The Supreme Court on Monday justified the exclusion of the creamy layer in the Backward Classes, including the Scheduled Castes and Scheduled Tribes, from the purview of reservations in Government jobs, saying it was intended to uplift the worse off among these communities.
"The concept of creamy layer is not meant to exclude anybody…but to promote those who are financially worse off," a three-judge Bench headed by Chief Justice of India YK Sabharwal said, adding it has become acceptable after the apex court judgment in the Indira Shawney case (Mandal case).
The observations came on a PIL filed by Haribhau Rathod, a BJP MP from Yavatmal in Maharashtra seeking exemption from operation of the rule of 'creamy layer' for persons working as artisans or engaged in other hereditary occupations like performing last rites at crematoriums or skinning of dead animals.
The Bench also comprising Justices CK Thakker and RV Raveendran posted the PIL for hearing on Friday along with another petition which raised similar issue.
Commenting on Government’s stand, the court said if the affluent among the Backward Classes were not excluded from the purview of quota in government jobs, it would adversely affect those who actually need it.
“You are only paying lip service to those who are in fact socially, educationally and economically backward,” the court told the petitioner’s counsel after he said that even if financially well off, certain communities should be kept out of the creamy layer concept as they were socially backward.
“Do you mean to say that in OBCs who are not in the category of creamy layer should not get the benefit and financially well-off among them should continue to get the benefit of reservation at the cost of those who really deserve it?” he court asked.
A Constitution Bench of the court recently extended the concept of creamy layer to the reservations in government jobs for SCs and STs. Reiterating it ruling in the Mandal case, the court had put 50 per cent ceiling on quotas, saying breach of the benchmark would result in reverse discrimination.
While the Congress and the Left parties are against the exclusion of creamy layer among SCs and STs in reservations, the BJP has formed a committee under Murli Manohar Joshi to look into it.
Rathod has sought implementation of a1993 Office Memorandum of the Ministry of Social Welfare and Empowerment, which provided that the rule of exclusion of creamy layer in quota for OBCs under Article 16(4) of the Constitution would not apply to persons working as artisans or engaged in hereditary occupations.
Petitioner’s counsel Shree Pal Singh contended that though the memorandum dated September 8, 1993 envisaged preparing a list of such occupations, government failed to come out with it even after 13 years.
According to the petitioner, a large number of persons across the country engaged in hereditary occupations like performing the last rites and skinning of dead animals etc have been deprived of the benefit of the office memorandum only because the list has not been notified by the Government so far.
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