At the meeting of the GoM on Dalit Affairs, it was decided that Attorney-General Milon Bannerjee would explore the options that government could utilise to get around the SC ruling. 

Measures which have been suggested include legislation, a Presidential reference or use of the Ninth Schedule. GoM sources said a 'political decision' had been taken that the SC ruling could not be allowed to stand. 

The new creamy layer formulation had the potential to trigger political turmoil, not the least within the UPA ranks itself. 

The SC ruling, which has also been interpreted as being applicable to all quotas, has evoked deep resentment amongst Dalit, tribal and OBC politicians. 

But, while the political approach to the SC ruling was relatively easy to define, the options before government will require further analysis of SC's pronouncement. 

The five-judge Bench which gave the order was considering cases related to reservation in promotions and its views on the creamy layer itself were out of place, the GoM felt. 

The SC order has created an element of confusion where the creamy layer principle would also apply to fresh OBC reservations in central institutions. 

GoM was of the view that the education quota Bill be allowed to proceed as planned in the winter session of Parliament. 

The limitation of seeking a review before SC is that the appeal will be considered by the same Bench that delivered the verdict. 

Utilising the 9th Schedule can also be fraught with risk as SC may disagree with the executive decision to move the provisions of the Constitution dealing with SC and ST reservation beyond judicial review.
 
 

Creamy Layer for Reservation

New Delhi, October 19
The Supreme Court today set at rest the controversy over extending reservation to SCs and STs in promotion in government jobs after they had availed it in recruitment, by upholding the validity of all four constitutional Amendments made by the government to provide benefit to them, but said the principle of “creamy layer” would strictly apply in their promotions.

A five-Judge Constitution Bench, headed by Chief Justice Y K Sabharwal, said while providing reservation in promotion to SC and ST employees, the ceiling limit of 50 per cent fixed by the court in the Mandal Commission case on reservation to strike a balance of equality vis-à-vis general category candidates, would not be violated.

The court said the “creamy layer” principle would apply to SC and ST employees in promotions and those covered under it would not get the benefit and nor would be the backlog of vacancies be carried forward for indefinite period to avail the benefit by them, the Bench besides the CJI having Justices K G Balakrishnan, S H Kapadia, C K Thakker and P.K. Balasubramanyan ruled. The court clarified further that the Amendments were confined only to SC and ST persons and did not “obliterate” any constitutional requirement.

The Constitution Bench ruling came on nearly 70 petitions that had flooded the court from various states, challenging the 77th, 81st, 82nd and 85th Amendments effected by successive governments to overcome the Mandal Commission ruling that there would be no reservation in promotions.

While the 77th Amendment removed the impediment of Mandal Commission ruling doing away with the bar on reservation in promotion, the 81st permitted the states to treat the backlog of ST and SC vacancies separately and not count these for applying the 50 per cent ceiling, both at the entry point in the job and in promotion. The 82nd Amendment gave power to the states to relax qualifying marks for SC/ STs in recruitment exams and the 85th Amendment provided consequential seniority to employees of these categories on promotions in backlog vacancies.

The court said for effective implementation of reservation in order to strike a balance of equality, vis-à-vis OBCs and general category employees, the state governments “shall apply” post-based roster with in-built concept of replacement. It clarified that the amendments had made classification between the new vacancies and the backlog vide Article 16(4B) which had to be kept in mind by the state governments.

The court recognised that the amendments had retained the reservation in promotions by keeping in mind various factors and compelling reasons, which included backwardness of SCs and STs and their inadequate representation in government jobs. 

But at the same time for maintaining efficiency of administration, the states could not be allowed to carry the backlog vacancies forward for an indefinite period as they had to strike a rationale balance, it ruled.

“We reiterate that the ceiling limit of 50 per cent, the concept of creamy layer and the compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse,” the Bench ruled.
 
 

Creamy layer category under OBC quota
19-07-2006
New Delhi: Children of the President, the Vice-President, and judges of the Supreme Court and High Courts fall under the "creamy layer" among the Other Backward Classes (OBCs) under the criteria fixed for exclusion from reservation in civil posts and services. 

Children of members of the Union Public Service Commission and the State Public Service Commissions, the Chief Election Commissioner, the Comptroller and Auditor General of India, and persons holding Constitutional positions of this nature also fall under the creamy layer category. 

Under the criteria, persons having a gross annual income of Rs.2.5 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Act for a period of three consecutive years are also excluded. 

The creamy layer covers sons and daughters of Group A/Class 1 officers of the All-India Central and State Services (direct recruits). 

Detailing the criteria, an official note said children of officers holding equivalent or comparable posts in public sector units, banks, insurance organisations, and universities also fell under this category, along with others holding equivalent or comparable posts in private employment. 

Also excluded are children of doctors, lawyers, chartered accountants, income tax consultants, financial or management consultants, dental surgeons, engineers, architects, computer specialists, film artists and other film professionals, authors, playwrights, sportspersons, sports and media professionals or any other vocations of like status, the note said.

As quota debate rages, IIM-A sets cut-off for CAT
NEW DELHI, JULY 19:To maintain standards in the wake of government plans for OBC quota, the Indian Institute of Management in Ahmedabad has quietly introduced a minimum cut-off in the Common Admission Test (CAT) for students, depending on their category.
It has the same cut-off for students in general and OBC categories but the cut-off for SC/ST and disabled candidates is a few notches lower: to be precise, 8 per cent lower than the general or OBC candidates. In the CAT-2006 bulletin, which was released last Sunday, the IIM-Ahmedabad has, for the first time, put a minimum cut-off for candidates. None of the other five IIMs have any such minimum cut-off. 

The bulletin states: “Please note that the cut-off for shortlisting SC/ST/PWD (persons with disabilities) candidates for group discussion and personal interviews would not be less than 17 per cent score in each of the three sections of CAT 2006, and no less than 25 per cent score in aggregate.” 

“For other categories, it would be no less than 25 per cent in each of the three sections and no less than 33 per cent in aggregate.” 

CAT is divided into three sections: English Usage, Quantitative Ability (Maths) and Data Interpretation & Logical Ability. 

IIM-A Director Prof Bakul Dholakia told The Indian Express: “This has been done to ensure minimum qualifying performance in all three segments in the CAT. We need all-rounders.’’ He said this cut-off has been put in the public domain for the first time though it was followed in the internal admission process. 

He confirmed that “other categories” would mean OBC and general categories, and both will be treated at par, for the “minimum cut-off”. 

The reason, he said: “SC/ST candidates are given 5 per cent relaxation in graduation marks, so they have been treated differently as against other categories for CAT as well.” 

But the CAT bulletin states that “the actual cut-offs used for shortlisting, however, may be higher than the above-mentioned percentage scores and would depend on the performance of candidates in CAT-2006.” 

IIM-A sources said the minimum cut-offs have been announced to rule out any situation of the institute being forced to admit a candidate who scores below this cut-off and there is a vacancy in that particular category. 

“This will ensure that someone scoring lower than 17 per cent in each section in case of reserved categories and 25 per cent in case of OBC and general categories are not admitted,” the source said. 

“We know that the cut-offs will be much higher than these, as we select only the top 900 candidates out of 1.6 lakh. This is just to ensure that our minimum standards are not compromised, in case of increased student intake from the next academic year,” the source said. 

On the OBC quota, the CAT bulletin says that the Government proposes to reserve seats for candidates belonging to OBCs from 2007-08 and details of reservation will be notified once an official communication comes from the appropriate authority. It has asked candidates to enclose a photocopy of their category, including OBC, and mark the category while filling the application form.