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The fresh petition has been filed by Samta Andolan Samiti and O.P. Shukla, a former IAS officer

The Union government on Monday asked the Supreme Court to refer to a seven-judge Bench the question whether the creamy layer should apply or not to the Scheduled Caste/Scheduled Tribe people while providing them reservation in government promotions.

On September 26, 2018, a five-judge Bench of the court unanimously agreed with a 2006 judgment of another five-judge Bench in the M. Nagaraj case, which upheld the application of creamy layer principle to SC/ST in promotions.

The 2018 judgment, authored by Justice Rohinton F. Nariman, also refused the government’s plea to refer the 2006 Nagaraj judgment to a seven-judge Bench. On Monday, however, Attorney General K.K. Venugopal urged the court to reconsider and refer the judgment to a seven-judge Bench. 

A Bench led by Chief Justice of India Sharad A. Bobde agreed to hear the case after two weeks.

The 2018 judgment, while modifying a part of the Nagaraj verdict that required the States to show quantifiable data to prove the “backwardness” of a SC/ST community in order to provide quota in promotion in public employment, however, rejected the Centre’s argument that Nagaraj had misread the creamy layer concept by applying it to SC/ST.

“The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were,” Justice Nariman had upheld Nagaraj’s direction.

The 2018 judgment said that when a court applied the creamy layer principle to SCs and STs, it did not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution. The caste or group or sub-group named in the said list continues exactly as before, Justice Nariman had reasoned.

“It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation,” Justice Nariman had explained.