Creamy layer concept not for promotion, apex court told

Karnataka’s Scheduled Castes, Scheduled Tribes (SC/ST) Employees’ Association on Wednesday contended before the Supreme Court that the SC/ST employees will continue to remain as backward, forcing the state authorities to take positive steps, like reservation in promotion, to protect them as long as untouchability and cases of atrocities against the community continue in the country.

The association maintained that the principle of the creamy layer cannot be applied in their case as they are declared as backward in the Constitution.

Presenting the arguments on behalf of the SC/ST employees, senior advocate Indira Jaising also pointed out before a bench of Justices U U Lalit and D Y Chandrachud that the Constitution bench’s judgement in ‘Jarnail Singh’ (2018) is not about the creamy layer.

She also maintained that the apex court’s judgement in M Nagaraj (2006) case also did not deal with the concept of creamy layer. The counsel defended the state legislation brought in to protect the reservation in promotion as the apex court had quashed it in the ‘B K Pavithra’ case judgement in February 2017. Jaising also said the state law was passed after collection of data showing the inadequacy of representation.

Her contention was countered by senior advocate Rajeev Dhavan and advocate Kumar Parimal who said that the state had maintained that the data on representation was not collected from boards, corporations and the KPTCL. In the Public Works Department, the data showed over-representation of the SC/ST members, he said.

Jaising, for her part, contended that as far as the criterion of administrative efficiency is concerned, providing reservation in promotion to the SC/ST employees will in no way affect it, as the authorities always relied upon the individual annual confidential report to give such benefits.

She supported the Karnataka government’s contention that the concept of creamy layer is not applicable in promotion as it can be considered at the entry level on appointments, but only in the case of Other Backward Classes, who become socially and economically forward.