From a reading of the Supreme Court’s judgement on reservation in promotion delivered on Wednesday, it appears that the court has upheld the validity of Articles 16 (4A) and 16 (4B) of the Constitution, which provide for reservations in promotion for Scheduled Castes and Scheduled Tribes with consequential seniority.

However, the judgement appears to have raised the “creamy layer” bar on reservation in promotion – the creamy layer being a concept that puts an income ceiling on people who avail of reservations in jobs and education. It also seems that state governments have the discretion to invoke Articles 16 (4A) and 16 (4B), which the judgement calls “enabling provisos”, thus diluting the spirit of the amendments.

When it comes to direct recruitment, the Scheduled Castes and Scheduled Tribes do not need to worry about the imposition of the creamy layer. But if this concept is applied in promotions, it will nullify reservations being provided at the next higher level.

Going by the creamy layer ceiling of Rs 8 lakh per annum in the case of Other Backward Classes, even “Group D” functionaries such as junior assistants and drivers will come under the definition of creamy layer.

Creating a jam

The Scheduled Castes and Scheduled Tribes lack representation mainly at the Group A level – chief executive officers, managing directors, which do not have direct recruitment provisions. Promotions are the only way members of these communities can make it to this level. When Group D employees themselves become part of the creamy layer, how can reservation be applied to Group A posts?

The consequence of the Supreme Court judgement will be that promotions will stop even at the Group D and Group C levels.

To illustrate the impact of this verdict, take reservation in promotion in public sector banks. Banks currently provide reservation in promotion up to Scale 5 (deputy general manager). But with the application of the creamy layer concept, this will stop at Scale 1 (probationary officer). Thus, the judgement will reverse the existing reservations by four levels i.e., instead of going up to Scale 5, reservations will stop at Scale 1 itself.

Protecting autonomy

India’s social diaspora is broadly divided into two categories – one that belongs to the caste or varnashrama structure and the other that has opted out of this system. The Scheduled Castes and Scheduled Tribes make up this second category. They are the only two classes of people who have vehemently opposed getting into the caste system. Therefore, the preparation of the Scheduled Caste list took into account their untouchability and backwardness, which were a consequences of the aggression and assaults they faced from caste groups. The Constitution made the Scheduled Castes and Scheduled Tribes as a separate category of subjects. This was not only to protect them from such aggression but also to help them gain the strength they need to withstand it and to grow autonomously.

It appears that the Supreme Court has snatched away with its left hand what it offered with its right hand.

R Christodas Gandhi is a retired IAS officer of the Tamil Nadu cadre.