July 18, 2024
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This article has been written by Sanju Jha pursuing Ba. Llb from Rnb Global University, Bikaner.


The caste system is one of the unique features of Indian society. Its root can be traced back to thousands of years, alienated many “lower castes” from the mainstream- hindering their development. Originally, the constitution of India provided reservation only for quota in legislatures for 10 years until 1960(Article 334). Subsequent amendments extended this period. The intial reservations were only for SC and ST [Article 15(4) and Article 16(4)]. OBCs were included in 1991 (Article 15(5). In 2019, Economically Weaker Sections are also included (Article 15(6) and Article 16(6).


The concept of carrying forward or carryover of unfilled reserved vacancies is often a part of the implementation of reservation policies, particularly in the context of public employment.

In the context of reservation in public employment, including Article 16(4) of the Indian Constitution, certain states and union territories may adopt a carry forward rule. This rule allows the unfilled reserved vacancies of a particular recruitment cycle to be added to the reserved vacancies of the subsequent cycle. The purpose is to ensure that over a period, the benefits of reservations reach the intended communities and that the overall representation of these communities in government jobs improves.

The specific details regarding the carry forward rule, if adopted, may be outlined in laws, policies, or government orders at the state or central level. These could include provisions specifying the conditions under which carry forward is allowed, the duration for which vacancies can be carried forward, and any other relevant details.


The scope of the carry forward rule in the context of reservation in India typically to the next. The aim is to ensure that the benefits of reservations for Scheduled Castes (SCs), Scheduled Tribes (STs), and other socially and educationally backward classes are effectively realized over time. Here are some aspects that may define the scope of the carry forward rule:

  1. Unfilled Reserved Vacancies: The carry forward rule allows the unfilled reserved vacancies of a particular recruitment cycle to be carried forward to the subsequent cycle. This is usually applicable to reserved categories like SCs, STs, and OBCs.
  2. Time Limitations: There might be specifications regarding the time duration for which the reserved vacancies can be carried forward. This ensures that vacancies are not indefinitely accumulated but are utilized within a reasonable timeframe.
  3. Conditions for Implementation: The implementation of the carry forward rule may be subject to certain conditions, such as the availability of suitable candidates from the reserved categories, adherence to merit principles, and compliance with legal requirements.
  4. Government Orders and Policies: The specific details of the carry forward rule, including its scope, may be outlined in government orders, policies, or guidelines issued by the concerned authorities. These documents provide the necessary instructions for its application.
  5. Legislation and Constitutional Provisions: While the Indian Constitution, particularly Article 16(4), allows for reservations, the detailed provisions regarding the carry forward rule may be specified in laws or regulations enacted by the central or state governments.

It’s important to note that the scope of the carry forward rule may vary among different states and union territories in India. The rules and conditions are often determined by the respective state governments or union territories based on their specific requirements and social dynamics.


The Supreme Court considered the scope of Article 16(4) in T. Devadasan v. Union of India (1964). In this case, the constitutional validity of the “carry forward rule” which was framed by the government to regulate the appointment of people from the backward classes where state services were involved, was at issue. This rule states that in case a sufficient number of candidates belonging to the SCs and STs classes were not available for appointment to the reserved quota, then the vacancies that remained unfilled would be treated as unreserved and would be filled by the fresh available candidates; however, a corresponding number of posts would be reserved in the next year for SCs and STs in addition to their reserved quota for the next year.

The result was to carry forward the unutilised balance and unfilled vacancies in the second and third years at one time. In actuality, 68 percent of the vacancies were reserved for SCs and STs. The Hon’ble Supreme Court, by a 4:1 majority, had struck down the carry forward rule, declaring it unconstitutional on the ground that the power vested in government under Article 16(4) cannot be exercised in order to deny reasonable equality of opportunity pertaining to matters of public employment for members of classes other than backward classes.

The Court said that recruitment must be considered each year, and the reservation for backward communities each year should not be excessive enough to create a monopoly or interfere unduly with other communities’ legitimate claims. Accordingly, the Court held that the reservation ought to be less than 50 percent, but how much less than half would depend upon the prevailing circumstances in each case.


The Hon’ble Supreme Court, in Indra Sawhney v. Union of India, overruled Devadasan v. Union of India on the point and held the “carry forward rule” valid as long as it did not, in a particular year, exceed 50 percent of vacancies. The 50% limit can only be exceeded in extraordinary situations prevailing in a State, i.e., far-flung states such as Nagaland, etc.

The Supreme Court has upheld the law of Karnataka which provides reservation in promotions in favour of Scheduled Castes and Scheduled Tribes. The court upheld the law which provides consequential seniority .i.e. a person promoted would also get seniority as a consequence.

Catch-up Rule

The Supreme Court in Virpal Chauhan (1995) held that once a general candidate is promoted, he would become senior to an already promoted SC/ST candidate if he/she had been senior in the lower cadre. This was termed the ‘catch-up’ rule. Again in the case of Ajit Singh in 1999 Supreme Court had held that a general employee will regain seniority over an earlier promoted SC/ST employee if the former is promoted prior to the latter to the next higher cadre.

Parliament intervened against the ruling in 2001, with the 85th Constitutional Amendment to provide consequential seniority. The amendment substituted the words ‘in matters of promotion to any class’ with the words ‘in matters of promotion, with consequential seniority, to any class’ in clause (4A) of Article 16 of the Constitution. Even the government of Karnataka enacted a law providing consequential seniority for SCs/STs promoted under reservation in promotions.

Both of these amendments were challenged in the case of M Nagraj. Even though the Supreme Court upheld both the amendments it rejected the argument that replacement of ‘catch-up rule’ with ‘consequential seniority rule’ as it violates the basic structure of the Constitution. The Supreme Court held that Article 16(4A) is just an enabling provision, and the state is not bound to provide for reservation in promotion, but if it wants to do so, it must meet the requirement of collection of quantifiable data on three aspects:

•        The backwardness of the class,

•        Inadequacy of representation

•        The general efficiency of services not to be affected.


In the case of BK Pavitra, the Supreme Court had struck down the Karnataka law since it did not comply with the above three conditions. The state then constituted the Ratna Prabha Committee which collected the data from 1984 to 2016 across 31 departments. The committee found that SC and STs constituted just 10.65% and 2.92% respectively of filled posts. Based on the report, the Karnataka government enacted a new law in 2018. The Presidential assent was also obtained.

The new law of Karnataka government was again questioned in the Supreme Court. While upholding the law the Supreme Court observed that the verdict in the case of BK Pavitra in no way stopped the government from providing reservation in promotion after complying with the Nagraj conditions, and held that the Karnataka law is not a brazen overruling of the Pavitra judgment.


Following the constitutional recognition of reservation in promotion, the reserved category candidates who were promoted ahead of their general class counterparts became their seniors due to their earlier promotion. The Hon’ble Supreme Court addressed this anomaly by introducing the concept of a catch-up rule in two cases: Union of India v. Virpal Singh (1995) and Ajit Singh v. State of Punjab (1996). According to this rule, the senior general category candidates who were promoted after SC/ST candidates would regain their seniority over general category candidates who were promoted earlier.

Consequential seniority allows reserved category candidates to maintain seniority over general category peers. In other words, it is open to the State to provide that the candidate promoted earlier by way of the reservation rule shall not be entitled to seniority over his senior in the general category and that as and when a general candidate who was senior to him is promoted, he will regain his seniority over the reserved candidate notwithstanding that he is promoted subsequently to the reserved candidate.

The concepts of catch-up rule and consequential seniority are not constitutional requirements; neither are they implied in Article 16 clauses (1) and (4), nor are they constitutional limitations. Obliteration of these rules does not change the equality code indicated by Articles 14, 15, and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the state from taking cognizance of the compelling interests of backward classes in society. Clause (4) of Article 16 refers to affirmative actions by way of reservation, under which the government is free to provide reservation if it is satisfied on the basis of quantifiable data that backward classes are inadequately represented in the service. Therefore, in every case where the States decide to provide reservation, there must be two circumstances, namely, “backwardness” and “inadequacy of representation.” These limitations have not been removed by the impugned amendments. If the States fail to apply these tests, the reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (Equality Code). The parameters mentioned in Article 16 (4) are retained. These amendments do not change the identity of the Constitution.


The Parliament enacted the Constitution 77th Amendment Act, 1995, in order to bypass the Court’s ruling on the point of no reservation in promotions in government service.

This Amendment added a new Clause (4-A) to Article 16 of the Constitution, which states that the State has the authority to make provisions for reservations in matters of promotion in favour of SCs and STs if the State believes they are underrepresented in State services.

Therefore, with the intent of reservation in matters concerning the promotion of SCs and STs, Clause (4) was inserted in Article 16 of the Constitution by the 77th Amendment. Clause (4) states that “nothing in Article 16 of the Indian Constitution shall prevent the State from enacting any provision for reservation in matters concerning promotion in favour of the Scheduled Castes and Scheduled Tribes in any state or Government related job”. Thus, the reservation in promotion in government jobs will continue in favour of SCs & STs even after the verdict of the Indra Sawhney case if the government wants to do so.


The Supreme Court ruled in Indra Sawhney v. Union of India that the 50% limit would apply to both current and backlog vacancies. The eighty-first amendment added a new clause (4-B) in Article 16 after Clause (4-A), removing the 50% ceiling on reservation for SCs/STs and OBCs in backlog vacancies that could not be filled in previous years due to a lack of qualified candidates. According to Art. 16, clause (4-B), vacancies that could not be filled in previous years are treated as a separate class of vacancies and will be filled in any succeeding years and are not considered together with the vacancies of the year or years, even if they exceed the 50% limit.


The Amendment changed the words “in matters of promotion to any class” in Clause 4-A to “in matters of promotion, with consequential seniority, to any class.” This Amendment aimed to extend the benefit of reservation in favour of the SC/ST in matters of promotion with consequential seniority, effective from April 1995, when the 77th Amendment to the Constitution was enacted.

The Hon’ble Supreme Court unanimously held in M. Nagaraj v. Union of India AIR 2007 SC 71 that the provisions under Article 16(4A) and 16(4B) flow from Article 16(4), which do not alter the basic structure of Article 16(4) and are valid. It also stated that the insertion of Clauses (4A) and (4B) into Article 16 does not change Article 16(4) of the Constitution. It was stated that the aforementioned amendments to the Indian Constitution providing for reservations are enabling provisions that do not change the structure of Article 16. (4). They aid in the retention of the controlling factors, namely backwardness and inadequacy of representation, allowing the State to provide for reservation while keeping the overall efficiency of the State administration in mind under Article 335. These amendments apply only to SCs and STs and do not repeal constitutional requirements such as the 50% ceiling limit (quantitative limitation), sub-classification of OBCs, SCs, and STs, and the concept of creamy layer (qualitative exclusion).

In Jarnail Singh v. Lachhmi Narain Gupta (2018), the Hon’ble Supreme Court, by a larger bench of 7 judges, struck down its backwardness criterion, held in the Nagaraj case, however, introduced the principle of creamy layer exclusion. It was held that the creamy layer exclusion shall extend to SCs/STs, however, the state cannot grant reservations in the promotion to SC/ST individuals who are members of their community’s creamy layer.


The concept of “creamy layer” in the context of reservation refers to the exclusion of certain economically advanced members within the Scheduled Castes (SCs) and Scheduled Tribes (STs) from the benefits of reservation policies. The term is commonly used in India, particularly in relation to reservations in education and public employment.

The idea behind the creamy layer concept is to ensure that the benefits of affirmative action policies, such as reservations, reach those who genuinely need them due to historical disadvantages and social backwardness, rather than benefiting individuals or families that have already achieved a certain level of socio-economic advancement.

Key points related to the creamy layer concept include:

  1. Income and Social Criteria: The creamy layer is often defined based on certain income and social criteria. Members of the SCs and STs who fall within a specified income bracket or have achieved a certain level of social and economic advancement may be considered part of the creamy layer.
  2. Exclusion from Reservations: Individuals classified as part of the creamy layer are generally excluded from availing the benefits of reservations in educational institutions and public employment. This exclusion is intended to target the benefits to those who are socio-economically disadvantaged within these communities.
  3. Rationale for Implementation: The rationale behind implementing the creamy layer concept is to address concerns about the perpetuation of socio-economic inequalities within the reserved categories. By excluding the economically advanced individuals, the focus is maintained on uplifting those who continue to face social and economic disadvantages.
  4. Supreme Court Guidelines: The Supreme Court of India has provided guidelines on the creamy layer concept through various judgments. These guidelines help in determining the criteria for identifying individuals who should be excluded from the reservation benefits.

It’s important to note that the implementation of the creamy layer concept can vary and may be subject to amendments and changes in government policies. The primary goal is to strike a balance between providing affirmative action to those genuinely in need and avoiding the concentration of benefits among the economically well-off individuals within the reserved categories.

One of the key cases that has shaped the understanding and implementation of the creamy layer concept is the Indra Sawhney & Ors. v. Union of India (1992) case, commonly known as the Mandal Commission case. In this case, the Supreme Court upheld the implementation of reservations for Other Backward Classes (OBCs) but introduced the concept of the creamy layer to prevent the benefits from reaching the relatively affluent individuals within the OBCs.

The Supreme Court has reiterated and clarified its stance on the creamy layer in subsequent cases. Some important cases include:

  • Ashoka Kumar Thakur v. Union of India (2008): This case revisited aspects of the Mandal Commission case and reaffirmed the importance of the creamy layer concept in ensuring that benefits of reservations are directed towards those who are socially and economically disadvantaged.
  • M. Nagaraj v. Union of India (2006): The Supreme Court, in this case, addressed issues related to reservations in promotions for SCs and STs and reiterated the need to apply the creamy layer concept to prevent the accumulation of benefits among the economically advanced individuals within these communities.


It was important to remember that equal opportunities guaranteed in clause (1) shall apply to every individual citizen of the country whereas in clause (4) special arrangements for socially disadvantaged classes are made. Both must be mutually compatible. This should not be allowed either for the other to overshadow. Therefore it was considered that, as the unit and not as the whole force of the framework, service or unit should be taken as the purpose of applying the rule of 50 percent per year, maybe. Under the spirit of Article 16, the carry-forward system was fully consistent with (4) and if it was not followed the forward rule backwardness would be committed and would eventually lead to a closed space.

So, if any reservations go beyond 50% then it would be invalid, or the carry-forward rule would become invalid. Since Article 16(4) forms part of the constitution, an unreasonable reservation could not be allowed to the State to undermine the laws set out in Article 16(1) of the Constitution. Regarding what a reasonable restriction would be within its acceptable limits, it must rely on the facts and conditions in each case, and no the stringent and fast rule could be defined and that matter could not be constrained to a math equation to be adhered to in any case.

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