NEW DELHI, 9 Jan: The Supreme Court on Thursday said that the executive and the legislature would decide whether persons who have availed quota benefits and are in a position to compete with others are to be excluded from reservation.
A bench of Justices BR Gavai and Augustine George Masih made the observation on a plea referring to a seven-judge Constitution bench judgement of the apex court in August last year.
“We have given our view that taking into consideration the past 75 years, such persons who have already availed benefits and are in a position to compete with others, should be excluded from reservation. But it is a call to be taken by the executive and the legislature,” said Justice Gavai.
The Constitution bench, by a majority verdict, held that states are constitutionally empowered to make sub-classifications within the scheduled castes (SC), which form a socially heterogeneous class, for granting reservation for the upliftment of castes that are socially and educationally more backward among them.
Justice Gavai, who was part of the Constitution bench and penned a separate verdict, had said that states must evolve a policy for identifying the “creamy layer” even among the SCs and schedule tribes and deny them the benefit of reservation.
On Thursday, the counsel appearing for the petitioner referred to the apex court’s verdict asking for the policy to identify such a “creamy layer.”
Justice Gavai said the apex court’s view was that sub-classification is permissible.
The petitioner’s counsel said the Constitution bench had directed states to formulate the policy and almost six months have passed since.
“We are not inclined,” the bench said.
When the counsel requested to withdraw the plea to file a representation before the authority concerned, which could decide on the issue, the bench allowed it.
He argued that states would not frame the policy and eventually the top court would have to intervene, to which the court said, “The legislators are there. Legislators can enact a law.”
On 1 August last year, the apex court’s verdict was clear on the states making a sub-classification on the basis of “quantifiable and demonstrable data” of backwardness and representation in government jobs and not on “whims” and as a matter of “political expediency.”
The seven-judge bench, by a majority of 6:1, set aside the apex court’s five-judge bench verdict of 2004 in the EV Chinnaiah vs state of Andhra Pradesh case which held no sub-classification of SCs could be allowed as they are a homogeneous class in themselves. (PTI)