The M Nagaraj verdict of 2006 had held that the 'creamy layer' concept cannot be applied to the Scheduled Castes and Scheduled Tribes for promotions in government jobs, like two 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 in Other Backward Classes category.
Attorney General K K Venugopal, appearing for the Centre, said the matter required urgent consideration by a seven-judge constitution bench as lakhs of jobs in Railways and the services were stuck due to confusion over various judicial pronouncements. Senior advocate Rajeev Dhavan, appearing for one of the petitioners, contended that a lot of confusion has occurred due to conflicting judicial pronouncements given by different benches of apex court and high courts.
He said that one of the orders says there would be "status quo" as far as reservation in promotion to SC/ST employees are concerned, while another order by a bench headed by Justice Kurian Joseph in a similar matter held that pendency of a petition before a court shall not stand in the way of the Centre taking steps for the purpose of promotion.
The AG said he supported senior advocate Dhavan on this point as there are several aspects which needed to be looked into and conflicting orders were causing confusion. The bench said that a five-judge constitution bench was already seized of various matters and it will take time to conclude the arguments.
Senior advocate Shekhar Naphade, appearing for Maharashtra, maintained there was no confusion and said "this practice of referring the matter to larger bench needs to be stopped. There is reference to a larger bench every five years. This practice needs to be stopped. There has to be some certainty in the law."
The Attorney General said that in the reference order, there were several grounds given for consideration by a larger bench. When some counsel said that some interim orders can be passed in the matter, the bench, said it would hear the matter on August 3. On June 5, in a major relief to the Centre, the apex court had allowed it to go ahead with reservations in promotion for SC/ST employees in accordance with law.
The top court took into account the Centre's submissions that the entire process of promotions had come to a "standstill" due to the orders of various high courts and the topcourt had also ordered "status quo" in a similar matter in 2015. It had said the Centre was not "debarred" from making promotions. The government had said there were separate verdicts by the high courts of Delhi, Bombay and Punjab and Haryana on the issue of reservation in promotion to SC/ST employees and the apex court had also passed different orders on appeals filed against those judgement.
On November 15 last year, the top court had said a five-judge constitution bench will examine the limited issue of whether the 2006 verdict delivered in M Nagaraj and other versus Union of India was required to be re-looked at or not. The two-judge bench in its reference order had said that clarity was required on the applications in creamy layer in a situation of competing claims within the same races, communities or groups.
It had sought clarification on Articles 16(4), 16(4A) and 16(4B) of the Constitution which dealt with the power of state government to make provisions for reservation of appointments or posts in favour of any backward class of citizens which was not adequately represented in the services under the state. The Nagaraj verdict had reiterated that the ceiling-limit of 50 per cent, the concept of the creamy layer and the compelling reasons like backwardness, inadequacy of representation and overall administrative efficiency were all constitutional requirements, without which the structure of equality of opportunity in Article 16 would collapse. It had also said the state was not bound to make reservation for SC/ST in matter of promotions.