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(e) the actual representation of such class of persons in the matter of public employment and a comparison with the benchmarks to show compelling state need to exercise powers under Article 16(4) or Article 16(4A);
(f) setting up a continuous mechanism to see that the benchmarks and thresholds laid down are not breached and as soon as the targets are achieved, reservation is discontinued so as not to cause reverse discrimination and a breach of constitutional requirements. It is pleaded that these are necessary requirements in view of the law laid down by the Supreme Court, which the respondents were required to carry out before providing for, or for that matter, continuation with the policy of reservation in promotions, conferring consequential seniority, etc. It is then pleaded that despite the decision of the Supreme Court, the respondents have not carried out any of the above exercises which would justify the exercise of the enabling power by the authorities, and that the burden to establish the existence of compelling need is on the State, and if the State fails to satisfy the compelling need, it would necessarily mean absence of jurisdictional facts and as such the exercise of power under the enabling provisions would be unsustainable. Insofar as, reliance by the respondents on the circular dated 2.3.2007 is concerned, it is the case of the applicants that the same is purported to have been issued in compliance of the judgment of the Apex Court in M. Nagaraj (supra). It is the case of the applicants that the said circular is not a compliance of the judgment of the Supreme Court, but is merely communication of the operative directions contained therein. No exercise as mentioned above, it is pleaded, has been carried out, which ought to have been carried out as per the directions of the Apex Court before the power could have been exercised, but the State has failed to carry out the exercise even after the judgment.

15. The question raised by learned ASG being a sort of preliminary objection, we may deal with the same in the first instance before we may advert to the main controversy as regards fulfilling the conditions subject to which alone the challenged provisions of the Constitution before the Honble Supreme Court in M.Nagarajs case(supra) were protected.

16. The question raised by learned ASG, as mentioned above, has been canvassed on the basis of judicial precedents and provisions of Articles 341 and 342 of the Constitution of India. Before we may, however, refer to the same, it would be appropriate to find out as to what were the issues that came to be framed by the Honble Supreme Court in M.Nagrajs case, and what decision has been rendered on the said issues. In a writ that came to be filed in Honble Supreme Court seeking to quash the Constitution (85th Amendment) Act, 2001 inserting Article 16(4A) retrospectively from 17.06.1995 providing for reservation in promotion with consequential seniority as being unconstitutional and violative of basic structure, one of the arguments raised in challenging the said amendment was that it seeks to alter the fundamental right of equality which is a part of basic structure of the Constitution. It was urged that equality in the context of Article 16(1) connotes accelerated promotion which was not to include consequential seniority, and thereby attaching of consequential seniority to accelerated promotion would violate the equality in Article 14 read with Article 16(1) of the Constitution. It was also urged that the same would impair efficiency. The challenge was also to Constitution (77th Amendment) Act, 1995. It was urged that if accelerated seniority is given to the roster point promotees, the consequences would be disastrous. The consequences of the impugned 85th Amendment which provides for reservation in promotion with consequential seniority would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre.

28. The justification for permitting reservation in favour of SCs and STs is that these communities are considered to be backward. The creamy layer principle is evolved for the simple reason that an erstwhile person belonging to backward class is no more backward. Once, he may rub shoulders with any general category candidate, and, in a given case, may be even better placed than him, he would no more be backward socially, economically or educationally. We may illustrate  an SC category candidate, because of the percentage of seats reserved for his category, may be selected and appointed to the Indian Administrative Service (IAS) or the Indian Police Service (IPS). Once, he occupies the elite service in the country, he gets a status which may be far better than that of a general category employee occupying some other post far below to that of IAS or IPS, who, even though may have competed with the SC category candidate and obtained more marks than him, but could not make it to the elite service. Such an SC category candidate may have in due course four children and all of them may, because of reservation, also come to be selected and appointed to the same service. Can children of such reserved category person be said to be socially, economically and educationally backward! In our considered view, he will have perhaps far better means than his general category counterpart to get his children educated in the best of educational educations in the country. His social status is uplifted and he has, by virtue of the office held by him, a far higher social status than the general category employee may have. Of course, any pay in this country may not be enough, but once a person is in an all India service, he cannot be said to be economically backward. If despite all this, the principle of creamy layer is not to be applied to him, in our view, it would constitute discrimination against general category candidates, which would be constitutionally impermissible in terms of Article 16 of the Constitution. Once, the tag of backwardness goes, then the differentiation between the SC/ST and general categories only on the basis of caste would be impermissible and against all canons of principle of equality. There has to be exclusion of the creamy layer from the benefits of reservation/affirmative action of the State, as otherwise it would become discriminatory between equals, who cannot be treated unequal only on the basis of caste. The comparison in such a case is a comparison of the individual who is to be given the benefit with a similarly situated person of the forward group. Such person cannot be given the benefit of affirmative action of the State under Articles 15(4), 16(4) or 16(4A), as such person would not satisfy the test of backwardness. The principle of exclusion of the forwards amongst the backwards, i.e., creamy layer, it appears, has been culled out by the Honble Supreme Court for the reasons as we have already mentioned above. The basic premise and the theme behind affirmative action is to permit proportionate equality for the time being to achieve real equality or formal equality, proportionate equality being the means to achieve an end, i.e., formal equality. To permit benefits of affirmative action to those who may not need State protection would be defeating the goal of formal equality and would amount to reverse discrimination. The justification of an affirmative Station action is existence of backwardness, and if this test of backwardness is not satisfied, there would be no justification for affirmative action and the action would be hit by Article 14 of the Constitution. Thus, where identification is based on caste, exclusion of creamy layer necessarily comes in to justify a class to satisfy the characteristics of a same class. The Honble Supreme Court in R. S. Garg v State of Uttar Pradesh [(2006) 6 SCC 430] has held that affirmative action in essence and spirit involves classification of people as backward class of citizens and those are not backward class of citizens, and that a group of persons although are not as such backward or by passage of time ceased to be so, would come within the purview of the creamy layer doctrine evolved by the Honble Supreme Court. Pertinent observations which may need reproduction contained in para 37, read, thus: