, SC told

New Delhi : The Supreme Court on Wednesday was told that the reservation for Scheduled Castes and Scheduled Tribes may be acceptable at the initial stage of appointment but not for promotion as reservation is for a class of people and not for the individuals in a cadre.

Opposing the plea by the Centre seeking reference to a larger bench the question of reservation in promotion, senior counsel Rajeev Dhavan told the five-judge constitution bench headed by Chief Justice Dipak Misra that the presumption of backwardness of the SC/ST is not available in promotion as after entry in government service they are no more a class but individual within a cadre.

Dhavan said this while appearing for one of the respondents opposing the central government’s plea for reference to a larger bench for reconsideration of a 2006 judgment by which the top court had laid down the criteria for reservation in promotion for SC/ST.

Justifying the 2006 judgment, Dhavan said after a SC/ST is appointed, then his presumptive backwardness could not be cited to give him reservation in promotion.

The 2006 judgment, also known as the Nagaraj case, had said: “… state will have to show in each case the existence of compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency, before making provision for reservation in promotion.”

Dhavan also told the bench that the concept of creamy layer is an essential test to determine backwardness which can’t be presumed indefinitely. He cited a number of judgments by the top court and also high court in support of his contention.

Contending that the concept of creamy layer is an essential part of right to equality, Dhavan said that the test of backwardness is always there but the higher you go there is no need to satisfy the test of backwardness.

Earlier, in the last hearing of the matter, senior counsel Shanti Bhushan had emphasised on this point saying that reservation in government jobs at entry point would be for the “class of backward people”, but subsequent intra-cadre reservation would be for an individual, as having occupied a position in government service he cannot be described as backward.

The hearing will continue on Thursday.

Published on: Aug 29, 2018 at 20:40 IST

IANS