“They are presumed backward,” Mr. Venugopal submitted, saying the State needs to show “affirmative action” by giving them equality of opportunity.
The government objected to a creamy layer concept among the SC/ST. “You cannot dissect the SC/ST and see those who are worthy (of quota) and those who are not,” Mr. Venugopal submitted. As far as the qualifier “inadequate representation” was concerned, Mr. Venugopal asked, “How do you establish inadequacy of representation? Who will establish it? Is it for each post or the entire department?”
The government said it wanted a total of 22.5% (15% for SC+7.5% for ST) posts reserved for promotion for SC/ST in public employment. Only this quantum would satisfy their need for adequate representation. Mr. Venugopal said it was not possible to comply in every case the conditions laid down by the Nagaraj judgment in 2006. During the hearing, Chief Justice Misra said the three criteria — backwardness, inadequacy and administrative efficiency — were “compelling reasons” so that reservation by government was not excessive. The three qualifiers were meant to prevent reservation from making an inroad into the right of equal opportunity in public employment.