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JARNAIL SINGH vs LACHHMI NARAIN GUPTA . On 2018-09-26

HEADNOTE

xxx xxx xxx (4 -A) Nothing in this article shall prevent the State from making any provision for reser vation in matters of promotion , with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented i n the services under the State.The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: Provided that nothing in this article shall prevent in making o f any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of serv ices or posts in connection with the affairs of the Union or of a State.(1) The President m ay with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by pu blic notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes o
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xxx xxx xxx (4 -A) Nothing in this article shall prevent the State from making any provision for reser vation in matters of promotion , with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented i n the services under the State.The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: Provided that nothing in this article shall prevent in making o f any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of serv ices or posts in connection with the affairs of the Union or of a State.(1) The President m ay with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by pu blic notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Unio n territory, as the case may be .(1) The President may with respect to any State or Union territory , and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Unio n territory, as the case may be .quantifiable data showing backwardness, such observ ation would be contrary to the nine -Judge Bench in Indra Sawhney v. Union of India , 1992 Supp (3) SCC 217, (Indra Sawhney (1) ), as it has been held therein that the Scheduled Castes and the Scheduled Tribes are the most back ward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the Scheduled Castes and the Scheduled Tribes all over again.posts, it becomes clear that a Scheduled Caste/Schedul ed Tri be employee may have cast off his backwardness when he/she reaches a fairly high stage in a service , for example , the post of Deputy Chief Engineer , at which stage , it would be open for the State to say that having regard to the absence of any backwardness of the Scheduled Caste/Scheduled Tribe employee at this stage, it would be expedient not to reserve anything further in posts above this stage.It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revisi on of the earlier view is based On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bea ring on the point not noticed Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view What would be the impact of the error on the general administration of law or on public good Has the earlier decision been foll owed on subsequent occasions either by this Court or by the High Courts And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief These and other relevant considerations must be carefully borne in mind whenever th is Court is called upon to exercise its jurisdiction to review and revise its earlier decisions.While considering the concept of means -test or creamy layer, which signifies imposition of an income limit, for the purpose of excluding the persons (from the backward class) whose income is above the said limit, in para 791, the Court has noted that counsel for the States of Bihar, T amil Nadu, Kerala and other counsel for the respondents strongly opposed any such distinction and submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is not permissible to apply the economic criterion once again and sub -divide a backward class into two sub -categories.Chinnaiahs judgment (supra) in essence held that the Andhra Pradesh Scheduled Castes (Ratio nalisation of Reservations) Act, 2000, which it considered , could not further sub -divide Scheduled Castes into four categories , as that would be violative of Article 341(2) of the Constitution of India for the simple reason that it is Parliament alone that can make any change in the Presi dential List and not the State L egislatures.To be accepted as backward classes for the purpose of reservation under Article 15 or Article 16, their backwardness must have been either recognised by means of a notification by the President under Article 341 or Article 342 declaring them to be Scheduled Castes or Scheduled Tribes, or, on an objective consideration, identified by the State to be socially and educationally so ba ckward by reason of identified prior discrimination and its continuing ill effects as to be comparable to the Scheduled Castes or the Scheduled Tribes.Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub -groups co ntained within these Lists, it is clear that Constitutional C ourts , applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group o r sub - group in the Presidential List may be kept out by Parliament on application of the creamy layer principle.Power Corporation Ltd. (supra) , and would have substituted Article 16(4 -A) as follows: (4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and artic le 342, respectively, shall be deemed to be backward an d nothing in this article shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in the services unde r the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.Secondly, ins tead of leaving it to the States to determine on a case to case basis whether the Scheduled Castes and the Scheduled Tribes are adequately represented in any class or classes of posts in the services under the State, the substituted provision does not leav e this to the discretion of the State , but specifies that it shall be to the extent of theWe may hasten to add that Shri Dwivedis argument cannot be confused with the concept of creamy lay er which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation , as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Ca stes or the Scheduled Tribes.According to us, Nagaraj (supra) has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account , to reduce the number of Scheduled Castes and Schedu led Tribes in promotional posts, as one goes upwards.(2) The number of seats reserved in any State or Union territory for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State or Union territory in the House of the People as the population of the Scheduled Castes in the State or Union territory or of the Scheduled Tribes in the State or Union territory or part of the State or Union(3) Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous distric ts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the total population of the State.In this article and in Ar ticle 332, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published: Provided that the reference in this Explanation to the last preceding censu s of which the relevant fi gures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the 2001 census.
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SUPREME COURT JUDGEMENT

1 	
 	
REPORTABLE	 	
 
 	
IN THE SUPREME COURT OF INDIA	 	
 	
CIVIL APPELLATE JURISDICTION	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011	 	
 
 
JARNAIL SINGH & OTHERS	 	 	 	 	 PETITIONERS	 	
 
 	
VERSUS	 	
 
 	
LACHHMI NARAIN GUPTA & OTHERS	 	 	RESPONDENTS	 	
 
 
 	
WITH	 	
 
 	
SPECIAL LEAVE PETITION (CIV	IL) NO.31735 OF 2011	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.35000 OF 2011	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.4831 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.2839 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.5860 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.5859 OF	 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.30841 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.8327 OF 2014
2 	
 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.6915 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO	S.16710	-16711 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.33163 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.23344 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO	S.23339	-23340 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.21343 OF 2015	 	
 	
CIVIL APPEAL NOS.4562	-4564 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.25191 OF 2015	 	
 	
CIVIL APPEAL NO.	4880 OF 2017	 	
 	
CIVIL APPEAL NOS.4878	-4879 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.31191 OF 2015	 	
 	
CIVIL APPEAL NOS.4876	-4877 OF 2017	 	
 	
CIVIL APPEAL NO.4881 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.33688 OF 2015	 	
 	
CIVIL APPEAL NO.4882 OF 2017	 	
 	
CONTEMPT PET	ITION (CIVIL) NO.314 OF 2016 	 

1 	
 	
REPORTABLE	 	
 
 	
IN THE SUPREME COURT OF INDIA	 	
 	
CIVIL APPELLATE JURISDICTION	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011	 	
 
 
JARNAIL SINGH & OTHERS	 	 	 	 	 PETITIONERS	 	
 
 	
VERSUS	 	
 
 	
LACHHMI NARAIN GUPTA & OTHERS	 	 	RESPONDENTS	 	
 
 
 	
WITH	 	
 
 	
SPECIAL LEAVE PETITION (CIV	IL) NO.31735 OF 2011	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.35000 OF 2011	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.4831 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.2839 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.5860 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.5859 OF	 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.30841 OF 2012	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.8327 OF 2014
2 	
 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.6915 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO	S.16710	-16711 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.33163 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.23344 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO	S.23339	-23340 OF 2014	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.21343 OF 2015	 	
 	
CIVIL APPEAL NOS.4562	-4564 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.25191 OF 2015	 	
 	
CIVIL APPEAL NO.	4880 OF 2017	 	
 	
CIVIL APPEAL NOS.4878	-4879 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.31191 OF 2015	 	
 	
CIVIL APPEAL NOS.4876	-4877 OF 2017	 	
 	
CIVIL APPEAL NO.4881 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.33688 OF 2015	 	
 	
CIVIL APPEAL NO.4882 OF 2017	 	
 	
CONTEMPT PET	ITION (CIVIL) NO.314 OF 2016 	 	
IN	 	
SPECIAL LEAVE PETITION (CIVIL) NO.4831 OF 2012	 	
 	
CIVIL APPEAL NO.5247 OF 2016	 	
 	
CIVIL APPEAL NO.11817 OF 2016
3 	
 	
CIVIL APPEAL NO.11816 OF 2016	 	
 	
CIVIL APPEAL NO.11820 OF 2016	 	
 	
TRANSFER PETITION (CIVIL) NOS.608	-609 OF 2017	 	
 	
CIVIL	 APPEAL NO.4833 OF 2017	 	
 	
CIVIL APPEAL NOS.701	-704 OF 2017	 	
 	
CIVIL APPEAL NOS.11822	-11825 OF 2016	 	
 	
CIVIL APPEAL NOS.11837	-11840 OF 2016	 	
 	
CIVIL APPEAL NOS.11842	-11845 OF 2016	 	
 	
CIVIL APPEAL NOS.11829	-11832 OF 2016	 	
 	
CIVIL APPEAL NOS.11847	-11850 OF 2016	 	
 	
CIVIL A	PPEAL NO.11828 OF 2016	 	
 	
CONTEMPT PETITION (CIVIL) NO.11 OF 2017	 	
IN 	 	
SPECIAL LEAVE PETITION (CIVIL) NO.19765 OF 2015 	 	
@	 SPECIAL LEAVE PETITION (CIVIL) NOS.19765	-19767 OF 2015	 	
 	
CONTEMPT PETITION (CIVIL) NO.13 OF 2017	 	
IN 	 	
SPECIAL LEAVE PETITION (CIVIL) NO.197	67 OF 2015 	 	
@	 SPECIAL LEAVE PETITION (CIVIL) NOS.19765	-19767 OF 2015	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.10638 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO. CC NO.6821 OF 	
2017
4 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.17491 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL)	 NO.18844 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NOS.19422	-19423 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.24681 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.28776 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 201	8 	
DIARY NO.29066 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.30189 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.31145 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NOS.28446	-28447 OF 2017	 	
 	
SPECIAL LEAVE PE	TITION (CIVIL) NO.28306 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.33481 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.33481 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.30942 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.   	 OF 2018	 	
DIARY NO.33488 OF 2017
5 	
 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.34271 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.34520 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.	35324 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.35577 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.35818 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.36305 OF 2017	 	
 	
SPEC	IAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.36377 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.31288 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.38895 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 201	8 	
DIARY NO.42413 OF 2017	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.619 OF 2018
6 	
 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.969 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.971 OF 201	8 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.1042 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.1046 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.1584 OF 2018	 	
 	
SPECIAL LEAVE PETIT	ION (CIVIL) NO.    OF 2018	 	
DIARY NO.2677 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.    OF 2018	 	
DIARY NO.7243 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.16469 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.18925 OF 2018	 	
 	
SPECIAL LEAVE PETITIO	N (CIVIL) NO.    OF 2018	 	
DIARY NO.22349 OF 2018	 	
 	
SPECIAL LEAVE PETITION (CIVIL) NO.22985 OF 2018
7 	
 	
J U D G M E N T	 	
 	R.F. Nariman, J.	 	
 	
1.	 	The  present  group  of  cases  arises  out  of  two  reference  orders 	 	
the  first  by  a 	two	-Judge  Bench 	referred  to  i	n  a 	second  r	eference  order	, 	
dated  15.11.2017	, which 	is  by  a  three	-Judge  Bench	, which  has  referred 	
the correctness of 	the decision in 	M. Nagaraj	 v.	 Union of India	, (2006) 8 	
SCC 212	, (Nagaraj	), to 	a Constitution	 Bench. 	 	
2.	 	The  controversy  in  these  matters 	revolves  around  the 	
interpretation of the following Articl	es of the Constitution of India:	  	
16. 	Equality  of  opportunity  in  matters  of  public 	
employment.		 	
xxx xxx xxx	 	
(4	-A)	 Nothing  in  this  article  shall  prevent  the  State 	
from making any provision for reser	vation in matters 	
of  promotion	,  with  consequential  seniority,  to  any 	
class  or  classes  of  posts  in  the  services  under  the 
State  in  favour  of  the  Scheduled  Castes  and  the 
Scheduled  Tribes  which,  in  the  opinion  of  the  State, 
are  not  adequately  represented  i	n 	the  services 	
under the State.	 	
(4	-B)	 Nothing  in  this  article  shall  prevent  the  State 	
from  considering  any  unfilled  vacancies  of  a  year 
which  are  reserved  for  being  filled  up  in  that  year  in 
accordance  with  any  provision  for  reservation  made 
under clause (4)	 or clause (4	-A) as a separate class 	
of  vacancies  to  be  filled  up  in  any  succeeding  year 
or  years  and  such  class  of  vacancies  shall  not  be
8 	
 	
considered  together  with  the  vacancies  of  the  year 
in  which  they  are  being  filled  up  for  determining  the 
ceiling of f	ifty per cent reservation on total nu	mber of 	
vacancies of that year.	 	
xxx xxx xxx	 	
 
335.	 	Claims  of  Scheduled  Castes  and 	
Scheduled  Tribes  to  services  and  posts.		The 	
claims of the members of the Scheduled Castes and 
the  Scheduled  Tribes  shall  be  taken  into 
consideration,  consistently  with  the  maintenance  of 
efficiency  of  administration,  in  the  making  of 
appointments  to  services  and  posts  in  connection 
with the affairs of the Union or of a State:	 	
 Provided  that  nothing  in  this  article  shall  prevent  in 
making o	f any provision in favour of the members of 	
the  Scheduled  Castes  and the  Scheduled  Tribes  for 
relaxation  in  qualifying  marks  in  any  examination  or 
lowering  the  standards  of  evaluation, for  reservation 
in  matters  of  promotion  to  any  class  or  classes  of 
serv	ices or posts in connection with the affairs of the 	
Union or of a State.	 	
 
xxx xxx xxx	 	
 
341.	 Scheduled  Castes.		(1)  The  President  m	ay 	
with  respect  to  any  State	 or  Union  Territory,  and 	
where  it  is  a  State,  after 	consultation  with  the 	
Governor 	thereof,  by  pu	blic  notification,  specify  the 	
castes,  races  or  tribes  or  parts  of  or  groups  within 
castes,  races  or  tribes  which  shall  for  the  purposes 
of  this  Constitution  be  deemed  to  be  Scheduled 
Castes  in  relation  to  that  State  or  Unio	n  territory,  as 	
the case may be	. 	
(2) Parliament may by law include in or exclude from 
the  list  of  Scheduled  Castes  specified  in  a 
notification  issued  under  clause  (1)  any  caste,  race
9 	
 	
or  tribe  or  part  of  or  group  within  any  caste,  race  or 
tribe,  but  save  as  aforesaid  a  notification  issued	 	
under  the  said  clause  shall  not  be  varied  by  any 
subsequent notification.	 	
 
xxx xxx xxx	 	
 
342.	 Scheduled  Tribes.		(1)  The  President  may 	
with  respect  to  any  State 	or  Union  territory	,  and 	
where  it  is  a  State,  after  consultation  with  the 
Governor 	thereof,	 by 	public  notification,  specify  the 	
tribes  or  tribal  communities  or  parts  of  or  groups 
within tribes or tribal communities which shall for the 
purposes  of  this  Constitution  be  deemed  to  be 
Scheduled  Tribes  in  relation  to  that  State  or  Unio	n 	
territory, as the 	case may be	. 	
(2) Parliament may	 by law include in or exclude from 	
the list of Scheduled Tribes specified in a notification 
issued under clause (1) any tribe or tribal community 
or  part  of  or  group  within  any  tribe  or  tribal 
community,  but  save  as  aforesaid	 a  notification 	
issued  under  the  said  clause  shall  not  be  varied  by 
any subsequent notification.	 	
 	
3.	 	We  have  heard  wide	-ranging  arguments 	on  either  side	 for  a 	
couple  of  days	,  raising  several  points.  However, 	ultimately,	 we  have 	
confined  arguments  to  two  p	oints  which  require  serious  consideration.	 	
The  learned  Attorney  General  for  India	, Shri  K.K.  Venugopal	, led  the 	
charge  for  reconsideration  of 	Nagaraj	 (supra).  According  to 	the 	learned 	
Attorney  General, 	Nagaraj 	(supra) 	needs  to  be  revisited  on 	these  two 	
poi	nts.	 First, when	  Nagaraj	  (supra) 	 states 	 that 	 the State has to collect
10	 	
 	
quantifiable  data  showing  backwardness,  such	 observ	ation	 would  be 	
contrary  to  the  nine	-Judge  Bench  in 	Indra  Sawhney  v.  Union  of  India	, 	
1992  Supp  (3)  SCC  217,	 (Indra	 Sawhney	 (1)	), as  it  has  been  held 	
therein  that 	the 	Scheduled  Castes  and 	the 	Scheduled  Tribes  are  the 	
most  back	ward  among  backward  classes  and  it  is,	 therefore,  presumed 	
that  once  they  are  contained  in  the  Presidential  List  under  Articles  341 
and  342  of  the  Constitution	 of  India,  there  is  no  question  of  showing 	
backwardness  of  the  Scheduled  Castes  and 	the 	Scheduled  Tribes  all 	
over  again. 	Secondly	,  according  to  the  learned  Attorney  General	, the 	
creamy  layer  concept  has  not  been  applied  in 	Indra  Sawhney	 (1)	 	
(supra) 	to the 	Scheduled 	Castes and 	the 	Scheduled Tribes and	 Nagaraj	 	
(supra) 	has  misread  the  aforesaid  judgment  to  apply  this  concept  to  the 	
Scheduled  Castes  and 	the 	Scheduled  Tribes.  According  to  the  learned 	
Attorney General	, once 	the 	Scheduled Cas	tes and 	the 	Scheduled 	Tribes	 	
have  been  set 	out	 in  the  Presidential  List,  they  shall  be  deemed  to  be 	
Scheduled  Castes  and  Scheduled  Tribes,  and  the  said  List  cannot  be 
altered  by  anybody  except  Parliament  under  Articles  341  and  342. 	The 	
learned  Attorney  General  also  argued  that 	Nagaraj	 (supra)  does  not 	
indicate  any  test  for  determining  adequacy  of  representation  in  service. 
According to him, it is important that we lay down that the test be the test
11	 	
 	
of  proportion  of  Scheduled  Castes  and  Scheduled  Tribes  to  the 
population  in  India	 at  all  stages  of  promotion,  and  for  this  purpose,  the 	
roster  that  has  been  referred  to  in 	R.K.  Sabharwal  v.  State  of  Punjab	, 	
(1995) 2 SCC 745 	can be utilized. 	Other counsel	 who argued	, apart from 	
the  learned  Attorney  General	, have	, with  certain  nuances	, reiterated  the 	
same argument	s. Ms. Indira Jaising, learned senior advocate	, appearing 	
on  behalf  of  one  of  the  Petitioners	 in C.A.  No. 	11816  of 2016	, submitted 	
that 	Nagaraj 	(supra) needs to be revisited also on the ground that Article 	
16(4	-A)  and  16(4	-B)  do 	not  flow  from Article  16(4),  but  instead  flow  from 	
Articles  14  and  16(1)  of  the  Constitution.  She  further  argued  that  claims 
of  the  Scheduled  Castes  and 	the 	Scheduled  Tribes  are  based  on  a 	
reading  of  Articles  14,  15,  16,  16(4	-A),  16(4	-B),  and  335  of  the 	
Co	nstitution.  It  was  further  submitted  that  a  further  sub	-classification 	
within  Scheduled  Castes  and  Scheduled  Tribes  is  impermissible,  as  has 
been held in 	Indira Sawhney (1) 	(supra) and in 	E.V. Chinnaiah v. State 	
of  A.P.	, (2005) 1 SCC 394 	(Chinnaiah	). She	 argued that the decision 	
in 	Nagaraj 	(supra)  would  have  the  effec	t  of  amending  the  Presidential 	
O	rder  relating  to  Scheduled  Castes  and  Scheduled  Tribes	, which  would 	
violate  Articles  341  and  342  of  the  Constitution  of  India	, as  Parliament 	
alone  can  amend 	a Presidential  Order.  She  concluded  her	 argument	 by
12	 	
 	
saying  that  the  exercise  of  reading  down 	a constitutional  amendment  to 	
make  it  valid	, 	conducted  in 	Nagaraj	 	(supra)	, 	was  constitutionally 	
impermissible. Shri P.S. Patwalia, learned senior advocate, appearing	 on 	
behalf  of  the  State  of  Tripura	, reiterated  some  of  the  submissions  and 	
added  that 	Nagaraj	 	(supra)  and	 	Chinn	aiah 	(supra)  cannot  stand 	
together	, which  is  why 	Nagaraj 	(supra)  is 	per  incuriam	 as  it  does  not 	
refer to the judgment in 	Chinn	aiah	 (supra) at all	. 	
 
4.	 	On  the  other  hand,  Shri  Shanti  Bhushan  has  defended	 Nagaraj	 	
(supra)	 	by  stating  that  when 	Nagaraj	 	(supra)	 	speaks  about 	
backward	ness	 of the class	, what is referred to is not Scheduled Castes 	
and Scheduled Tribes at all	, but the class of posts	. H	ence,	 it is clear that 	
backwardness 	in  relation  to 	the  class  of  posts  spoken  of  would  require 	
quantifiable data	, and it is in that context that the aforesaid observation is 	
made.  He  also  argued	, 	relying  upon 	Keshav  Mills  Co.  Ltd.  v. 	
Commissioner  of  Income	-Tax, 	Bombay  North	, 	(1965)  2  S	CR  908, 	
(Keshav  Mills	), 	that  a  Constitution  Bench  judgment  which  has 	stood	 	
the  test  of  time	, ought  not  to  be  revisited	, and  if  the  parameters  of 	
Keshav  Mills	 (supra) 	are  to  be  applied,  it  is  clear  that 	Na	garaj	 (supra) 	
ought  not  to	 be 	revisited	. Shri  Rajeev  Dhavan,  learned  senior  advocate	,
13	 	
 	
has 	argued  before  us  that	 Nagaraj 	(supra) 	has  to  be  understood  as  a 	
judgment  which  has  upheld  the  constitutional  amendments  adding 
Articles  16(4	-A)  and  16(4	-B)  on  the  ground  that  they  do  not  viola	te  the 	
basic  structure  of  the  Constitution.  According  to  him,  since 	equality  is 	
part of the basic structure	, and	 Nagaraj 	(supra) 	has applied the 50% cut	-	
off  criteri	on	,  creamy  layer,  and  no  indefinite  extension  of  reservation	, as 	
facets  of  the  equality  prin	ciple  to  uphold  the  said  constitutional 	
amendments	, Nagaraj 	(supra) 	ought not to be revisited. 	According to 	the 	
learned 	senior 	counsel, 	creamy  layer	 is  a  matter  of  applying  the 	
equality  principle	, as  unequals  within  the  same  class  are  sought  to  be 	
weeded	 out as they cannot be treated as equal to the others.	 The whole 	
basis for application of the creamy layer principle is that those genuinely 
deserving  of  reservation  would  otherwise  not  get  the  benefit	s 	of 	
reservation  and  conversely	,  those  who  are  undeserv	ing,	 get  the  said 	
benefit	s.  According  to  the  learned  senior  advocate,  the  creamy  layer 	
principle  applies  to  exclude  certain  individuals  from  the  class  and  does 
not  deal  with  group  rights  at  all. 	This  being  the  case,  A	rticles  341  and 	
342  are  not  attracted	. Further, 	Articles  341  and  342  do  not  concern 	
themselves  with  reservation  at  all.  They  concern  themselves  only  with 
identification  of  those  who  can  be  called  Scheduled  Castes  and
14	 	
 	
Scheduled  Tribes.  On  the  other  hand,  the  creamy  layer  principle  is 
applied by 	C	ourts to exclude c	ertain persons from reservation	 made from 	
within  that  class  on  the  touchstone  of  Articles  14  and  16(1)  of  the 
Constitution  of  India.  He  argued  that  even  if  it  be  conceded  th	at  creamy 	
layer  can  fall  within  Articles 	341  and  342	,  yet  the  C	ourts  power  to 	
enforce fundamental rights 	as part of the basic structure 	cannot be taken 	
away.  Indeed, 	Nagaraj 	(supra) 	was  a  case 	pertaining  to	 a  constitutional 	
amendment and, therefore, Article	s 341 and 342 cannot stand in the way 	
of applying the basic st	ructure test 	to a constitutional amendment.	 	
 
5.	 	Shri  Rakesh  Dwivedi,  learned  senior  advocate,  appearing	 in  C.A. 	
No.  5247  of  2016, 	submitted  that  the  crucial  language  contained  in 	
Article  16(4	-A)  is  that  the  word  which  would  show  that  Scheduled 	
Castes  and	 Scheduled  Tribes  have  to  continue  to  be  backward.  If  the 	
expression  the  Scheduled  Castes  and  the  Scheduled  Tribes  in  Article 
16(4	-A)  would  be  read  as  the  Scheduled  Castes  and  the  Scheduled 	
Tribes  employees,  t	his  would  become  even  clearer. 	Therefore,	 	
according  to  the  learned  senior  advocate,  continued  social 
backwardness  of  the  Scheduled  Castes/Scheduled  Tribes  employees 
has necessarily to be assessed. While making promotions to higher level
15	 	
 	
posts,  it  becomes  clear  that  a  Scheduled  Caste/Schedul	ed  Tri	be 	
employee  may  have  cast	 off  his  backwardness  when  he/she  reaches  a 	
fairly  high  stage  in  a 	service	, for  example	, the  post  of  Deputy 	Chief 	
Engineer	, at  which  stage	, it  would  be  open  for  the  State  to  say  that 	
having  regard  to  the  absence  of  any  backwardness	 of  the  Scheduled 	
Caste/Scheduled Tribe employee at this stage, it would be expedient not 
to reserve anything further in 	posts above this stage. 	Shri 	Naphade, Shri 	
Gopal  Sankaranarayanan	 and  other 	counsel  followed  suit  and  broadly 	
supported the arguments o	f Shri Dhavan and Shri Dwivedi.	 	
 
6. 	Since  we  are  asked  to  revisit 	a  unanimous 	Constitution  Bench 	
judgment	, 	it  is  important  to  bear  in  mind  the  admonition  of  the 	
Constitution Bench judgment in 	Keshav Mills	 (supra)	. This Court said: 	 	
[I]n  reviewing  and  revi	sing  its  earlier  decision,  this 	
Court should ask itself whether in the interests of the 
public  good  or  for  any  other  valid  and  compulsive 
reasons,  it  is  necessary  that  the  earlier  decision 
should  be  revised.  When  this  Court  decides 
questions  of  law,  its  de	cisions  are,  under  Article 	
141, binding on all courts within the territory of India, 
and  so,  it  must  be  the  constant  endeavour  and 
concern  of  this  Court  to  introduce  and  maintain  an 
element  of  certainty  and  continuity  in  the 
interpretation  of  law  in  the  co	untry.  Frequent 	
exercise  by  this  Court  of  its  power  to  review  its 
earlier  decisions  on  the  ground  that  the  view 
pressed  before  it  later  appears  to  the  Court  to  be
16	 	
 	
more reasonable, may incidentally tend to make law 
uncertain  and  introduce  confusion  which  mu	st  be 	
consistently  avoided.  That  is  not  to  say  that  if  on  a 
subsequent  occasion,  the  Court  is  satisfied  that  its 
earlier  decision  was  clearly  erroneous,  it  should 
hesitate  to  correct  the  error;  but  before  a  previous 
decision  is  pronounced  to  be  plainly  err	oneous,  the 	
Court  must  be  satisfied  with  a  fair  amount  of 
unanimity  amongst  its  members  that  a  revision  of 
the  said  view  is  fully  justified.  It  is  not  possible  or 
desirable, and in any case it would be inexpedient to 
lay  down  any  principles  which  should  go	vern  the 	
approach of the Court in dealing with the question of 
reviewing  and  revising  its  earlier  decisions.  It  would 
always  depend  upon  several  relevant 
considerations: 		 What is the nature of the infirmity 	
or error on which a plea for a review and revisi	on of 	
the  earlier  view  is  based  On  the  earlier  occasion, 
did  some  patent  aspects  of  the  question  remain 
unnoticed,  or  was  the  attention  of  the  Court  not 
drawn  to  any  relevant  and  material  statutory 
provision, or was any previous decision of this Court 
bea	ring  on  the  point  not  noticed  Is  the  Court 	
hearing  such  plea  fairly  unanimous  that  there  is 
such an error in the earlier view What would be the 
impact  of  the  error  on  the  general  administration  of 
law or on public good Has the earlier decision been 
foll	owed  on  subsequent  occasions  either  by  this 	
Court  or  by  the  High  Courts  And,  would  the 
reversal  of  the  earlier  decision  lead  to  public 
inconvenience,  hardship  or  mischief  These  and 
other  relevant  considerations  must  be  carefully 
borne  in  mind  whenever  th	is  Court  is  called  upon  to 	
exercise  its  jurisdiction  to  review  and  revise  its 
earlier  decisions.  These  considerations  become  still 
more  significant  when  the  earlier  decision  happens 
to  be  a  unanimous  decision  of  a  Bench  of  five 
learned Judges of this Court	. 	
(at pp. 921	-922)
17	 	
 
 	
7. 	We  may  begin  with  the 	nine	-Judge  Bench  in 	Indra  Sawhney	 (1)	 	
(supra).	 In  this  case,  the  lead  judgment  is  of  B.P.  Jeevan  Reddy	,  J.	, 	
speaking  on  behalf  of  himself  and  three  other  learned  Judges	,  with 	
Pandian  and  Sawant	,  JJ.,  broadly 	co	ncurr	ing  in  the  result  by  their 	
separate judgments.	 Thommen, 	Kuldip Singh,	 and	 Sahai	, JJ.,	 dissented. 	
The  bone  of  contention  in  this  landmark  judgment  was  the  Mandal 
Commission  Report  of  1980,  which  was  laid  before  Parliament  on  two 
occasions 	 once  in  198	2, and  again  in  1983.    However,  no  action  was 	
taken  on  the  basis  of  this  Report  until  13.	08.1990	,  when  an  Office 	
Memorandum  stated  that  after  considering  the  said  Report,  27%  of  the 
vacancies in civil posts and services under the Government of India shall 
be  reserved  for  the 	Socially  and  Economically  B	ackward 	C	lasses.	 This 	
was  followed  by  an  Office  Memorandum  of  25.	09.1991, 	by	 which	, within 	
the  27%  of  vacancies	, preference 	was	 to 	be  given 	to  candidates 	
belonging  to  the  poorer  sections  of 	the 	Socially  and  Ec	onomically 	
Backward 	C	lasses	; and  10%  vacancies 	were	 to  be  reserved  for 	O	ther 	
Economically 	Backward 	Sections  who 	were	 not  covered  by  any  of  the 	
existing  schemes  of  reservation.  The  majority  judgm	ent	s upheld  the 	
reservation  of  27	%  in  favour  of  backward  class	es	, and  the  further  sub	-
18	 	
 	
division  of  more  backward  within 	the  backward  classes  who 	were	 to  be 	
given  preference,  but  struck  down  the  reservation  of  10%  in  favour  of 
O	ther 	Economically 	Backward 	categories	. In arriving at this decision, the 	
judgment 	of  Jeevan 	Reddy,  J.	, referred  to  and  contrasted  Article  16(4) 	
with Article 15(4)	, and stated that when Article 16(4) 	refers to a backward 	
class  of  citizens,  it  refers  primarily  to  socia	l  backwardness	 	(See	 	
para	graph	 774). 	Scheduled  Castes  and  Scheduled  T	ribes	,  not  be	ing  the 	
subject matter before the Court,	 were 	kept aside as follows:	 	
781.	 At  the  outset,  we  may  state  that  for  the 	
purpose  of  this  discussion,  we  keep  aside  the 
Scheduled Tribes and Scheduled Castes (since they 
are  admittedly  included  within  the  backward 
classes),  except  to  remark  that  backward  classes 
contemplated  by  Article  16(4)  do  comprise  some 
castes 		 for  it  cannot  be  denied  that  Scheduled 	
Castes include quite a few castes.	 	
 	
In  dealing  with  the  creamy  layer  concept  insofar  as  it  is  applicable  to 
bac	kward classes, the last sentence of para	graph	 792 also 	states	: 	
792.	  	(This  discussion  is  confined  to  Other 	
Backward Classes only and has no relevance in the 
case of Scheduled Tribes and Scheduled Castes).	 	
 	
In  the  summary  of  the  discussion  contained  in 	paragraphs  796	-797,  it  is 	
stated,  the  test  or  requirement  of  social  and  educational  backwardness
19	 	
 	
cannot  be  applied  to 	Scheduled  Castes  and  S	cheduled 	Tribes, 	who 	
indubitably	 fall  within  the  expression  backward  class  of  citizens.	 	
Jeevan  Reddy,  J.	 then  we	nt  on  to  state  that 	in  certain  posts,  of 	
special	ities  and  super	-special	ities,  provision	s for  rese	rvation  would  not 	
be advisable	 (See	 para	graph	 838	). Ultimately, the judgment decided that 	
reservation  would  apply  at  the  stage  of  initial  entry  only  and  would 	not 	
apply at the stage of promotion. 	 	
 
8. 	It  is  important  to  note  that  eight  of  the  nine  learned  Judges  in 	
Indra  Sawhney	 (1)	 (supra)	 applied  the  creamy  layer  principle  as  a facet 	
of  the  larger  equality  principle.  In  fact,  in 	Indra  Sawhney  v.  Union  of 	
India	 and  Ors.	,  (2000)  1  SCC  168 	(Indra  Sawhney 	(2)	),  this  Court 	
neatly  summarized  the  judgments  in 	Indra  Sawhney  (	1) (supra)	,  on  the 	
aspect of creamy layer as follows:	 	
13.	 In	 Indra	 Sawhney	 [1992  Supp  (3)  SCC  217  : 	
1992  SCC  (L&S)  Supp  1  :  (1992)  22  ATC  385] 	on 	
the  question  of  exclusion  of  the  creamy  layer  from 
the  backward  classes,  there  was  agreement  among 
eight  out  of  the  nine  learned  Judges  of  this  Court. 
There  were  five  separate  judgments  in  this  behalf 
which  required  the  creamy  layer  to  be  identified	 	
and excluded.	 	
 
14.	 The judgment of Jeevan Reddy, J. was rendered 	
for  himself  and  on  behalf  of  three  other  learned
20	 	
 	
Judges,  Kania,  C.J.  and  M.N.  Venkatachaliah,  A.M. 
Ahmadi, JJ.  (as they  then  were).  The  said  judgment 
laid  emphasis  on  the  relevance  of  caste 	and  also 	
stated  that  upon  a  member  of  the  backward  class 
reaching  an  advanced  social  level  or  status,  he 
would  no  longer  belong  to  the  backward  class  and 
would  have  to  be  weeded  out.  Similar  views  were 
expressed by Sawant, Thommen, Kuldip Singh, and 
Saha	i, JJ. in their separate judgments.	 	
 
15.	 It  will  be  necessary  to  refer  to  and  summarise 	
briefly the principles laid down in these five separate 
judgments  for  that  would  provide  the  basis  for 
decision on Points 2 to 5.	 	
 
16.	 While considering the concept of 	means	-test or 	
creamy  layer,  which  signifies  imposition  of  an 
income  limit,  for  the  purpose  of  excluding  the 
persons (from the backward class) whose income is 
above  the  said  limit,  in  para  791,  the  Court  has 
noted  that  counsel  for  the  States  of  Bihar,  T	amil 	
Nadu, Kerala and other counsel for the respondents 
strongly opposed any such distinction and submitted 
that  once  a  class  is  identified  as  a  backward  class 
after  applying  the  relevant  criteria  including  the 
economic  one,  it  is  not  permissible  to  apply 	the 	
economic  criterion  once  again  and  sub	-divide  a 	
backward  class  into  two  sub	-categories.  The  Court 	
negatived  the  said  contention  by  holding  that 
exclusion  of  such  (creamy  layer)  socially  advanced 
members  will  make  the  class  a  truly  backward 
class  and  w	ould  more  appropriately  serve  the 	
purpose and object of clause (4).	 	
 
17.	 Jeevan  Reddy,  J.  dealt  with  the  creamy  layer 	
under  Question  3(	d)  (paras  790,  792,  793  of  SCC) 	
and  under  Question  10  (paras  843,  844).  This  is 
what the learned Judge declared: there 	are sections 	
among  the  backward  classes  who  are	 highly
21	 	
 	
advanced,  socially  and  educationally	 and  they 	
constitute  the  forward  section  of  that  community. 
These  advanced  sections  do  not  belong  to  the  true 
backward  class.  They  are  (para  790)  as  forward  as 
any 	other forward class member.	 	
 	
If  some  of  the  members  are  far  too  advanced	 	
socially	 	(which  in  the  context,  necessarily 	
means	 	economically	 	and,  may  also  mean	 	
educationally	) the  connecting  thread  between 	
them  and  the  remaining  class  snaps.  They 
would  be  misf	its  in  the  class.  (SCC  p.  724, 	
para 792).	 	
(emphasis supplied)	 
 	
The learned Judge said: (SCC p. 724, para 792)	 	
 	
After	 excluding	 them alone, would the class be 	
a  compact  class.  In  fact,  such  exclusion 
benefits the	 truly	 backward.	 
(emphasis supplied)	 	
 
A  li	ne  has  to  be  drawn,  said  the  learned  Judge, 	
between the forward in the backward and the rest of 
the  backward  but  it  is  to  be  ensured  that  what  is 
given  with  one  hand  is  not taken  away  by  the  other. 
The  basis  of  exclu	sion  of  the  creamy  layer  must 	
not	 	be	 	m	erely	 	economic, 	unless	 	economic	 	
advancement	 	is	 	so  high  that  it  necessarily 	
means	 social	 advancement,  such  as  where  a 	
member  becomes  owner  of  a  factory  and  is  himself 
able  to  give  employment  to  others.  In  such  a  case, 
his  income  is  a  measure  of  his  social  s	tatus.  In  the 	
case  of  agriculturists,  the  line  is  to  be  drawn  with 
reference to the agricultural landholding. While fixing 
income  as  a  measure,  the  limit  is  not  to  be  such  as 
to  result  in taking  away  with  one  hand  what  is  given 
with  the  other.  The  income  l	imit  must  be  such  as  to
22	 	
 	
mean  and  signify  social  advancement.  There  are 
again  some  offices  in  various  walks  of  life 		 the 	
occupants  of  which  can  b	e  treated  as  socially 	
advanced, 	without	 further	 inquiry	,  such  as  IAS  and 	
IPS  officers  or  others  in  All  India  s	ervices.  In  the 	
case  of  these  persons,  their  social  status  in  society 
ris	es  quite  high  and  the  person  is 	no 	longer	 socially 	
disadvantaged.  Their  children  get  full  opportunity  to 
realise  their  potential.  They  are  in  no  way 
handicapped  in the  race  of  life.  T	heir  income  is  also 	
such  that  they  are  above  want.  It  is  but  logical  that 
children  of  such  persons  are  not  given  the  benefits 
of  reservation.  If  the  categories  or  sections  above	-	
mentioned are not excluded, the truly disadvantaged 
members  of  the  backward  cl	ass  to  which  they 	
belong  will  be  deprived  of  the  benefits  of 
reservation.  The  Central  Government  is,  therefore, 
directed (para 793) to identify and notify the creamy 
layer  within  four  months  and  after  such  notification, 
the  creamy  layer  within  the  back	ward  class  shall 	
cease  to  be  covered  by  the  reservations  under 
Article  16(4).  Jeevan  Reddy,  J.  finally  directed  (see 
Question  10)  that  the  exclusion  of  the  creamy  layer 
must be on the basis of social advancement and not 
on  the  basis  of  economic  interest 	alone.  Income  or 	
the  extent  of  property	-holding  of  a  person  is  to  be 	
taken  as  a  measure  of  social  advancement 		 and 	
on  that  basis 		 the  creamy  layer  within  a  given 	
caste,  community  or  occupational  group  is  to  be 
excluded to arrive at the	 true	 backward cl	ass. There 	
is  to  be  constituted  a  body  which  can  go  into  these 
questions as follows: (SCC p. 757, para 847)	 	
 	
We direct that such a body be constituted both 
at  Central  level  and  at  the  level  of  the  States 
within  four  months  from  today.    There  should 
be  a 	periodic  revision  of  these  lists  to	 exclude	 	
those  who  have  ceased  to  be  backward  or  for 
inclusion of new classes, as the case may be.
23	 	
 	
(emphasis supplied)	 	
 
The  creamy  layer  [see  para  859,  sub	-para  (3)(	d)] 	
can be, and must be excluded. Creamy layer has to 
be  excluded  and  economic  criterion  is  to  be 
adopted  as  an  indicium  or  measure  of  social 
advancement  [para  860,  sub	-para  (5)].  The  socially 	
advanced  persons  must  be  exclu	ded	 [para  861(	b)]. 	
That  is  how  Jeevan  Reddy,  J.  summarised  the 
position.	 	
 
18.	 Sawant, 	J. too accepted (p. 553 of SCC) that at 	
least  some  individuals  and  families  in  the  backward 
classes, 		 	however  small  in  number, 		 	gain 	
sufficient  means  to  develop 	capacities	 to	 compete	 	
with	 ot	hers  in  every  field.  That  is  an 	undeniable 	
fact	. (emphasis  sup	plied)  Social  advancement  is  to 	
be judged by the capacity to compete with forward 
castes,  achieved  by  the  members  or  sections  of  the 
backward  classes. Legally,  therefore,  these  persons 
or  sections  who  reached  that  level  are  not  entitled 
any  longer  to  be 	called  as  part  of  the  backward 	
class,  whatever  their  original  birthmark.  Taking  out 
these forwards from the backwards is obligatory 
as  these  persons  have  crossed  the  Rubicon  (pp. 
553	-54). On the crucial question as to what is meant 	
by  capacity  to  co	mpete,  the  learned  Judge 	
explained  (para  522)  that  if  a  person  moves  from 
Class IV service to Class III, that is no indication that 
he has reached such a stage of social advancement 
but  if  the  person  has  successfully  competed  for 
higher  level  posts  or 	at least	 near  those  levels, 	
he has reached such a state.	 	
 
19.	 	Thommen,  J.  (paras  287,  295,  296,  323) 	
observed that if some members in a backw	ard class 	
acquire  the  necessary 	financial	 strength  to  raise 	
themselves,  the  Constitution  does  not  extend  to
24	 	
 	
them t	he protection of reservation. The creamy layer 	
has  to  be  weeded  out  and  excluded,  if  it  has 
attained a certain predetermined economic level.	 	
 
20.	 Kuldip  Singh	,  J.  (para  385)  referred  to  the 	
affluent	 	section  of  the  backward  class. 	
Comparatively  such	 	(sic	 rich)  persons  in  the 	
backward  class 		 	though  they  may  not  have 	
acquired  a  higher  level  of  education 		 are  able  to 	
move  in  the  society  without  being  discriminated 
socially.  These  persons  practise  discrimination 
against  others  in  that  group  who  are  com	paratively 	
less  rich.  It  must  be  ensured  that  these  persons  do 
not  chew  up  the  benefits  meant  for  the  true 
backward  class.  Economic  ceiling  is  to  be  fixed  to 
cut  off  these  persons  from  the  benefits  of 
reservation.  In  the  result,  the  means	-test  is 	
imp	erative  to  skim  off  the  	affluent	  sections  of 	
backward classes.	 	
 
21.	 	Sahai,  J.  (para  629)  observed  that  the 	
individuals  among  the  collectivity  or  the  group  who 
may  have  achieved  a	 social	 status	 or	 economic	 	
affluence	, 	are  disentitled  to  claim  reservati	on. 	
Candidates who apply for selection must be made to 
disclose  the  annual  income  of  their  parents  which  if 
it  is  beyond  a  level,  they  cannot  be  allowed  to  claim 
to  be  part  of  the  backward  class.  What  is  to  be  the 
limit  must  be  decided  by  the  State.  Income	 apart, 	
provision  is  to  be  made  that  wards  of  those 
backward  classes  of  persons  who  have  achieved  a 
particular 	status	 	in	 	society,	 	be	 	it 	political	 	or	 	
economic	 or	 if  their  parents  are  in	 higher	 services	 	
then  such  individuals  must  be  precluded  from 
availing  t	he  benefits  of  reservation.  Exclusion  of 	
creamy  layer  achieves  a  social  purpose.  Any 
legislative  or  executive  action  to  remove  such
25	 	
 	
persons  individually  or  collectively  cannot  be 
constitutionally invalid.	 	
 	
In  paragrap	h  27  of  the  said  judgment,  the  three	-Judge  Bench  of  this 	
Court  clearly  held  that  the  creamy  layer  principle  sounds  in  Ar	ticles  14 	
and 16(1) as follows:	 	
 	
(i) E	quals and unequals, twin aspects	 	
 
27.	 As the creamy layer in the backward class is to 	
be treated on a par with the forward classe	s and is 	
not  entitled  to  benefits  of  reservation,  it  is  obvious 
that  if  the  creamy  layer  is  not  excluded,  there  will 
be  discrimination  and  violation  of  Articles  14  and 
16(1)  inasmuch  as	 equals	 (forwards  and  creamy 	
layer  of  backward  classes)	 cannot  be  tre	ated 	
unequally	.  Again,  non	-exclusion  of  creamy  layer  will 	
also  be  violative  of  Articles  14,  16(1)  and  16(4)  of 
the  Constitution  of India since	 unequals	 (the creamy 	
layer)	 cannot  be  treated  as  equals	,  that  is  to  say, 	
equal  to  the  rest  of  the  backward  class.	 These  twin 	
aspects  of  discrimination  are  specifically  elucidated 
in  the  judgment  of  Sawant,  J.  where  the  learned 
Judge stated as follows: (SCC p. 553, para 520)	 	
 	
[T]o  continue  to  confer  upon  such  advanced 
sections    special  benefits,  would  amount  to 
trea	ting	 equals  unequally	.  Secondly,  to  rank 	
them  with  the  rest  of  the  backward  classes	 	
would    amount  to  treating  the 	unequ	als 	
equally.	 	
(emphasis supplied)
26	 	
 	
Thus,  any  executive  or  legislative  action  refusing  to 
exclude  the  creamy  layer  from  the  benefits  of 
reservation  will  be  violative  of  Articles  14  and  16(1) 
and  also  of  Article  16(4).  We  shall  examine  the 
validity  of  Sections  3,  4  and  6  in  the  light  of  the 
above principle. 	 	
 
9. 	The  next  judgment  with  which  we  are  directly  concerned  is  the 	
judgment  in 	Chi	nnaiah	 (supra).  In  this  case,  the  validity  of  the 	Andhra 	
Pradesh  Scheduled  Castes  (Rationalisation  of  Reservations)  Act,  2000, 
was  challenged	, and 	dismissed	 by  a  five	-Judge  Bench	 of  the  Andhra 	
Pradesh  High  Court  by  a  majority  of  4:1	. The  15%  reservation  th	at  was 	
made in favour of the 	Scheduled Castes	 was further apportioned among 	
four	 groups in varying percentages 	 Group A to the extent of 1%; Group 	
B  to  the  extent  of  7%;  Group  C  to  the  extent  of  6%	; and  Group  D  to  the 	
extent  of  1%.  In  the  lead  judgment  on	 behalf  of  the  Constitution  Bench, 	
Hegde,	 J. set out three question	s for consideration as follows:	 	
12.	 From  the  pleadings  on  record  and  arguments 	
addressed  before  us  three  questions  arise  for  our 
consideration:	 	
(1)  Whether  the  impugned  Act  is  violative 	
of	 	Article  341(2)  of  the  Constitution  of 	
India	 	
(2)  Whether  the  impugned  enactment  is 	
constitutionally  invalid  for  lack  of  legislative 
competence
27	 	
 	
(3)  Whether  the  impugned  enactment 	
creates  subclassification  or  micro	-	
classification of Scheduled Castes so as 	to 	
violate  Article  14  of  the  Constitution  of 
India	 	
 	
Article  341  was  then  referred  to	, in  which  the  Presidential  List  of 	
Scheduled  Castes	 is  to  be  notified.	 Any  inclusion  or  exclusion	 from  the 	
said  list 	thereafter 	can  only  be  done	 by  Pa	rliament  under  Arti	cle  341(2) 	
(See	 	para	graph	 	13).  The  Court  then  rejected  the  splitting  up  of 	
Scheduled  Castes	 on  the  basis  of  backwardness  into  groups	, and 	
distinguished 	Indra  Sawhney	 (1)	 (supra)	 (See	 para	graph	s  19  to  21). 	It 	
was then held:	 	
26.	 Thus  from  the  scheme  of  the 	Constitution, 	
Article  341  and  above  opinions  of  this  Court  in  the 
case  of 	N.M.  Thomas	 [(1976)  2  SCC  310  :  1976 	
SCC  (L&S)  227]  it  is  clear  that  the  castes  once 
included  in  the  Presidential  List,  form  a  class  by 
themselves.  If  they  are  one  class  under  the 
Co	nstitution,  any  division  of  these  classes  of 	
persons  based  on  any  consideration  would  amount 
to tinkering with the Presidential List.	 	
 
Indra  Sawhney 	(1) 	(supra) 	was  then  referred  t	o  and  distinguished  as 	
follows:	 	
38.	 On behalf of the respondents, it was p	ointed out 	
that  in 	Indra  Sawhney  case 	[1992  Supp  (3)  SCC 	
217]  the  Court  had  permitted  subclassification  of
28	 	
 	
Other  Backward  Communities,  as  backward  and 
more  backward  based  on  their  comparative 
underdevelopment,  therefore,  the  similar 
classification  amongst 	the  class  enumerated  in  the 	
Presidential  List  of  Scheduled  Castes  is  permissible 
in  law.  We  do  not  think  the  principles  laid  down  in 
Indra  Sawhney  case 	(supra)  for  subclassification  of 	
Other  Backward  Classes  can  be  applied  as  a 
precedent  law  for  subclassif	ication  or  subgrouping 	
Scheduled  Castes  in  the  Presidential  List  because 
that  very  judgment  itself  has  specifically  held  that 
subdivision  of  Other  Backward  Classes  is  not 
applicable  to  Scheduled  Castes  and  Scheduled 
Tribes.  This  we  think  is  for  the  obvious	 reason  i.e. 	
the  Constitution  itself  has  kept  the  Scheduled 
Castes  and  Scheduled  Tribes  List  out  of 
interference by the State Governments.	 	
 	
39.	 Legal  constitutional  policy  adumbrated  in  a 	
statute  must  answer  the  test  of  Article  14  of  the 
Constitution.  Clas	sification  whether  permissible  or 	
not  must  be  judged  on  the  touchstone  of  the  object 
sought to be achieved. If the object of reservation is 
to  take  affirmative  action  in  favour  of  a  class  which 
is  socially,  educationally  and  economically 
backward, the Stat	es jurisdiction while exercising its 	
executive  or  legislative  function  is  to  decide  as  to 
what  extent  reservation  should  be  made  for  them 
either  in  public  service  or  for  obtaining  admission  in 
educational  institutions.  In  our  opinion,  such  a  class 
cannot 	be subdivided so as to give more preference 	
to  a  minuscule  proportion  of  the  Scheduled  Castes 
in preference to other members of the same class.	 	
 	
40.	 	Furthermore,  the  emphasis  on  efficient 	
administration  placed  by  Article  335  of  the 
Constitution  must  also  b	e  considered  when  the 	
claims  of  Scheduled  Castes  and  Scheduled  Tribes
29	 	
 	
to employment in the services of the Union are to be 
considered.	 	
 	
Finally, the Court held:	 	
43.	 	The  very  fact  that  the  members  of  the 	
Scheduled  Castes  are  most  backward  amongst  the 
back	ward  classes  and  the  impugned  legislation 	
having already proceeded on the basis that they are 
not  adequately  represented  both  in  terms  of  clause 
(4)  of  Article  15  and  clause  (4)  of  Article  16  of  the 
Constitution, a further classification by way of micro	-	
cl	assification  is  not  permissible.  Such  classification 	
of the members of different classes of people based 
on  their  respective  castes  would  also  be  violative  of 
the doctrine of reasonableness. Article 341 provides 
that  exclusion  even  of  a  part  or  a  group  of 	castes 	
from  the  Presidential  List  can  be  done  only  by 
Parliament.  The  logical  corollary  thereof  would  be 
that  the  State  Legislatures  are  forbidden  from  doing 
that.  A  uniform  yardstick  must  be  adopted  for  giving 
benefits  to  the  members  of  the  Scheduled  Cast	es 	
for  the  purpose  of  the  Constitution.  The  impugned 
legislation  being contrary  to  the  above  constitutional 
scheme cannot, therefore, be sustained.	 	
 	
44.	 For  the  reasons  stated  above,  we  are  of  the 	
considered  opinion  that  the  impugned  legislation 
apart  from	 being  beyond  the  legislative  competence 	
of  the  State  is  also  violative  of  Article  14  of  the 
Constitution  and  hence  is  liable  to  be  declared  as 
ultra vires the Constitution.	 	
 
In  a  separate  concurring  judgment,  Sinha,	 J.,  after  referring  to 	Indra 	
Sawhney	 (1)	 (supra)  and  the  creamy  layer  concept  in  paragraph  95	, 	
went on to state:
30	 	
 	
96.	 But  we  must  state  that  whenever  such  a 	
situation arises in respect of Scheduled Caste, it will 
be  Parliament  alone  to  take  the  necessary 
legislative  steps  in terms of clause  (2	)  of  Article  341 	
of  the  Constitution.  The  States  concededly  do  not 
have the legislative competence therefor.	 	
It was then concluded:	 	
111.	 The  Constitution  provides  for  declaration  of 	
certain  castes  and  tribes  as  Scheduled  Castes  and 
Scheduled Tribes in te	rms of Articles 341 and 342 of 	
the  Constitution.  The  object  of the said  provisions is 
to  provide  for  grant  of  protection  to  the  backward 
class  of  citizens  who  are  specified  in  the  Scheduled 
Castes  Order  and  Scheduled  Tribes  Order  having 
regard  to  the  econo	mic  and  educational 	
backwardness wherefrom they suffer. The President 
of  India  alone  in  terms  of  Article  341(1)  of  the 
Constitution  is  authorised  to  issue  an  appropriate 
notification  therefor.  The  Constitution  (Scheduled 
Castes) Order, 1950 made in terms o	f Article 341(1) 	
is exhaustive.	 	
 	
Thus,  the  Court  struck  down  the 	Andhra  Pradesh  Scheduled  Castes 	
(Rationalisation of Reservations) Act, 2000	. 	
  
10.	 	The judgment in 	Chinnaiah 	(supra) has been referred by a three	-	
Judge  Bench  to  a  larger  Bench  by  an  order  da	ted  20.08.2014.  This  is 	
because	,  according  to  the  three	-Judge  Bench, 	Chinnaiah	 (supra)  is 	
contrary  to	 Article  338  of  the  Constitution  of  India  and 	Indra  Sawhney 	
(1) 	(supra).  Since  the  correctness  of 	Chinnaiah 	(supra)  does  not  arise
31	 	
 	
before  us,  we  need  say  n	o  more  about  this  reference  which  will  be 	
decided on its own merits.	 	
 
11	. 	Close  on  the  heels  of  this  judgment 	is	 the  judgment  in 	Nagaraj	 	
(supra).  In  this  case,  the  addition  of  Articles  16(4	-A)  and  16(4	-B) 	were 	
under  challenge  on  the  ground  that  they  violat	ed  the  basic  structure  of 	
the  Constitution. 	After  referring  to  the  arguments 	of  counsel  for  both 	
sides,  the  C	ourt  held  that  equality  is  the  essence  of  democracy  and 	
accordingly,  part  of  the  basic  structure  of  the  Constitution  (	See	 	
paragraph  33). 	The 	workin	g  test  in  the  matter  of  application  of  this 	
doctrine  was  then  applied,  referring  to  Chandrachud,  J.s  judgment  in 
Indira  Nehru  Gandhi  v.  Raj  Narain  &  Anr.	,  1975	 Supp  SCC  1 	(See	  	
paragraphs  37  and  38	). After  dealing with  reservation  and  its  extent, the 	
Cour	t then went into the nitty	-gritty of the constitutional amendments and 	
held as follows:	 	
Whether  the  impugned  constitutional 
amendments  violate  the  principle  of  basic 
structure	 	
 
101.	 The  key  question  which  arises  in  the  matter  of 	
the  challenge  to  the  cons	titutional  validity  of  the 	
impugned  amending  Acts  is	 		 	whether  the 	
constitutional  limitations  on  the  amending  power  of 
Parliament  are  obliterated  by  the  impugned
32	 	
 	
amendments  so  as  to  violate  the  basic  structure  of 
the Constitution.	 	
 
102.	 In  the  matter  of  ap	plication  of  the  principle  of 	
basic  structure,  twin  tests  have  to  be  satisfied, 
namely,  the  width  test  and  the  test  of  identity.  As 
stated  hereinabove,  the  concept  of  the  catch	-up 	
rule  and  consequential  seniority  are  not 
constitutional  requirements	.  They  are  not  implicit  in 	
clauses  (1)  and  (4)  of  Article  16.  They  are  not 
constitutional  limitations.  They  are  concepts  derived 
from  service  jurisprudence.  They  are  not 
constitutional  principles.  They  are  not  axioms  like, 
secularism,  federalism,  etc.  Obli	teration  of  these 	
concepts  or  insertion  of  these  concepts  does  not 
change  the  equality  code  indicated  by  Articles  14, 
15  and  16  of  the  Constitution.  Clause  (1)  of  Article 
16  cannot  prevent  the  State  from  taking  cognizance 
of  the  compelling  interests  of  Bac	kward  Classes  in 	
the  society.  Clauses  (1)  and  (4)  of  Article  16  are 
restatements  of  the  principle  of  equality  under 
Article  14.  Clause  (4)  of  Article  16  refers  to 
affirmative  action  by  way  of  reservation.  Clause  (4) 
of  Article  16,  however,  states  that  the 	appropriate 	
Government  is  free  to  provide  for  reservation  in 
cases  where  it  is  satisfied  on  the  basis  of 
quantifiable  data  that  Backward  Class  is 
inadequately represented in the services. Therefore, 
in every case where the State decides to provide for 
rese	rvation  there  must  exist  two  circumstances, 	
namely,  backwardness  and  inadequacy  of 
representation. As stated above, equity, justice and 
efficiency  are  variable  factors.  These  factors  are 
context	-specific.  There  is  no  fixed  yardstick  to 	
identify  and  mea	sure  these  three  factors,  it  will 	
depend  on  the  facts  and  circumstances  of  each 
case.  These  are  the  limitations  on  the  mode  of  the 
exercise  of  power  by  the  State.  None  of  these 
limitations  have  been  removed  by  the  impugned
33	 	
 	
amendments.  If  the  State  concerne	d  fails  to  identify 	
and  measure  backwardness,  inadequacy  and 
overall  administrative  efficiency  then  in  that  event 
the provision for reservation would be invalid. These 
amendments do not alter the structure of Articles 14, 
15 and 16 (equity code). The param	eters mentioned 	
in  Article  16(4)  are  retained.  Clause  (4	-A)  is  derived 	
from  clause  (4)  of  Article  16.  Clause  (4	-A)  is 	
confined  to  SCs  and  STs  alone.  Therefore,  the 
present  case  does  not  change  the  identity  of  the 
Constitution.  The  word  amendment  connotes	 	
change.  The  question  is		whether  the  impugned 	
amendments discard the original Constitution. It was 
vehemently  urged  on  behalf  of  the  petitioners  that 
the  Statement  of  Objects  and  Reasons  indicates 
that  the  impugned  amendments  have  been 
promulgated by Parli	ament to overrule the decisions 	
of  this  Court.  We  do  not  find  any  merit  in  this 
argument.  Under  Article  141  of  the  Constitution  the 
pronouncement  of  this  Court  is  the  law  of  the  land.	 	
The  judgments  of  this  Court  in 	Virpal	 Singh	 [(1995) 	
6  SCC  684  :  1996  S	CC	 (L&S)  1  :  (1995)  31  ATC 	
813]	, Ajit	 Singh	 (I)	 [(1996)  2  SCC  715  :  1996  SCC 	
(L&S)  540  :  (1996)	 33  ATC  239  :  AIR  1996  SC 	
1189]	, Ajit	 Singh	 (II)	 [(1999) 7 SCC 209 : 1999 SCC 	
(L&S)  1239] 	and	 Indra	 Sawhney	 [1992  Supp  (3) 	
SCC 217 : 1992 SCC (L&S) Supp 1 : (1992)	 22 ATC 	
385]  were  judgments  delivered  by  this  Court  which 
enunciated the law of the land. It is that law which is 
sought  to  be  changed  by  the  impugned 
constitutional  amendments.  The  impugned 
constitutional  amendments  are  enabling  in  nature. 
They leave it t	o the States to provide for reservation. 	
It is well settled that Parliament while enacting a law 
does  not  provide  content  to  the  right.  The  content 
is  provided  by  the  judgments  of  the  Supreme  Court. 
If  the  appropriate  Government  enacts  a  law 
providing fo	r reservation without keeping in mind the 	
parameters  in  Article  16(4)  and  Article  335  then  this
34	 	
 	
Court  will  certainly  set  aside  and  strike  down  such 
legislation.  Applying  the  width  test,  we  do  not  find 
obliteration  of  any  of  the  constitutional  limitations	. 	
Applying  the  test  of  identity,  we  do  not  find  any 
alteration  in  the  existing  structure  of  the  equality 
code.  As  stated  above,  none  of  the  axioms  like 
secularism,  federalism,  etc.  which  are  overarching 
principles  have  been  violated  by  the  impugned 
const	itutional  amendments.  Equality  has  two  facets	 	
	 	formal  equality  and  proportional  equality. 	
Proportional  equality  is  equality  in  fact  whereas 
formal  equality  is  equality  in  law.  Formal  equality 
exists  in  the  rule  of  law.  In  the  case  of  proportional 
equality  the  State  is  expected  to  take  affirmative 
steps  in  favour  of  disadvantaged  sections  of  the 
society  within  the  framework  of  liberal  democracy. 
Egalitarian equality is proportional equality.	 	
 
xxx xxx xxx	 	
 
104.	 Applying  the  above  tests  to  the  prese	nt  case, 	
there  is  no  violation  of  the  basic  structure  by  any  of 
the  impugned  amendments,  including  the 
Constitution  (Eighty	-second)  Amendment  Act,  2000. 	
The  constitutional  limitation  under  Article  335  is 
relaxed  and  not  obliterated.  As  stated  above,  be  it 
reservation  or  evaluation,  excessiveness  in  either 
would  result  in  violation  of  the  constitutional 
mandate.  This  exercise,  however,  will  depend  on 
the  facts  of  each  case.  In  our  view,  the  field  of 
exercise  of  the  amending  power  is  retained  by  the 
impugned 	amendments,  as  the  impugned 	
amendments  have  introduced  merely  enabling 
provisions  because,  as  stated  above,  merit, 
efficiency, backwardness and inadequacy cannot be 
identified  and  measured  in  vacuum.  Moreover, 
Article  16(4	-A)  and  Article  16(4	-B)  fall  in  th	e  pattern 	
of  Article  16(4)  and  as  long  as  the  parameters
35	 	
 	
mentioned in those articles are complied with by the 
States,  the  provision  of  reservation  cannot  be 
faulted.  Articles  16(4	-A)  and  16(4	-B)  are 	
classifications  within  the  principle  of  equality  under 
Ar	ticle 16(4).	 	
 
The Court then concluded as follows:	 	
121.	 The  impugned  constitutional  amendments  by 	
which  Articles  16(4	-A)  and  16(4	-B)  have  been 	
inserted  flow  from  Article  16(4).  They  do  not  alter 
the  structure  of  Article  16(4).  They  retain  the 
controlling	 	factors  or  the  compelling  reasons, 	
namely,  backwardness  and  inadequacy  of 
representation  which  enables  the  States  to  provide 
for reservation keeping in mind the overall efficiency 
of  the  State  administration  under  Article  335.  These 
impugned  amendments  ar	e  confined  only  to  SCs 	
and  STs.  They  do  not  obliterate  any  of  the 
constitutional  requirements,  namely,  ceiling  limit  of 
50%  (quantitative  limitation),  the  concept  of  creamy 
layer  (qualitative  exclusion),  the  sub	-classification 	
between  OBCs  on  one  hand  and 	SCs  and  STs  on 	
the  other  hand  as  held  in 	Indra  Sawhney	 [1992 	
Supp  (3)  SCC  217  :  1992  SCC  (L&S)  Supp  1  : 
(1992)  22  ATC  385],  the  concept  of  post	-based 	
roster  with  inbuilt  concept  of  replacement  as  held  in 
R.K.  Sabharwal	 [(1995)  2  SCC  745  :  1995  SCC 	
(L&S) 54	8 : (1995) 29 ATC 481].	 	
 
122.	 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  w	ithout  which  the 	
structure  of  equality  of  opportunity  in  Article  16 
would collapse.
36	 	
 	
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  exi	stence  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  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 
ce	iling  limit  of  50%  or  obliterate  the  creamy  layer  or 	
extend the reservation indefinitely.	 	
 
124.	 Subject  to  the  above,  we  uphold  the 	
constitutional  validity  of  the  Constitution  (Seventy	-	
seventh  Amendment)  Act,  1995;  the  Constitution 
(Eighty	-first Amendment)	 Act, 2000; the Constitution 	
(Eighty	-second  Amendment)  Act,  2000  and  the 	
Constitution (Eighty	-fifth Amendment) Act, 2001.	 	
 
12	. 	We  now  come  to  the  Constitution  Bench  judgment  in 	Ashoka 	
Kumar  Thakur	 v.  Union  of  India	,  (2008)  6  SCC  1.  In  this  case,  Article 	
15(5)  inserted  by 	the 	Constitution  (Ninety	-third  Amendment)  Act,  2005, 	
was  under  challenge.  Balakrishnan,  C.J.,  after  referring  to  various 
judgments of this Court dealing with reservation, specifically held that the
37	 	
 	
creamy  layer  principle  is  inapplicable 	to  Scheduled  Castes  and 	
Scheduled  Tribes	 as  it  is  merely  a  principle  of  identification  of  the 	
backward  class  and  not  applied  as  a  principle  of  equality	 	(See	 	
paragraphs  177  to  186). 	Pasayat,  J.	, speaking  for  himself  and  Thakker, 	
J.	, stated  that  the  focus  in	 the  present  case  was  not  on  Scheduled 	
Castes  and  Scheduled  Tribes  but  on  Other  Backward  Classes  (	See	 	
paragraph  293).  Bhandari,  J.	, in  paragraphs  395  and  633  stated  as 	
follows:	 	
395.	 In 	Sawhney  (	1) [1992  Supp  (3)  SCC  217  : 	
1992  SCC  (L&S)  Supp  1  :  (1992)  22	 ATC  385]  the 	
entire  discussion  was  confined  only  to  Other 
Backward Classes. Similarly, in the instant case, the 
entire  discussion  was  confined  only  to  Other 
Backward  Classes.  Therefore,  I  express  no  opinion 
with  regard  to  the  applicability  of  exclusion  of	 	
creamy  layer  to  the  Scheduled  Castes  and 
Scheduled Tribes.	 	
 
xxx xxx xxx	 	
 
633.	 In	 Indra Sawhney (1) 	[1992 Supp (3) SCC 217 	
:  1992  SCC  (L&S)  Supp  1  :  (1992)  22  ATC  385], 
creamy  layer  exclusion  was  only  in  regard  to  OBC. 
Reddy,  J.  speaking  for  the  majority	 at  SCC  p.  725, 	
para 792, stated that [t]his discussion is confined to 
Other Backward Classes only and has no relevance 
in  the  case  of  Scheduled  Tribes  and  Scheduled 
Castes.  Similarly,  in  the  instant  case,  the  entire 
discussion  was  confined  only  to  Other	 Backward 	
Classes. Therefore, I express no opinion with regard
38	 	
 	
to  the  applicability  of  exclusion  of  creamy  layer  to 
the Scheduled Castes and Scheduled Tribes	  	
 
Raveendran,  J.,  in  a  separate  judgment,  while  referring  to 	Nagaraj 	
(supra), held as follows:	 	
665.	 The  need  for  exclusion  of  creamy  layer  is 	
reiterated  in  the  subsequent  decisions  of  this  Court 
in	 Ashoka  Kumar  Thakur	 v.	 State  of  Bihar	 [(1995)  5 	
SCC  403  :  1995  SCC  (L&S)  1248  :  (1995)  31  ATC 
159], 	Indra  Sawhney	 v. 	Union  of  India 	[(1996)  6 	
SCC  506  : 	1996  SCC  (L&S)  1477]  and 	M.  Nagaraj 	
v. 	Union  of  India 	[(2006)  8  SCC  212].  When	 Indra 	
Sawhney	 [1992  Supp  (3)  SCC  217  :  1992  SCC 	
(L&S)  Supp  1  :  (1992)  22  ATC  385]  has  held  that 
creamy  layer  should  be  excluded  for  purposes  of 
Article  16(4),  dealing  with  back	ward  class  which  is 	
much  wider  than  socially  and  educationally 
backward  class  occurring  in  Articles  15(4)  and  (5), 
it  goes  without  saying  that  without  the  removal  of 
creamy  layer  there  cannot  be  a  socially  and 
educationally  backward  class.  Therefore,  wh	en  a 	
caste  is  identified  as  a  socially  and  educationally 
backward  caste,  it  becomes  a  socially  and 
educationally backward class only when it sheds its 
creamy layer.	 	
 
The  Court  ultimately  upheld  the  Constitution 	(Ninety	-third  Amendment) 	
Act,  2005	,  subjec	t  to  the  creamy  layer  test 	to  be  applied  to 	Other 	
Backward 	C	lasses.  Bhandari,  J.  held  that  the  amendment  was  not 	
constitutionally  valid  so  far  as  private  unaided  educational  institutions 
were concerned	.
39	 	
 	
 
13.	 	At  this  stage,  it  is  necessary  to  deal  with  th	e  argument  that 	
Nagaraj	 (supra)  needs  to  be  revisited  as  it  conflicts  with 	Chinnaiah 	
(supra). It will	 be noticed that though 	Nagaraj	 (supra) 	is a later judgment, 	
it  does  not  refer  to 	Chinnaiah 	(supra)  at  all.  Much  was  made  of  this  by 	
some  of  the  learned  co	un	sel  appearing  on  behalf  of  the  A	ppellants.  It  is 	
important to notice that the majority judgment of Hegde,	 J. does not refer 	
to  the  creamy  layer  principle  at  all. 	Chinnaiahs	 judgment  (supra)  in 	
essence  held  that  the 	Andhra  Pradesh  Scheduled  Castes 	
(Ratio	nalisation  of  Reservations)  Act,  2000, 	which  it  considered	, could 	
not  further  sub	-divide  Scheduled  Castes  into  four  categories	, as  that 	
would  be  violative  of  Article  341(2)  of  the  Constitution  of  India	 for  the 	
simple  reason  that  it  is	 Parliament  alone  that	 can  make  any  change  in 	
the  Presi	dential  List  and  not  the  State  L	egislatures.  That  this  is  the  true 	
ratio	 of the judgment is clear from a reading of the paragraphs that have 	
been  set  out  hereinabove.  This  being  the  case,  as 	Chinnaiah 	(supra) 	
does  not  in  an	y  manner  deal  with  any  of  the  aspects  on  which  the 	
constitutional  amendments  in 	Nagarajs	 case  (supra)  were  upheld,  we 	
are  of  the  view  that  it  was  not  necessary  for 	Nagaraj	 (supra)  to  refer  to 	
Chinnaiah 	(supra)  at  all.  However,  it  was  further  contended  tha	t  apart
40	 	
 	
from this 	ratio	, Chinnaiah 	(supra) also decided that 	the 	sub	-classification 	
of Scheduled Castes	, created by the 	Andhra Pradesh Scheduled Castes 	
(Rationalisation of Reservations) Act, 2000, 	also violated Article 14 of the 	
Constitution  of  India.  This	 was  stated  by 	Chinnaiah 	(supra)  to  be 	
violative  of  Article  14  as  the  same  would  a	mount  to  tinkering  with  the 	
List	, which	, as  was  held	, could  be  done  only 	by  Parliament  and  not  by 	
State  L	egislature	s.  In  our  opinion,  the  true 	ratio	 of  the  judgment  flows 	
fro	m  a  construction  of  Article  341	.  It  is  true  that  the 	Andhra  Pradesh 	Act 	
in  question 	was  also  found  to  be  violative  of  Article  14.  We  may  only 	
state  that 	Chinnaiah 	(supra)  dealt  with  a 	completely  different  problem, 	
apart  from  dealing  with  a  State  statute  an	d  not  a  constitutional 	
amendment	, as was dealt with in 	Nagaraj 	(supra). 	 	
 
14.	 	This  brings  us  to  whether  the  judgment  in 	Nagaraj	 (supra)  need	s 	
to  be  revisited	 on  the  other  grounds  that  have  been  argued  before  us	. 	
Insofar  as  the  State  having  to 	show	 	quantifi	able  data 	as  far  as	 	
backwardness  of  the  class  is  concerned,  we  are  afraid  that  we  must 
reject Shri Shanti Bhushans argument	. The reference to class i	s to the 	
Scheduled  Castes  and 	the 	Scheduled  Tribes	, and  their  inadequacy  of 	
representation  in  public  emp	loyment.  It  is  clear,  therefore,  that 	Nagaraj
41	 	
 	
(supra)  has	, in  unmistakable  terms	, stated  that  the  State  has  to  collect 	
quantifiable  data  showing  backwardness  of 	the 	Scheduled  Castes  and 	
the 	Scheduled  Tribes.  We  are  afraid  that  this  portion  of  the  judgment 	is 	
directly  contrary  to  the 	nine	-Judge  Bench  in 	Indra  Sawhney	 (1)	 (supra)	. 	
Jeevan  Reddy,  J.,  speaking  for  himself  and  three  other  learned  Judges	, 	
had  clearly  held	, [t]he  test  or  requirement  of  social  and  educational 	
backwardness  cannot  be  applied  to  Sched	uled  Castes  and  Scheduled 	
Tribes,  who  indubitably  fall  within  the  expression  backward  class  of 
citizens.	  (	See	 paragraphs  796  to  797).  Equally, 	Dr.  Justice  Thommen, 	
in his conclusion at paragraph 323(4), 	had 	held as follows:	 	
 	
323.	 Summary	 	
xxx xxx xxx 	 	
(4)  Only  such  classes  of  citizens  who  are  socially 	
and  educationally  backward  are  qualified  to  be 
identified  as  backward  classes.  To  be  accepted  as 
backward  classes  for  the  purpose  of  reservation 
under  Article  15  or  Article  16,  their  backwardness 
must  have 	been  either  recognised  by  means  of  a 	
notification  by  the  President  under  Article  341  or 
Article  342  declaring  them  to  be  Scheduled  Castes 
or  Scheduled  Tribes,  or,  on  an  objective 
consideration,  identified  by  the  State  to  be  socially 
and  educationally  so  ba	ckward  by  reason  of 	
identified  prior  discrimination  and  its  continuing  ill 
effects  as  to  be  comparable  to  the  Scheduled 
Castes  or  the  Scheduled  Tribes.  In  the  case  of  the 
Scheduled  Castes  or  the  Scheduled  Tribes,  these
42	 	
 	
conditions are, in view of the notifi	cations, presumed 	
to be satisfied		 	
 	
15. 	In  fact,	 Chinnaiah 	(supra)	 has  referred  to  the  Scheduled  Castes 	
as  being  the  most  backward  among  the  backward  class	es	 	(See	 	
paragraph  43).  This  is  for  the  reason  that  the  Presidential  List  contains 
only  those  castes	 or  groups  or  parts  thereof	, which	 have  been  regarded 	
as untouchables. Similarly, the Presidential List of Schedul	ed Tribes only 	
refers  to  those  t	ribes  in  remote  backward  areas  who  are  socially 	
extremely	 backward. Thus, it is clear that when 	Nagaraj	 (supra	) requires 	
the  States  to  collect  quantifiable  data  on  backwardness	, insofar  as 	
Scheduled  Castes  and  Scheduled  Tribes  are  concerned,  this  would 
clearly  be  contrary  to  the 	Indra  Sawhney	 (1)	 (supra) 	and  would  have  to 	
be declared to be bad on this 	ground	.  	
 
Ho	wever,  when  it  comes  to  the  creamy  layer  principle,  it  is  important  to 	
note  that  this  principle  sounds  in  Articles  14  and  16(1)	, as  unequals 	
within  the  same  class  are  being  treated  equally  with  other  members  of 
that class. 	The genesis of this principle is 	to be found in 	State of Kerala 	
&  Anr.  v.  N.M.  Thomas 	and	 Ors.	, (1976)  2  SCC  310	.  This	 case  was 	
concerned  with  a  test	-relaxation  rule  in  promotions  from  lower  division
43	 	
 	
clerk	s to  upper  division 	clerks.  B	y  a  5:2  majority  judgment	, the  said  rule 	
was  upheld  as 	a  rule  that  could  be  justified  on  the  basis  that  it  became 	
necessary  as  a  means  of  generally  giving  a 	leg	-up	 to	 backward  classes. 	
In paragraph 124	, Krishna Iyer,	 J. opined: 	 	
124.	 A  word  of  sociological  caution.  In  the  light  of 	
experience,  here  and  elsewhe	re,  the  danger  of 	
reservation,  it  seems  to  me,  is  threefold.  Its 
benefits, by and large, are snatched away by the top 
creamy  layer  of  the  backward  caste  or  class,  thus 
keeping  the  weakest  among  the  weak  always  weak 
and  leaving  the  fortunate  layers  to  c	onsume  the 	
whole  cake.  Secondly,  this  claim  is  overplayed 
extravagantly  in  democracy  by  large  and  vocal 
groups  whose  burden  of  backwardness  has  been 
substantially  lightened  by  the  march  of  time  and 
measures  of  better  education  and  more 
opportunities  of  emp	loyment,  but  wish  to  wear  the 	
weaker  section  label  as  a  means  to  score  over 
their  near	-equals  formally  categorised  as  the  upper 	
brackets.  Lastly,  a  lasting  solution  to  the  problem 
comes  only  from  improvement  of  social 
environment,  added  educational  facil	ities  and  cross	-	
fertilisation  of  castes  by  inter	-caste  and  inter	-class 	
marriages  sponsored  as  a  massive  State 
programme,  and  this  solution  is  calculatedly  hidden 
from  view  by  the  higher  backward  groups  with  a 
vested  interest  in  the  plums  of  backwardism. 	But 	
social  science  research,  not  judicial  impressionism, 
will alone tell the whole truth and a constant process 
of  objective  re	-evaluation  of  progress  registered  by 	
the  underdog  categories  is  essential  lest  a  once 
deserving  reservation  should  be  degrad	ed  into 	
reverse  discrimination.  Innovations  in 
administrative  strategy  to  help  the  really  untouched,
44	 	
 	
most	 backward	 classes  also  emerge  from  such 	
socio	-legal  studies  and  audit  exercises,  if 	
dispassionately  made.  In  fact,  research  conducted 
by  the  A.N.  Sin	ha  Institute  of  Social  Studies,  Patna, 	
has  revealed  a  dual  society  among  harijans,  a  tiny 
elite  gobbling  up  the  benefits  and  the  darker  layers 
sleeping  distances  away  from  the  special 
concessions.  For  them,  Articles  46  and  335  remain 
a  noble  romance  [As 	Huxley  called  it  in 	
Administrative  Nihilism  (Methods  and  Results,  Vol. 
4  of  Collected  Essays).],  the  bonanza  going  to  the 
higher  harijans.  I  mention  this  in  the  present  case 
because  lower  division  clerks  are  likely  to  be  drawn 
from  the  lowest  levels  of	 harijan  humanity  and 	
promotion  prospects  being  accelerated  by 
withdrawing,  for  a  time,  test  qualifications  for  this 
category may perhaps delve deeper. An equalitarian 
breakthrough  in  a  hierarchical  structure  has  to  use 
many weapons and Rule 13	-AA perhap	s is one.	 	
 	
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  ba	g 	all  the  coveted  jobs 	in  the  public 	
sector  and  perpetuate  themselves	, leaving  the  rest  of  the  class  as 	
backward as they always were. This being the case, it is clear that when 
a 	C	ourt  applies  the  creamy  layer  principle  to  Scheduled  Castes  and 	
Scheduled  Tr	ibes	, it  does  not  in  any  manner  tinker  with  the  Presidential 	
List  under  Articles  341  or  342  of  the  Constitution  of  India.  The  caste  or
45	 	
 	
group 	or sub	-group named in the said L	ist continues exactly as before. 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. 	Even  the	se 	
persons  who  are  contained  within  the  group  or  sub	-group  in  the 	
Presidential  Lists  continue  t	o  be  withi	n  those  Lists. 	It 	is  only  when  it 	
comes  to  the  application  of 	the 	reservation  principle  under  Articles  14 	
and	 16  that  the  creamy  layer  within  that  sub	-group  is  not  given  the 	
benefit of such reservation. 	 	
 
16. 	We do not think it necessary to go in	to whether Parliament may or 	
may 	not  exclude  the  creamy  layer  from  the  Presidential  Lists  contained 	
under  Articles  341  and  342.  Even  on  the  assumption  that 	Articles  341 	
and  342  empower 	Parliament 	to 	exclude  the  creamy  layer  from  the 	
groups  or  sub	-groups  co	ntained  within  these  Lists,  it	 is  clear  that 	
Constitutional  C	ourts	, applying  Articles  14  and  16  of  the  Constitution  to 	
exclude  the  creamy  layer  cannot  be  said  to  be  thwarted  in  this  exercise 
by  the  fact  that  persons  stated  to  be  within  a  particular  group  o	r  sub	-	
group  in  the  Presidential  List 	may  be	 kept  out 	by  Parliament 	on 	
application  of 	the	 creamy  layer  principle.  One  of  the  most  important
46	 	
 	
principles  that  has  been  frequently  applied  in  constitutional  law  is  the 
doctrine  of  harmonious  interpretation.  When 	Articles  14  and  16  are 	
harmoniously interpreted along with other Articles 341 	and	 342, it is clear 	
that  Parliament  will  have 	complete	 freedom  to  include  or  exclude 	
persons  from  the  Presidential  Lists  based  on  relevant  factors. 	Similarly, 	
Constitutional  C	ou	rts	, when  apply	ing	 the  principle  of  reservation	, will  be 	
well within their jurisdiction to exclude the creamy layer from such groups 
or 	sub	-groups  when  applying  the  principles  of  equality  under  Articles  14 	
and  16  of  the  Constitution  of  India. 	We  do  not  agr	ee  with  Balakrishnan, 	
C.J.s statement in 	Ashoka Kumar Thakur 	(supra) that the creamy layer 	
principle  is  merely  a  principle  of  identification  and  not  a  principle  of 
equality.	 	
 
17. 	Therefore,  when 	Nagaraj	 (supra)  applied 	the 	creamy  layer  test to 	
Scheduled C	astes and Scheduled Tribes in exercise of application of the 	
basic  structure  test  to  uphold  the  constitutional  amendments  leading  to 
Articles  16(4	-A)  and  16(4	-B),  it  did  not  in  any  manner  interfere  with	 	
Parliaments  power  under  Article	 341  or 	Article 	342. 	We  are,  therefore, 	
clearly  of  the  opinion  that  this  part  of  the 	judgment  does  not  need  to  be 	
re	visited	, and  consequently	, there  is  no  need  to  refer 	Nagaraj	 (supra) 	to
47	 	
 	
a 	seven	-Judge  Bench.  We  may  also  add  at  this  juncture  that 	Nagaraj	 	
(supra) 	is  a  unanimous	 judgment  of 	five	 learned  Judges  of  this  Court 	
which  has  held  sway  since  the  year  2006. 	This  judgment  has  been 	
repeatedly followed and applied by a number of judgments of this Court	, 	
namely	: 	
a.	 	Anil  Chandra  v.  Radha 	Krishna  Gaur	, (2009)  9  SCC  454  	
(two	-Judge	 Bench)	 (See	 paragraphs 17 and 18).	 	
 	
b.	 	Suraj  Bhan  Meena  &  Anr.  v.  State  of  Rajasthan  &  Ors.	, 	
(2011)  1  SCC  467  (two	-Judge	 Bench)	 (See	 paragraphs  10,  50, 	
and 67).	 	
 	
c.	 	U.P.  Power  Corporation  v.  Rajesh  Kumar  &  Ors.	,  (2012)  7	 	
SCC 1 (two	-Judge	 Bench)	 (See	 paragraph	s 61	, 81(ix), and 86	). 	
 	
d.	 	S.  Pann	eer  Selvam  &  Ors.  v.  State  of  Tamil  Nadu  &  Ors.	, 	
(2015)  10  SCC  292  (two	-Judge	 Bench)	 (See	 paragraphs  18, 	
19, and 36).	 	
 	
e.	 	Chairman  &  Managing  Director,  Central  Bank  of  India  & 
Ors.  v.  Central  Bank  of  India  SC/ST  Employees  Welfa	re 	
Association  &  Ors.	, 	(2015)  12  SCC  308  (two	-Judge	 Bench)	 	
(See	 paragraphs 9 and 26).	 	
 	
f. 	Suresh  Chand  Gautam  v.  State  of  U.P.  &  Ors.	, 	(2016)  11 	
SCC 113	 (two	-Judge	 Bench)	 (See	 paragraphs 2 and 45).	 	
 	
g.	 	B.K.  Pavitra  &  Ors.  v.  Union  of  India  &  Ors.	, (2017)  4  SCC	 	
620	 (two	-Judge	 Bench)	 (See	 paragraphs 17 to 22).
48	 	
 	
Further, 	Nagaraj	 (supra)  has  been  approved  by  larger  Benches  of  this 	
Court in:	 	
a.	 	General  Categories  Welfare  Federation  v.  Union  of  India	, 	
(2012)  7  SCC  40  (three	-Judge  Bench)  (	See	 paragraphs  2  and 	
3).	 	
 	
b.	 	Rohtas	 Bhankar  v.  Union  of  India	,  (2014)  8  SCC  872  (five	-	
Judge Bench) (	See	 paragraphs 6 and 7).	 	
 	
In  fact,  the  tests  laid  down  in 	Nagaraj	 (supra) 	for  judging  whether  a 	
constitutional  amendment  violates  basic  structure  have  been  expressly 
approved  by  a 	nine	-Judge 	Bench  of  this  C	ourt  in 	I.R.  Coelho  (Dead)  by 	
LRs.  v.  State  of  Tamil  Nadu  and	 	Ors.	, 	(2007)  2  SCC  1  (	See	 	
paragraphs  61,  105,  and  142).  T	he  entirety  of  the  decision	, far  from 	
being  clearly  erroneous	, correctly  applies  the  basic  structure 	doctrine	 to 	
uphold 	co	nstitutional amendments	 on certain conditions which are based	 	
upon the equality principle	 as being part of basic structure	. Thus, we may 	
make it clear that quantifiable data shall be collected by the State, on the 
parameters  as  stipulated  in 	Nagaraj	 (supra	) on  the  inadequacy  of 	
representation	,  which  can  be  tested  by  the  Courts.  We  may  further  add 	
that the data would be relatable to the concerned cadre.
49	 	
 	
18. 	Dr.  Dhavan  referred  to  the  judgment  in 	U.P.  Power  Corporation 	
Ltd. 	(supra)	,  and  placed  before  us  the 	Constitution  (One  Hundred 	
Seventeeth  Amendment)  Bill,  2012.  This  Bill  was  passed  by  the  Rajya 
Sabha  on  17.12.2012  but  failed  to  get  sufficient  number  of  votes  in  the 
Lok Sabha and, therefore, could not become an Act.  This Bill was 	tabled 	
close  upon  the  ju	dgment  in 	U.P.  Power  Corporation	 Ltd.	 (supra)	, and 	
would have substituted Article 16(4	-A) as follows:	 	
(4A) Notwithstanding anything contained elsewhere 
in  the  Constitution,  the  Scheduled  Castes  and  the 
Scheduled  Tribes  notified  under  article  341  and 
artic	le  342,  respectively,  shall  be  deemed  to  be 	
backward an	d nothing in this article 	shall prevent the 	
State  from  making  any  provision  for  reservation  in 
matters  of  promotions,  with  consequential  seniority, 
to  any  class  or  classes  of  posts  in  the  services 
unde	r  the  State  in  favour  of  the  Scheduled  Castes 	
and  the  Scheduled  Tribes  to  the  extent  of  the 
percentage of reservation provided to the Scheduled 
Castes  and  the  Scheduled  Tribes	 in  the  services  of 	
the State.	 	
 	
The Statement of Objects and Reasons for the sai	d Bill read as follows:	 	
 	
The  validity  of  the  constitutional  amendments  was 
challenged  before  the  Supreme  Court.  The 
Supreme  Court  while  deliberating  on  the  issue  of 
validity  of  Constitutional  amendments  in  the  case  of 
M.  Nagaraj 	v.  UOI  &  Ors.,  observed  th	at  the 	
concerned  State  will  have  to  show  in  each  case  the 
existence  of  the  compelling  reasons,  namely, 
backwardness,  inadequacy  of  representation  and
50	 	
 	
overall  administrative  efficiency  before  making 
provision for reservation in promotion.	 	
Relying on the jud	gment of the Supreme Court in M. 	
Nagaraj  case,  the  High  Court  of  Rajasthan  and  the 
High  Court  of  Allahabad  have  struck  down  the 
provisions  for  reservation  in  promotion  in  the 
services  of  the  State  of  Rajasthan  and  the  State  of 
Uttar  Pradesh,  respectively. 	Subsequently,  the 	
Supreme  Court  has  upheld  the  decisions  of  these 
High  Courts  striking  down  provisions  for  reservation 
in respective States. 	 	
It  has  been  observed  that  there  is  difficulty  in 
collection  of  quantifiable  data  showing 
backwardness  of  the  class	 	and  inadequacy  of 	
representation  of  that  class  in  public  employment. 
Moreover,  there  is  uncertainty  on  the  methodology 
of this exercise.	 	
 	
It  will  be  seen  that  this  Bill  contains 	two 	things  that  are  different  from 	
Article 16(4	-A) as already enacted. First	 and foremost, it clarifies that the 	
Scheduled  Castes  and  the  Scheduled  Tribes  that  are  notified  under 
Articles  341  and  342  shall  be  deemed  to  be  backward,  which  makes  it 
clear  that  no  quantifiable  data  is  necessary  to  determine  backwardness. 
Secondly,  ins	tead  of  leaving  it  to  the  States  to  determine  on  a  case  to 	
case basis whether the Scheduled Castes and the Scheduled Tribes are 
adequately  represented  in  any  class  or  classes  of  posts  in  the  services 
under  the  State,  the  substituted  provision  does  not  leav	e  this  to  the 	
discretion  of  the  State	, but 	specifies	 that  it  shall  be  to  the  extent  of  the
51	 	
 	
percentage  of  reservation  provided 	to  Scheduled  C	astes  and  Scheduled 	
Tribes  in  the  services  of  the  State.  This  amendment  was  necessitated 
because a Division Bench of	 this Court in 	U.P. Power Corporation	 Ltd.	 	
(supra)  had  struck  down  Section  3	(7) of 	the  Uttar  Pradesh  Public 	
Services  (Reservation  for  Scheduled  Castes,  Scheduled  Tribes  and 
Other Backward Classes) Act, 1994	 and Rule 8A of 	the	 U.P. Government 	
Servants Senio	rity Rules, 1991	, which read as under:	 	
3.	 Reservation  in  favour  of  Scheduled  Castes, 	
Scheduled  Tribes  and  Other  Backward 
Classes	.	 	
(1)	-(6) 	 	xxx xxx xxx	 	
(7)  If,  on  the  date  of  commencement  of 
this  Act,  reservation  was  in  force  under 
government  orders  for  a	ppointment  to 	
posts  to  be  filled  by  promotion,  such 
government  orders  shall  continue  to  be 
applicable  till  they  are  modified  or 
revoked.	 	
 	 	 	
 	 	xxx xxx xxx	 	
 
8-A.	 Entitlement  of  consequential  seniority  to  a 	
person  belonging  to  Scheduled  Castes  or 
Scheduled 	Tribes	.	Notwithstanding  anything 	
contained  in  Rules  6,  7  or  8  of  these  Rules,  a 
person  belonging  to  the  Scheduled  Castes  or 
Scheduled Tribes shall, on his promotion by virtue of 
rule  of  reservation/roster,  be  entitled  to 
consequential seniority also.
52	 	
 	
Th	is  Court  considered 	Nagaraj	 (supra)	 in  detail  and  in  paragraph  81	, 	
culled 	out 	various  principles  which 	Nagaraj	 (supra)  had 	laid  down. 	We 	
are  concerned  here  with  principles  (ix)  and  (x)  in  particular,  which  read 
as under:	 
(ix	)  The  concepts  of  efficiency,  b	ackwardness  and 	
inadequacy  of  representation  are  required  to  be 
identified  and  measured.  That  exercise  depends  on 
the  availability  of  data.  That  exercise  depends  on 
numerous  factors.  It  is  for  this  reason  that  the 
enabling  provisions  are  required  to  be  mad	e 	
because  each  competing  claim  seeks  to  achieve 
certain  goals.  How  best  one  should  optimise  these 
conflicting  claims  can  only  be  done  by  the 
administration  in  the  context  of  local  prevailing 
conditions in public employment.	 	
(x)  Article  16(4),  therefore,  cr	eates  a  field  which 	
enables  a  State  to  provide  for  reservation  provided 
there  exists  backwardness  of  a  class  and 
inadequacy  of  representation  in  employment.  These 
are  compelling  reasons.  They  do  not  exist  in  Article 
16(1).  It  is  only  when  these  reasons  are	 satisfied 	
that  a  State  gets  the  power  to  provide  for 
reservation in the matter of employment.	 	
 
19	. 	We  have  already  seen  that	, even  without  the 	help  of  the 	first  part 	
of  Article  16(4	-A)  of  the  2012  Amendment  Bill	, 	the  providing  of 	
quantifiable  data  on  bac	kwardness  when  it  comes  to  Scheduled  Castes 	
and Scheduled Tribes	, has already been held by us to be contrary to the 	
majority  in 	Indra  Sawhney	 (1) 	(supra). 	So  far  as  the  second  part  of  the
53	 	
 	
substituted 	Article 	16	(4	-A)	 contained  in  the  Bill  is  concerned,  we 	m	ay 	
notice	 that the proportionality to the population of Scheduled Castes and 	
Scheduled  Tribes  is  not  something  that  occurs  in  Article  16(4	-A) 	as 	
enacted, 	which  must  be  contrasted  with  Article  330.	 W	e may  only  add 	
that Article 46	, which is a provision occur	ring in the Directive Principles of 	
State  Policy	, has  always  made  the  distinction  between  the  Scheduled 	
C	astes  and  the  Scheduled  Tribes  and  other  weaker  sections  of  the 	
people. Article 46 reads as follows:	 	
 	
46.  Promotion  of  educational  and  economic 
intere	sts of Scheduled Castes, Scheduled Tribes 	
and  other  weaker  sections	.	The  State  shall 	
promote  with  special  care  the  educational  and 
economic  interests  of  the  weaker  sections  of  the 
people,  and,  in  particular,  of  the  Scheduled  Castes 
and  the  Scheduled  Tribes	,  and  shall  protect  them 	
from social injustice and all forms of exploitation.	 	
 
This  being  the  case,  it  is  easy  to  see  the  pattern  of  Article  46  being 
followed  in  Article  16(4)  and 	Article 	16(4	-A).  Whereas 	backward 	
classes	 in  Article  16(4)  is  equivalent 	to  the  weaker  sections  of  the 	
people  in  Article  46	, and  is  the  overall  genus, 	the 	species  of  Scheduled 	
Castes and Scheduled Tribes 	is 	separately mentioned in the lat	ter part of 	
Article 4	6 and 	Article 16(4	-A). 	This is for the reason, as has been pointed
54	 	
 	
out  by  us  earlier	, that  the  Scheduled  Castes  and  the  Scheduled  Tribes 	
are the most backward or the weakest of the weaker sections of society	, 	
and	 are,  there	fore,  presumed  to  be  backward. 	Shri  Dwivedis  argument 	
that  as  a  member  of  a  Scheduled  Caste  or 	a 	Sch	eduled  Tribe  reaches 	
the higher posts, 	he/	she no longer has the t	aint of 	either 	untouchabi	lity or 	
backwardness,  as  the  case  may  be	,  and	 that  therefore	, the  State  can 	
judge  the  absence  of  backwardness  as  the  posts  go  higher	, is  an 	
argument that goes to the 	validity of Article 16(4	-A). If we 	were	 to accept 	
this argument	, logically, we would have to strike down Article 16(4	-A), as 	
the  necessity  for  continuing  reservation  for  a  Scheduled  Caste 	and/	or 	
Scheduled  Tribe  member  in  the  higher  posts  would 	then	 disappe	ar. 	
Since  the  object  of  Article  16(4	-A)  and  16(4	-B)  is  to  do  away  with  the 	
nine	-Judge  Bench  in 	Indra  Sawhney	 (1) 	(supra)	 when  it  came  to 	
reservation  in  promotions	 in  favour  of  the  Scheduled  Castes  and 	
Scheduled  Tribes	,  that  object  must  be  given  effect  to	, and  has  been 	
given effect by the judgment in 	Nagaraj	 (supra)	. This being the case, we 	
cannot countenance an argument which would indirectly revisit the basis 
or foundation of the constitutional amendments themselves	, in order that 	
one  small  part  of 	Nagaraj	 (supra)	 be  upheld	, namely	, that  there  be	 	
quantifiable data for judging backwardness of the Scheduled Castes and
55	 	
 	
the  Scheduled  Tribes  in  promotional  posts. 	We  may  hasten  to  add  that 	
Shri Dwivedis argument cannot 	be 	confused with the concept of creamy 	
lay	er  which,  as  has  been  pointed  out  by  us  hereinabove,  applies  to 	
persons  within  the  Scheduled  Castes 	or  the	 Scheduled  Tribes  who  no 	
longer  require  reservation	, as  opposed  to  posts  beyond  the  entry 	stage, 	
which  may  be 	occupied	 by  members  of  the  Scheduled  Ca	stes  or 	the 	
Scheduled 	Tribes.	 	
 
20.	 	The  learned  Attorney  General  also  requested  us  to  lay  down  that 	
the  proportion  of  Scheduled  Castes  and  Scheduled  Tribes  to  the 
population of India should be taken to be the test for determining whether 
they  are  adequately	 represented  in  promotional  posts  for  the  purpose  of 	
Article 16(4	-A). He complained that 	Nagaraj	 (supra) ought to have 	stated 	
this	,  but  has  said  nothing  on  this  aspect.  According  to  us, 	Nagaraj	 	
(supra)  has  wisely  left  the  test  for  determining  adequacy  of 
representation  in  promotional  posts  to  the  States  for  the  simple  reason 
that  as  the  post  gets  higher,  it  may  be  necessary,  even  if  a 
proportionality  test  to  the  population  as  a  whole  is  taken  into  account	, to 	
reduce  the  number  of  Scheduled  Castes  and  Schedu	led  Tribes  in 	
promotional  posts,  as  one  goes  upwards.  This  is  for  the  simple  reason
56	 	
 	
that  efficiency  of  administration  has  to  be  looked  at  every  time 
promotions  are  made.  A	s  has  been  pointed  out  by  B.P.  Jeevan  Reddy	, 	
J.s  judgment  in 	Indra  Sawhney  (1)	 (supr	a),  there  may  be  certain  posts 	
right  at  the  top,  where  reservation  is  impermissible  altogether.  For  this 
reason,  we  make  it  clear  that  Article  16(4	-A)  has  been  couched  in 	
language  which  would  leave  it  to  the  States  to  determine  adequate 
representation  depe	nding  upon  the 	promotional 	post  that  is  in  question. 	
For  this  purpose,  the  contrast 	of  Article  16(4	-A)  and  16(4	-B) 	with  Article 	
330 of the Constitution is important. Article 330 reads	 as follows:	 	
330.  Reservation  of  seats  for  Scheduled  Castes 
and  Schedule	d  Tribes  in  the  House  of  the 	
People	.	(1)  Seats  shall  be  reserved  in  the  House 	
of the People for		 	
(a) the Scheduled Castes;	 	
(b)  the  Scheduled  Tribes  except  the  Scheduled 	
Tribes  in  the  autonomous  districts  of  Assam; 
and]	 	
(c)  the  Scheduled  Tribes  in  the  auton	omous 	
districts of Assam.	 	
(2)  The  number  of  seats  reserved  in  any  State	 or 	
Union  territory  for  the  Scheduled  Castes  or  the 
Scheduled  Tribes  under  clause  (1)  shall  bear,  as 
nearly  as  may  be,  the  same  proportion  to  the  total 
number  of  seats  allotted  to  that 	State	 or  Union 	
territory	 	in  the  House  of  the  People  as  the 	
population  of  the  Scheduled  Castes  in  the  State	 or 	
Union  territory  or  of  the  Scheduled  Tribes  in  the 
State	 or  Union  territory  or  part  of  the  State	 or  Union
57	 	
 	
territory,  as  the  case  may  be,  in  respect	 of  which 	
seats  are  so  reserved,  bears  to  the  total  population 
of the State	 or Union territory	. 	
(3)  Notwithstanding  anything  contained  in  clause 
(2),  the  number  of  seats  reserved  in  the  House  of 
the  People  for  the  Scheduled  Tribes  in  the 
autonomous distric	ts of Assam shall bear to the total 	
number  of  seats  allotted  to  that  State  a  proportion 
not less than the population of the Scheduled Tribes 
in  the  said  autonomous  districts  bears  to  the	 total 	
population of the State.	 	
Explanation.		In  this  article  and  in  Ar	ticle  332,  the 	
expression  population  means  the  population  as 
ascertained  at  the  last  preceding  census  of  which 
the relevant figures have been published:	 	
Provided that the reference in this Explanation to the 
last  preceding  censu	s  of  which  the  relevant  fi	gures 	
have  been  published  shall,  until  the  relevant  figures 
for  the  first  census  taken  after  the  year	 2026  have 	
been  published,  be  construed  as  a  reference  to 
the	 2001	 census.	 	
 	
It  can  be  seen  that  when  seats  are  to  be  reserved  in  the  House  of  the 
People  f	or  the  Scheduled  Castes  and  Scheduled  Tribes,  the  test  of 	
proportionality  to  the  population  is  mandated  by  the  Constitution.  The 
difference  in  language  between  this  provision  and  Article  16(4	-A)  is 	
important,  and  we  decline  the  invitation  of  the  learned  At	torney  General 	
to say any more in this behalf.
58	 	
 	
21	. 	Thus	, we conclude that the judgment in 	Nagaraj 	(supra)	 does	 not 	
need to be referred to a seven	Judge Bench. 	However, the conclusion in 	
Nagaraj	 (supra)  that  the  State  has  to  collect  quantifiable  data  showi	ng 	
backwardness of the Scheduled Castes and 	the 	Scheduled Tribes, being 	
contrary to the nine	-Judge Bench in 	Indra Sawhney (1)	 (supra) is held to 	
be invalid to this extent.	 	
 	
 
 	 	 	 	 	 	 	..CJI	 	
 	 	 	 	 	 	 	(Dipak Misra)	 	
 
 
 	 	 	 	 	 	 	..J.	 	
 	 	 	 	 	 	 	(Kuria	n Joseph)	 	
 
 
 	 	 	 	 	 	 	..J.	 	
 	 	 	 	 	 	 	(R.F. Nariman)	 	
 
 
 	 	 	 	 	 	 	..J.	 	
 	 	 	 	 	 	 	(Sanjay Kishan Kaul)	 	
 
 
 	 	 	 	 	 	 	..J.	 	
 	 	 	 	 	 	 	(Indu Malhotra)	 	
New Delhi;	 	
September	 26	, 2018.

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