The Supreme Court of India.

NEW DELHI: In a historic decision, a five-judge Constitution bench of the Supreme Court on Wednesday ruled that the " creamy layer exclusion " principle, till date applied only to OBCs, can be extended to Scheduled Castes (SCs) and Scheduled Tribes (STs) to deny reservation to the "elite" among the two underprivileged communities.

The order of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra overshadowed the relief they gave to the Centre, states and SC & ST government employees in exempting states from collecting quantifiable data on backwardness to justify reservation in promotion for the two categories.

The bench said their backwardness has been recognised as inherent to them after statutorily provided scrutiny to warrant inclusion in the list of scheduled communities under Presidential Order to get reservation benefits.

The requirement to furnish quantifiable data, laid down by the Supreme Court in the M Nagraj case in 2006, to justify reservation in promotions for SC & ST employees has held up elevation of serving employees from the two categories, leading to restiveness in their ranks.

But the extension of "creamy layer" criterion is sure to temper the happiness over the bench doing away with the mandatory requirement to back up the case for promotion in quota by marshalling data on backwardness.

The CJI -led bench unanimously agreed to extend the "creamy layer exclusion" principle to SCs and STs and said: "The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis."

"This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes , it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India," it said.

"The caste or group or sub-group named in the said list 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," Justice Nariman wrote for the bench.

While doing away with the stipulation to collect data to justify quota in promotion for SCs & STs, the bench turned down the demand of the petitioners for reconsideration of the Nagraj judgment. In upholding the validity of Article 16(4A) providing promotion in reservation to SC and ST government employees, the SC had in the Nagraj case put three caveats that almost turned out to be a spanner in its implementation.

Writing the unanimous 58-page judgment for the bench, Justice Nariman said the Nagraj ruling need not be sent for reconsideration to a seven-judge bench while correcting the only mistake in it.

Saying that SCs and STs are presumed to be backward, warranting their inclusion in the Presidential Order, the bench said, "It is clear that when Nagraj requires the state to collect quantifiable data on backwardness, insofar as SCs and STs are concerned, this would clearly be contrary to the nine-judge bench verdict in the Indra Sawhney case in 1992 and would have to be declared to be bad on this ground."

However, the bench said the Nagraj ruling was correct in directing the states to determine through quantifiable data the adequacy of representation of SC/ST government employees in a cadre prior to giving quota in promotion. It also upheld the 2006 judgment's stipulation that the states must take into account the impact of such promotion on administrative efficiency.

Justice Nariman said: "According to us, Nagraj has wisely left the test for determining adequacy of representation in promotional posts to the states for the simple reason that as the posts get 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 SCs and STs in the promotional posts as one goes upwards." This is in sync with the bench's observation during the hearing that quota in promotion should reduce in a pyramidal manner as the posts to which promotion is being made gets higher.

