Kumar Thakur Vs. Union of
India and Ors
 Insc 334 (29 March 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
I.A. No.13 IN WRIT PETITION (CIVIL) NO. 265 OF 2006 (With WP (Civil) Nos.
269/2006, 598/2006, 35/2007 and 29/2007) Dr. ARIJIT PASAYAT, J.
In this I.A. prayer has been made to grant interim protection pending final
disposal of the writ petitions.
In the writ petitions the policy of 27% reservation for the Other Backward
Classes (in short the 'OBCs') contained in the Central Educational Institutions
(Reservation in Admission) Act, 2006 (in short the 'Act') is the subject matter
of challenge. The primary ground of challenge is that the Union of India has
failed in performing the constitutional and legal duties toward the citizenry
and its resultant effect. Consequentially the Act shall have the effect and
wide ramifications and ultimately it shall have the result in dividing the
country on caste basis. It would lead to chaos, confusion, and anarchy which
would have destructive impact on the peaceful atmosphere in the educational and
other institutions and would seriously affect social and communal harmony. The
constitutional guarantee of equality and equal opportunity shall be seriously
prejudiced. It has been contended that a time has come to replace the
"vote bank" scenario with "talent bank". The statute in
question, it is contended, has lost sight of the social catastrophe it is
likely to unleash. Not only the products would be intellectual pigmies as
compared to normal intellectual sound students presently passing out. It has
been highlighted that on the basis of unfounded and unsupportable data about
the number of OBCs in the country the Act has been enacted. It has been pointed
out that this Court in Indra Sawhney v. Union of India and Ors. (1992 Supp. (3)
SCC 217) had recognised the concept of "creamy layer" amongst the
advanced OBCs to be kept out of preferential treatment. The population data of
52% projected by the Mandal Commission was not actually given the seal of acceptance.
In any event, this Court in its judgment dated 16.11.1992 directed the
Government to constitute a permanent body by 15th March, 1993 for examining and
recommending for inclusion or exclusion in the lists of backward classes of
citizens. The National Commission for Backward Classes Act, 1993 (in short the
'Backward Classes Act') defines 'backward classes" to mean such backward
classes of citizens other than the Scheduled Castes and Scheduled Tribes as may
be specified by the Central Government in the lists. In terms of Section 2(c)
of the Act "lists" mean lists prepared by the Government of India
from time to time for the purpose of making provision for the reservation of
appointments or posts in favour of backward classes of citizens which in the opinion
of the Government are not adequately represented in the services under the
Government of India and any legal or other authority within the territory of
India or under the control of the Government of India. Though there is a
specific provision in Section 11 of the Backward Classes Act for a periodic
revision of the lists, same has not been done, and on the contrary additions
are being made. The rational of 27% having been arrived at on the mythical
figure that the OBCs are 52% in the country and even the ratio of 27%
reservation for the students belonging to other backward classes in the
educational institutions is to be funded and controlled by the Central
Government. The same is to be enforced from May 2007. It is highlighted that
after 1931 census there has never been any caste-wise enumeration or tabulation
which in essence corrodes the credibility of the claim of 52% population of
other backward classes.
It is pointed out that in terms of Section 2(g), 3(iii), Sections 5(1)(2)
and 6 of the Act, 27% seats are being reserved for other backward classes out
of only permitted strength. The expression "Other Backward Classes"
means the class or classes of citizens who are socially or educationally
backward and are so determined by the Central Government. There has never been
any determination on any acceptable basis. The parameters provided in the
Backward Classes Act have not been kept in view. Without supportable data the
introduction of a Statute which would have the effect of disturbing the harmony
in the society was avoidable. Though it has been provided that increase in the
number of seats can be done in a staggered manner, that is really of no
The stand that number of seats available for the general categories remains
unaffected is really not a solution as in essence unequals are treated as
equals. The very concept of equality enshrined in Article 14 of the
Constitution of India, 1950 (in short the 'Constitution') is directly affected.
Reference is made to the figures provided by the National Samples Survey of
India and the National Health and Family Survey (Government of India's own
Departments) which clearly establish the hollowness of the claim about OBCs
being 52% of the population. The source for the enactment of the Act was the
93rd amendment to the Constitution which has come into force w.e.f. 20.1.2006
by insertion of Clause (5) in Article 15 of the Constitution.
Prayer has been made to declare certain provisions in the Act to be
The effect of the judgments in M. Nagaraj and Ors. v.
Union of India and Ors. (2006 (8) SCC 212) and Nair Service Society v. State
of Kerala (Writ Petition (Civil) No.
598 of 2000 etc. decided on 23.02.2007) has not been considered. It has been
emphasized that what may have been relevant eight decades back cannot hold good
in the present scenario. There has to be indepth analysis to find out the
number of socially and educationally backward class of citizens. The concept of
Backward class citizens is dealt with in para 786 of Indra Sawhney's case
(supra). It is pointed out that in the immediately succeeding paragraph i.e.
Paragraph 787 the position has been clarified. In that paragraph reference has
also been made at page 720 that certain classes which may not qualify for
Article 15(4) may qualify for Article 16(4). Reference is made to Janki Prasad
Parimoo v. State of J & K (1973 (1) SCC 420) to contend that it is social
and educational backwardness of a class which is material for the purposes of
Articles 16(4). It does not have determinative relevance for the purposes of
Articles 15(4) and 15(5). Further reference is also made to the concluding para
859 in Indra Sawhney's case (supra) where it has been said in category (3)(c)
that it is not correct to say that backward class of citizens contemplated in
Article 16(4) is the same as the socially and educationally backward classes
referred to in Article 15(4).
It is much wider. Therefore, it is submitted that the concept of socially
and educationally backward classes in Article 15(4) stand on a different
footing from Article 16(4) and consequentially Article 15(5) is different from
It has been highlighted that in any event the concept of creamy layer which
has been completely kept out of consideration in the Statute has great relevance
The criteria of Article 16(4) and the lists under the Backward Classes Act
can at the most provide a rough and ready rule for the purpose of Articles
15(4) and 15(5) but that does not in any way take care of the requirements of
Section 11 of the Backward Classes Act. There is no report subsequent to
3.2.2005 by the National Commission for the Backward Classes. Therefore, it is
highlighted that the whole exercise has been done in great hurry without any
justifiable reason. Since there is no data base after 1931 census, what the
Government could have done is to find out a definite data base and then take
such action as is permissible in law. Even otherwise, the Office Memorandum
bearing No.36012/31/90-Est.(SCT) dated 13.8.1990 on which great emphasis has
been laid by learned Additional Solicitor General for the respondent- Union of
India, does not take note of another O.M.No.36012/22/93-Estt.(SCT) dated
8.9.1993 which expressly states as follows:
"(d) The OBCs for the purpose of the aforesaid reservation would
comprise, in the first phase, the castes and communities which are common to
both the lists in the report of the Mandal Commission and the State
Governments' Lists. A list of such castes and communities is being issued
separately by the Ministry of Welfare."
It has been pointed out that the Act itself specifically requires a
determination of socially and educationally backward classes to be made by the
Central Government, as is clear from a bare reading of Section 2(g). That has
not been done for the purposes of the Act and by referring to the lists meant
for cases covered by Article 16(4) the requirements have not been met, there
cannot be any basis for contending that the "creamy layer concept"
attached to Article 16(4) has no relevance for Articles 15(4) and 15(5). It is
pointed out that the intention of the Parliament does not appear to be that any
existing list under Article 16(4) should be treated as the foundation for
Section 2(g) of the Act. The determination should be made "in futuro"
and not by adopting any past determination by the National Commission for the
purposes of Article 15(5). The "special provision of law" under
Article 15(5) is the Act which provides that OBCs must be so determined for the
purposes of the Act by the Central Government (underlined for emphasis). There
has been no separate determination.
In essence, it is submitted that the baseless figure of 27% cannot be
pressed into service for introducing a Statute which has such wide
ramifications. No methodology has been laid down for determining the socially
and educationally backward classes because castes alone should not be made the
basis for identification even though there appears to be some casual
observations in Indra Sawhney's case (supra) as contended by learned Additional
Solicitor General that castes can be synonyms with class.
That is not the correct approach. It was only stated that castes may be the
starting point for identifying the backward class, but it can not definitely be
the sole basis.
The figure of 27% it is emphasized is an imaginary figure with no rational.
The non exclusion of "creamy layer"
has also affected the validity of the Statute.
In addition to these aspects highlighted by Mr. F.S.
Nariman, Senior Advocate, Mr. P.P. Rao, Senior Advocate, Mr. M.L. Lahoti,
Advocate, Mr. Sushil Kr. Jain, Advocate, Mr. V. Tankha, Senior Advocate, Mr.
Ashoka Kr. Thakur and Dr. Mittal, who appear in person, have more or less
highlighted to similar effect.
Mr. P.P. Rao, Senior Advocate, with reference to certain observations in
Indra Sawhney's case (supra) has submitted that inclusion of castes in the
lists of backward classes cannot be mechanic and cannot be done without
adequate relevant data.
The following reports have also been referred to highlight as to how figures
arrived at by the Union are erroneous.
"(a) The National Sample Survey Organisation survey of 1999-2000 which
shows that the present educational level is directly proportionate to his/her
economic condition. (pp. 14-15 para 7.21, 7.22 and 7.23) (b) Section 11 of the
National Commission for Backward Classes Act, 1993 which says "The Central
Government may at any time, and shall, at the expiration of ten years from the
coming into force of this Act and every succeeding period of ten years thereafter,
undertake revision of the lists with a view to excluding from such lists those
classes who have ceased to be backward classes or for including in such lists
new backward classes.
(c) Standing Committee on Social Justice and Empowerment Chaired by Sumitra
Mahajan 2005-2006 (pp 18-22 - Copy of the Report is Annexure P-lI in Vol.II at
(d) 186th Report of the Parliamentary Standing Committee of Human Resources
Development submitted to the Parliament on 1-12-2006 (pp. 22-23 paras 8.8 to 8.13).
The Report is Annexure P-Ill in Vol.II at pp.218-227).
(e) Annual Report of National Commission for Backward Classes dt. 3-2-2005.
(Para 8.14 at pp 25-26). The Report is Annexure P-IV in Vol.II at pp. 228-317.
(f) Report of the Oversight Committee constituted under the Orders of the
Prime Minister on 27-5-2006 (pp. 29-30 para 8.19 to 8.21). The Report is
Annexure P-V in Vol.II at pp 318-353."
It is pointed out that Office Memoranda of 1990 and 1991 referred to in
Indra Sawhney's case (supra) cannot hold the field forever. It is pointed out
that if that continues to be so, Section 11 of the Backward Classes Act would
be rendered nugatory. The revision of the lists was called for after expiration
of the period of 10 years. The non-revision renders the acceptability of the
figures doubtful and basisless.
In Mandal Commission's Report it was inter-alia observed as follows:
"On the basis of the Commission's Report - popularly known as Mandal
Commission's Report -(for short 'the Report'), two Office Memoranda - one dated
August 13, 1990 and the other amended one dated September 25, 1991 were issued
by the Government of India.
We are reproducing those Memoranda hereunder for proper understanding and
appreciation of the significance of these two OMs and the distinctions
appearing between them:
"No. 36012/31/90-Estt. (SCT) Government of India Ministry of Personnel,
Public Grievances & Pensions (Deptt. of Personnel & Training) OFFICE
MEMORANDUM New Delhi, the 13th August, 1990 Subject: Recommendation of the
Second Backward Classes Commission (Mandal Report) - Reservation for Socially
and Educationally Backward Classes in Services under the Government of India.
In a multiple undulating society like ours, early achievement of the
objective of social justice as enshrined in the Constitution is a must. The
second Backward Classes Commission called the Mandal Commission was established
by the then Government with this purpose in view, which submitted its report to
the Government of India on 31.12. 1980.
2. Government have carefully considered the report and the recommendations
of the Commission in the present context responding the benefits to be extended
to the socially and educationally backward classes as opined by the Commission
and are of the clear view that at the outset certain weightage has to be
provided to such classes in the services of the Union and their Public
Accordingly orders are issued as follows:
(i) 27 per cent of the vacancies in civil posts and services under the
Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by
direct recruitment. Detailed instructions relating to the procedure to be
followed for enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an
open competition on the same standards prescribed for the general candidates
shall not be adjusted against the reservation quota of 27 per cent.
(iv) The SEBC would comprise in the first phase the castes and communities
which are common to both, the list in the report of the Mandal Commission and
the State Governments' lists. A list of such castes/communities is being issued
(v) The aforesaid reservation shall take effect from 7.8.1990. However, this
will not apply to vacancies where the recruitment process has already been
initiated prior to the issue of these orders.
Similar instructions in respect of public sector undertakings and financial
institutions including public sector banks will be issued by the Department of
Public Enterprises and Ministry of Finance respectively.
(Smt Krishna Singh) Joint Secretary to the Govt. of India"
"No. 36012/31/90-Estt. (SCT) Government of India Ministry of Personnel,
Public Grievances &
Pensions (Deptt.of Personnel & Training) OFFICE MEMORANDUM New Delhi,
the 25th September 1991 Subject: Recommendation of the Second Backward Classes
Commission (Mandal Report) - Reservation for Socially and Educationally
Backward Classes in Services under the Government of India.
The undersigned is directed to invite the attention to O.M. of ever number
dated the 13th August 1990, on the above sections of the SEBCs to receive the
benefits of reservation on a preferential basis and to provide reservation for
other economically backward sections of the people not covered by any of the
existing schemes of reservation, Government have decided to amend the said
Memorandum with immediate effect as follows:
2. (i) Within the 27 per cent of the vacancies in civil posts and services
under the Government of India reserved for SEBCs, preference shall be given to
candidates belonging to the poorer sections of the SEBCs. In case sufficient
number of such candidates are not available, unfilled vacancies shall be filled
by the other SEBC candidates.
(ii) 10 per cent of the vacancies in civil posts and services under the
Government of India shall be reserved for other economically backward sections
of the people who are not covered by any of the existing schemes of
(iii) The criteria for determining the poorer sections of the SEBCs or the
other economically backward sections of the people who are not covered by any
of the existing schemes of reservations are being issued separately.
3. The O.M. of even number dated the 13th August 1990, shall be deemed to
have been amended to the extent specified above.
Sd/ (A.K. Harit) Dy. Secretary to the Govt. of India"
The expression deployed in both the OMs, "Socially and Educationally
Backward Classes" is on the strength of the Report of the Commission,
though no such expression is used in Article 16(4) whereunder the reservation
or appointments or posts in favour of any backward class of citizens is to be
made. This expression is used as an explanatory one to the words 'backward
class' occurring in Article 16(4). Articles 16(4) and 340(1) were embodied in
the Constitution even at the initial stage; but Article 15(4) containing the
same expression as in Article 340(1) was subsequently added by the Constitution
(First Amendment) Act of 1951 to override the decision of this Court in State
of Madras v. Smt Champakam Dorairajan (1951 SCR 525)"
According to Mr. M.L. Lahoti, the Act specifically overlooks the mandate of
Article 340 of the Constitution.
According to him also the specific directions given by this Court in Indra
Sawhney's case (supra) have been dis- regarded. Specific reference in this
context is made to Section 11 of the Backward Classes Act. It is submitted that
Article 340 provides that the condition of socially and educationally backward
classes is to be investigated imperatively. Reference is also made to K.C.
Vasanth Kumar and Anr. v. State of Karnataka (1985 Supp SCC 714) to submit that
the policy of reservation for employment and education should be necessarily
It was noted in that case that a time has come to review the criterion for
identifying socially and educationally backward classes ignoring the caste
label. Identification is an imperative requirement and cannot be by-passed on
any ipsi-dixi referring to out-dated data based on 1931 census.
The object of advancement of socially and educationally backward classes
undisputedly brings in the concept of creamy layer. Certain institutions are
basically super specialty institutions e.g. All India Institute of Medical
Science (AIIMS). If the character of an institution of super specialty of
national importance is permitted to be affected in the manner sought to be done
it would be counted productive. That would affect quality of education.
About the Mandal Commission's report, it has been pointed out by Dr. Mittal
who appears in person that survey conducted selected 0.15 of the total villages
population and 7% of the district blocks. There is nothing to suggest as to on
what basis the particular village or particular district was selected. The
Commission itself distributed two groups (a) intermediate OBC and (b) depressed
OBC, which were equi-distributed. It has been emphasized that the Mandal
Commission while arriving at the figure of 52% population of OBC had added 8.6%
population of other non Hindu communities. Thus, non Hindu communities formed
17% of the total OBC population. The management of social backwardness, it is
submitted, has to be dynamic which means that the various measures to be
adopted as a remedy have to be time bound and reviewable.
In response, Mr. Gopal Subramanium, learned ASG appearing for the Union has
submitted that all the issues that are being raised have been appropriately
dealt with in Indra Sawhney's case (supra) and long earlier in Minor P.
Rajendra v. State of Madras and Ors. [1968 (2) SCR 786]. It is submitted
that reservation whether in employment or in education is not violative of the
basic structure or equality code. Various provisions in the Constitution
acknowledge that reservation is an integral part of the principle of equality
where inequality exists. There is nothing wrong or unconstitutional in
specifying in terms of units of castes, those who have been identified as
"Socially and Educationally Backward Classes" on the basis of
criteria of social and educational backwardness. Reservation is not anti merit.
In the absence of caste data after 1931, there was no alternative but to
project the population proportion of social and educational backward classes
and other backward classes from the next best source i.e. latest available
census of 1931. The identification and listing of such classes by Mandal
Commission has nothing to do with the census of 1931 but was based on multiple
approach in the contemporary context only and not in the context of 1931.
Determination or classification as to which class belongs to social and
educational backward class or other backward class as made by the Government of
India is valid and the Backward Classes Commission has a statutory function of
examining as to which class included in the list is not really backward.
Reservation policy is not dis-integrative and is not against the unity and
integrity of the nation. On the contrary, according to him, reservation policy
is a means of integrating the society disintegrated over the centuries by the
age old caste system. It is submitted that the lists of OBCs identified on the
basis of social and educational backwardness have been determined. The Ministry
of Welfare (now named as Ministry of Social Justice & Empowerment) is in
charge of the subject. There are State-wise lists. Once issued, these lists
continue to be in force and are binding for any or all purposes, subject to
modifications, deletions, additions from time to time in accordance with the
Backward Classes Act and in the light of decision in Indra Sawhney's case
The lists of Scheduled Castes and Scheduled Tribes categories covered by
Clause (h) and (i) of Section 2 have already been notified in the past, and are
subject to changes in accordance with Articles 341 and 342 of the Constitution.
The fact that there has been centuries long historical oppression in
relation to Scheduled Castes and Scheduled Tribes and Socially and
Educationally Backward Classes and Other Backward Classes, has been recognized
by this Court in Indra Sawhney's case (supra).
Reference is also made to the decision of this Court in State of A.P. v.
U.S.V. Balram (1972 (1) SCC 660) which was referred to in Indra Sawhney's case
The contentions, as noted above, have not only focused on legal issues but
also on factors of great social relevance. The issues need deeper consideration
in the background of their legal and social importance. The only question is
whether it would be desirable to stay process of implementation of the Act and,
if so, to what extent.
There is no dispute and in fact it was fairly accepted by learned Additional
Solicitor General that there is need for periodical identification of the
backward citizens and for this purpose the need for survey of entire population
on the basis of an acceptable mechanism. What may have been relevant in 1931
census may have some relevance but cannot be the determinative factor. As was
observed by this Court in Nagaraj's case (supra) backwardness has to be based
on objective factors whereas inadequacy has to factually exist.
Even in Indra Sawhney (II) [2000 (1) SCC 168] at Para 9 it was held as
"9. Inclusion of castes in the list of backward classes cannot be
mechanical and cannot be done without adequate relevant data. Nor can it be
done for extraneous reasons. Care should be taken that the forward castes do
not get included in the backward castes' list. In Indra Sawhney' Pandian, J.
observed (SCC p. 408, para 174) that before a conclusion is drawn that a caste
is backward or is inadequately represented in the services, "the existence
of circumstances relevant to the formation of opinions is a sine qua non. If
the opinion suffers from the vice of non-application of mind or formulation of
collateral grounds or beyond the scope of statute, or irrelevant and extraneous
material, then that opinion is challengeable".
Sawant, J. (see para 539 of SCC) too pointed out the need for proper
application of mind to the facts and circumstances, the field, the post and the
extent of existing representation and the need to balance representation. On
behalf of himself and three others, Jeevan Reddy, J. pointed out (para 798 SCC)
that opinion in regard to backwardness and inadequate representation must be
based on relevant material. The scope of judicial scrutiny even with regard to
matters relating to subjective satisfaction are governed by the principles
stated in Barium Chemicals Ltd. v. Company Law Board (AIR 1967 SC 295).
Likewise, periodic examination of a backward class could lead to its exclusion
if it ceases to be socially backward or if it is adequately represented in the
services. Once backward, always backward is not acceptable. In any case, the
"creamy layer" has no place in the reservation system."
The concept of creamy layer cannot prima facie be considered to be
irrelevant. It has also to be noted that nowhere else in the world do castes,
classes or communities queue up for the sake of gaining backward status. Nowhere
else in the world is there competition to assert backwardness and then to claim
we are more backward than you. This truth was recognized as unhappy and
disturbing situation and such situation was noted by this Court as a stark
reality in Indra Sawhney's case (supra).
According to some jurists, equality as a fundamental substantive norm is a
characteristic feature of many democratic Constitutions. In societies that are
diverse or in societies where certain groups of people were subjected to
discrimination in the past subscription to the norm of equality necessitates an
element of affirmative action. That may be the underlying object of Article 15.
In India the "Varna" system of the early Vedic period was distorted
and became a rigid and hierarchical caste system which resulted in lower castes
being socially oppressed and economically exploited. Whatever be the truth in
this plea, in the late 19th and early 20th century social reform movements
started. An eminent jurist has noted that the equality provisions in the Indian
Constitution were intended to be a pro-active means of social engineering and
it is against this backdrop that the jurisprudence of reservations has
developed in the Indian context. By contrast, the scenario in United States and
South Africa can be looked at. The Constitution of US is older in point of time
than that of Indian or South African Constitution.
When it was initially adopted there was no mention of equality. The
institution of slavery was legally sanctioned. It was only after the Civil War
that the Thirteenth and fourteenth amendments to the Constitution were enacted.
The institution of slavery was abolished and "equal protection
clause" came to be enacted.
The "separate but equal doctrine" was sanctified by the decision
of US Supreme Court in Plessy v. Ferguson (163 US 537). But the formal equality
was established in US after the decision in Brown v. Board of Education (347 US
483) and the Civil Rights Act, 1964. It is to be noted that in both the United
States and South Africa, the past discrimination was along racial lines.
This Court has in several instances focused on the question as to whether
Articles 15(4) and 16(4) are a facet of equality or a derogation from it.
Equality of opportunity is not simply a matter of legal equality. Its
existence depends not merely on the absence of disabilities but on the presence
of abilities. Where, therefore, there is inequality in fact, legal equality
always tends to accentuate it. (See Dr. Pradeep Jain and Ors. v.
Union of India and Ors. (1984 (3) SCC 654).
In Indra Sawhney's case (supra) it appears that underlying principles which
have been identified are the identification of class, which was held to be
affirmative by using castes as a proxy. The State was Constitutionally empowered
to enact affirmative action measures for backward classes.
Differentiation or classifications for special preference must not be unduly
unfair for the persons left out of the favoured groups.
There is another question which has been emphasized by learned counsel for
the petitioners is that the policy of reservation cannot be and should not be
intended to be permanent or perpetuate backwardness.
In a very significant judgment in Grutter v. Bollinger (539 US 306) the US
Supreme Court upheld the law school admission programme because it found
"compelling state interest in diversity" in higher education.
Referring to an earlier judgment in Regents of University of California v.
Allan Bakke (438 US265) the US Supreme Court by majority held that the school's
interest in obtaining a "critical mass" of minority students was
indeed a "tailored use". Majority opinion was to the effect that race
conscious admissions policies must be limited in time and that with the efflux
of time the use of racial preferences would no longer be necessary.
According to South African Constitution the right in the Bill of Rights may
be limited so long as the limitation is "justifiable in an open and
democratic society based on human dignity, equality and freedom". The
justifiability of the limitation must be assessed by evaluating the nature of
the right, the nature and extent of the limitation, the importance of the
purpose of the limitation, the relation between the limitation and the purpose
and less restrictive means to achieve the purpose.
It remains to be examined as to whether a different form of preferential
treatment other than quotas could be employed as at some stage an affirmative
action concept can be focused in this direction also. Though it is submitted
that the number of seats available for the general category is not affected,
but that is really no answer to the broader issue.
If there is possibility of increase in seats in the absence of reservation
it could have gone to the general category. If the stand of learned Additional
Solicitor General is accepted that the exercise was not intended to be
undertaken immediately and the increase would be staggered over a period of 3
years it could not be explained as to why a firm data base could not be evolved
first, so that the exercise could be undertaken thereafter. By increasing the
number of seats for the purpose of reservation unequals are treated as equals.
The stand of learned Additional Solicitor General is that imperfection may be
there in the data but so far as the existing modalities are concerned there is
no difficulty in adopting the same.
Another important factor which needs to be noted is the concept of 'Creamy
In M. Nagaraj's case (supra) it was inter-alia held as follows:
"123. However, in this case, as stated above, the main issue concerns
the "extent of reservation". In this regard the State concerned will
have to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative
efficiency before making provisions for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has to collect
quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance
with Article 335. 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
In Nair Service Society's case (supra) it was noted as follows:
"36. Recently, a Constitution Bench of this Court in M. Nagaraj and
Ors. v. Union of India and Ors. has reaffirmed the importance of the creamy
layer principle in the scheme of equality under the Constitution. This Court
held that the creamy layer principle was on of the important limits on State
power under the Equality Clause enshrined under Articles 14 and 16 and any
violation of dilution of the same would render the State action invalid. More
precisely this Court held:
"As stated above, the boundaries of the width of the power, namely, the
ceiling-limit of 5O% (the numerical benchmark), the principle of creamy layer,
the compelling reasons, namely, backwardness, inadequacy of representation and
the overall administrative efficiency are not obliterated by the impugned
At the appropriate time, we have to consider the law as enacted by various
States providing for reservation if challenged. At that time we have to see
whether limitations on the exercise of power are violated. The State is free to
exercise its discretion of providing for reservation subject to limitation,
namely, that there must exist compelling reasons of backwardness, inadequacy of
representation in a class of post(s) keeping in mind the overall administrative
efficiency. It is made clear that even if the State has reasons to make
reservation, as stated above, if the impugned law violates any of the above
substantive limits on the width of the power the same would be liable to be set
37. This Court reiterated the limit on State power imposed by the creamy
layer rule and the invalidity of any State action in violation of the same by
concluding as follows:
"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. However, in this case, as stated, the main issue concerns the
"extent of reservation". In this regard the concerned State will have
to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative
efficiency before making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make
reservation for SC/ST in matter of promotions. However if they wish to exercise
their discretion and make such provision, the State has to collect quantifiable
data showing backwardness of the class and inadequacy of representation of that
class in public employment in addition to compliance of Article 335. 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".
38. This Court rationalized the creamy layer rule as a necessary bargain
between the competing ends of caste based reservations and the principle of
secularism. The Court opined:
"In Indra Sawhney this Court has, therefore, accepted caste as
determinant of backwardness and yet it has struck a balance with the principle
of secularism which is the basic feature of the Constitution by bringing in the
concept of creamy layer".
This Court, thus, has categorically laid down the law that determination of
creamy layer is a part of the constitutional scheme."
It, therefore, needs no reiteration that the creamy layer rule is a
necessary bargain between the competing ends of caste based reservations and
the principle of secularism. It is a part of constitutional scheme. Therefore
these cases have to be examined in detail as to whether the stand of Union of
India that creamy layer rule is applicable to only Article 16(4) and not
Article 15(5) is based on any sound foundation. That is more so because the
lists relatable to Article 16(4) form the foundational base for Article 15(5).
In the background of what has been explained above, it would be desirable to
keep in hold the operation of the Act so far as it relates to Section 6 thereof
for the OBCs category only. We make it clear that we are not staying operation
of the Statute, particularly, Section 6 so far as the Scheduled Castes and
Scheduled Tribes candidates are concerned. It would be permissible for the
respondent- Union of India to initiate or continue process, if any, for
determining on a broad based foundation "Other Backward Classes"
notwithstanding pendency of the cases before this Court and without prejudice
to the issues involved.
The writ petitions be listed in the 3rd week of August, 2007 for final
hearing. I.A. is accordingly disposed of.
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