Article 16 (Equality of Opportunity in public employment) of Indian Constitution

In this article we made a details and comprehensive study about the provisions of Article 16 of the Indian Constitution which about the Equality of Opportunity in the matters of Public Employment and important landmark judgement of the SC in regard to public employment

 

1. Introduction

 

The Constitution of India, adopted on January 26, 1950, is a living document that lays down the framework for the governance of the world's largest democracy. One of its fundamental principles is the guarantee of equality to all citizens. Article 16, a crucial provision within the Constitution, specifically deals with the principles of equality and non-discrimination in matters of public employment. This article aims to ensure fair treatment and opportunities for all citizens in government jobs, irrespective of their background.

 

2. Understanding Article 16 of the Constitution of India

 

Article 16 of the Indian Constitution states as follows: -

 

16. Equality of opportunity in matters of public employment.

 

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

 

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

 

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

 

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

 

(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. 

 

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

 

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

 

2.1. Equality of Opportunity - State may lay down Qualifications or Conditions Article 16(1)

 

Article 16 does not prevent the State from prescribing the requisite qualification and the selection procedure for recruitment or appointment. It is further open to the appointing authority to lay down such pre-requisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst government servants. The qualifications prescribed may therefore/besides mental excellence, include physical fitness, sense of discipline, moral integrity, loyalty to the State. State of Mysore Vs. Narasinga Rao, AIR 1968 SC 349. However, the qualifications of the selective test must not be arbitrary.

 

Matters Relating to Employment or Appointment:

 

The words “matters relating to employment or appointment” explain that Article 16(1) tile is hot restricted to the initial matters, but applies to matters both prior and subsequent to the employment. State of M.P. Vs. Ramashankar Raghuvanshi, AIR 1983 SC 374, which are incidental to the employment and form part of the terms and conditions of employment. Article 16(1), therefore, would have application in the matters relating to initial appointments, subsequent promotions, termination of services, salary, periodical increments, grant of additional increment, fixation of seniority, leave gratuity, pension, age of superannuation etc. The principle of equal pay for equal work, has also been interpreted to be the constitutional goal of Article 16(1) Randhir Singh Vs. Union of India, AIR 1982 SC 130.

 

Equality of Opportunity - Process of Selection

 

The recruitment rules often provide that before appointment is made to a post, should be suitably published. If the rule so requires then an appointment made to the post without publicity would be invalid and devoid of Fair play. B.S. Minhas Vs Indian statistical institute, AIR 1984 SC 383. Advertisement of posts and conditions of service is done in order to provide opportunity to everyone eligible for the post. If also enables the selection committee to have a larger told to choose from. However, the rule of advertising or publishing the vacancies cannot apply to each and every post. In some situations, e.g., case of high constitutional post there is no provision for publicity.

 

2.2. No Discrimination on the Ground of Religion, Race, etc. (Article 19(2)

 

Clause (2) of Article 16 declares:

 

“No citizen shall, on grounds only of religion, race. Caste, sex, descent, place of birth, residence or any of them, be eligible for, or discriminated against in respect of any employment or office under the state”.

 

The expression “discriminated against” Article 10(2) bears the same meaning as in Article 15 and signifies differentiation with bias against a particular class or individual. Therefore, if the differentiation and bias are based on any of the grounds mentioned in Article 16(2), the impugned law or State action becomes ipso facto repugnant to the Constitution. Kathi Raning Rawat Va. State of Saurashtra, AIR 1952 SC 123.

 

The emphasis in Article 16(2) on the word “only” and where there is discrimination only on any of the ground mentioned therein this Clause will come into play. But, where discrimination is based partly on the grounds contained in Article 16(2), and partly on other consideration, there will be no contravention of the Clause. Also, where discrimination is based on grounds other than those mentioned in Clause (2) it would not attract this Clause but the case will have to be weighed & judged in the light of the general principle laid down in Clause (1) of Article 16 For example, if discrimination is made on the ground of backwardness, Clause (2) will not be attracted. State of Kerala Vs. N.M. Thomas, AIR 1976 SC 430.

 

In Gazula Dasaratha Rama Rao Vs. State of Andhra Pradesh, AIR 1961 SC 564, the Supreme Court struck down section 6(1) of the Madras hereditary Village Offices Act, 1895 which had required the Collector to appoint Village Munsifs from amongst descendants of the last holders of the offices. “Descent” being a forbidden ground of classification, the application of the hereditary principle of succession to an office, the Court held, violated Article 16(2).

 

In C.B. Muthamma Vs, Union of India AIR 1979 SC 1868, the Supreme Court held Rule 8(1) of Indian Foreman Service (Conduct and Discipline) Rules, 1961 and Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre seniority and Promotions) Rules, 1961, as discriminatory against women. Rule 8(1) provided that a woman member of the service would obtain permission of the Government in writing before her marriage was solemnised and could be required to resign from service after her marriage if the Government was satisfied that her family and domestic commitments were likely to come in the way of the due and efficient discharge of her duties as a member of the service. Rule 18(4) stood in her way to promotion to Grade I of the service. The Court however, laid down:

 

We do not mean to universalise or dogmatise that men and women and equal in all occupations and all situations and do not exclude the need to pragmatize where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex-may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern.

 

If follows that women may be barred from employment in a particular employment if the discrimination is based not solely on the ground of sex but on account of their nonsuitability.

 

2.3. Requirement as to Residence in a State (Article 16(3))

 

It may be noted that it is Parliament and not the Legislature of a State, which can make any law under Clause (3) at Article 16

 

Since, Clause (3) constitutes an exception to Article 16(1) and (2), has to be construed strictly. Therefore, the requirement of residence within the State or Union Territory must be confined to what it states.

 

In the exercise of the power conferred by Clause (3) of Article 16, Parliament enacted the Public Employment (Requirement as to residence) Act, 1957. The Act repealed, all the laws in force, prescribing any requirement and will a State or Union Territory, for employment or appointment in the State or Union Territory. However, exception was made in the case of Himachal Pradesh, Manipur, Tripura and Telangana (the area transformed to the State of Andhra Pradesh from the erstwhile State of Hyderabad). This exception was made keeping in a view the backwardness of these area, I was to expire on March 21, 1974.

 

In Narasimha Rao Vs. State of Andhra Pradesh AIR 1970 SC 422, the Supreme Court struck down Section 3 of the Public Employment (Requirement as to Residence), Act, 1957, which related to Telangana part of Andhra Pradesh. The Court held this Section ultra vires the Parliament and hence unconstitutional.

 

The Court said that Clause (3) of Article 16 empowered Parliament to impose residential qualification for services in the whole State, but not in a part of the State. Clause (3) of Article 16, the Court explained, use the word “State” which signified “State” as a unit and not parts of a State a districts or other units of a State. Therefore, Parliamentary law could provide for residence in the whole of Andhra Pradesh and not in Telangana, which was a part of the State.

 

2.4. Article 16(4) is not an Exception to Article 16(1)

 

Article 16(4) is an enabling provision, it confers a discretionary power on the State to make reservation of appointments in favour of backward classes of citizens not adequately represented in the services of the State either numerically, or qualitatively. It confers no right on citizens to claim reservation. Article 16(4) has been held not mandatory.

 

In Indra Sawhney Vs. Union of Indian AIR 1993 SC 477, the Supreme Court, by majority of 6 to 3 has ruled that Clause (4) of Article 16 is not an exception to Clause (1) of Article 16 it has been held as an instance of classification implicit in and permitted by Clause (1).

 

2.5. Exclusion of 50% Ceiling w.r.t. Carry Forward Reserved Vacancies [Article 16(48)]

 

In Indra Sawhney Vs. Union of India, AIR 1993 SC 447, the majority had ruled that operation of carry forward rule should not result in breach of 50% rule. This rule would no more be followed after the enactment of the Constitution (Eighty-first Amendment) Act, 2000, which his added the following Clause (4B) to Article 16:

 

4(B) Nothing in this Article shall prevent the State from considering my unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) of clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacances of the year in which they are being filled up for determining the celling of fifty per cent reservation on total number of vacancies of that year. This new Clause 4(B) enables the State to carry forward the unfilled reserve vacancies to be filled in any succeeding years so as to remove the backlog notwithstanding the rule of 50% ceiling.

 

3. Quantum of Reservation

 

State of Madras Vs. Champakam Dorairajan AIR 1951 SC 225

 

In this case Madras Govt fixed proportion of students of each community to be admitted in state medical colleges on the basis of race, religion and caste. It was charged as violative of Article 15. The State in defence argued that Art 46 of DPSP requires that state should promote educational & economic interest of weaker section. The Supreme Court held that DPSP have to confirm and run subsidiary to Fundamental Rights.

 

Insertion of clause (4):

 

Art. 15 as originally enacted did not contain Art. 15(4). It was inserted by the Constitution First Amendment Act, 1951 as result of the decision in the case of State of Madras Vs. Champakan Dorairajan AIR. 1954 SC 226., setting aside reservation of seats in educational institutions on the basis of caste and community. The object of the First Amendment was to bring Arts 15 and 29 in line with Art. 16(4). After the introduction of Art 15(4), reservation of seats in educational institutions lies been upheld in the case of M. R. Balaji Ve State of Mysore AIR 1963, SC. 649, and a number of other cases. Under Article 15(4) orders reserving seats for Scheduled Castes, Scheduled Tribes and Backward Classes in Engineering, Medical and other Technical Colleges, have been upheld. Under Art. 15(4), therefore, reservations are permissible for the advancement of any backward class of citizens or of Scheduled Castes of Scheduled Tribes.

 

Balaji Vs. State of Mysore, Al 1963 049.

 

In this case, Mysore Government issued an order, where reservation was provided like this Backward Class 28%, More Backward Class 20% SC/ST. 18% and other reservations. Total 68% seats were reserved in Engineering and Medical and other technical institutions. The Supreme Court held that the reservation contemplated by Article 15(4) and 16(4) must be within reasonable limits. Generally speaking, it should be less than 50%. The court said that this Article 15(4) provides that state can make special provision (not exclusive provision). Reservation of 68% is gravely Against Art 16(4). The Court Said that the state would not be justified in ignoring altogether advancement of the rest of the society in its zeal to promote the welfare of Backward classes. National interest would suffer if qualified and competent students were excluded from admission into institution of higher education.

 

Devadasan Vs. Union of India, AIR 1964 SC 179.

 

In this case, Government reserved 17.5% in central services but provided for carrying forward of unfiled seats for next years. In instant case, it happened that by virtue of this provision 29 out of 45 seats were reserved. The court by following Balaji's ruling invalidated the carry forward rule as it exceeded 50%.

 

State of Kerala Vs. N.M. Thomas AIR 1976 SC 490.

 

Because of exemption given to SC and ST for passing departmental test for number of years for promotion to LDC to UDC. In one year, 34 out of 54 posts were reserved for them, so it exceeded 50%, The Court upheld this provision and held

1. Articles 15(4) and 16(4) are not exceptions but they are emphatic assertions & directions to take affirmative action.
2. It confers discretionary power to make reservations, but not mandatory.
3. It upheld, carry forward rule and accepted the reasoning, considering the SC, ST population and their representation in the state services was much below and they said that to bring equality, state could make reservations upto any extent.

 

Akhil Bharatiya Shoshit Karmachari Sangh V. Union of India. AIR 1981 SC 298

 

Supreme court held that the question of reservation has to be seen in the content of overall representation of SC ST and not in reference to particular year.

 

Indra Sawhney vs. Union of India (Mandal Commission case), AIR 1993 SC 477

 

The court examined the scope and extent of Article 16(4) in detail and classified various aspect on which there were differences of opinion in various earlier judgement. The court provided following guidelines to be applied in case of reservation:

 

1. Backward class of citizen in Article 16(4) can be identified on the basis of caste and not only on economic basis but caste alone cannot be the basis for consideration.
2. Article 16(4) is not an exception to Article 16(1). It is an instance of classification. Reservation can be made under Article 16(1).
3. Backward classes in Article 16(4) are not similar to as socially and educationally backward in Article 15(4).
4. Creamy layer must be excluded from backward classes.
5. Article 16(4) permits classification of backward classes into backward and more backward classes.
6. A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.
7. Reservation shall not exceed 50 percent.
8. Reservation can be made by ‘executive order’.
9. No reservation in promotion.
10. Permanent statutory body to examination complains of over-inclusion/under-inclusion.
11. Disputes regarding new criteria can be raised only in the Supreme Court.

 

4.1. Position after Indra Sawhney case

 

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

 

4.2. The Constitution 77^th Amendment Act,1995. –

 

This amendment has added a new Clause (4-A) to Article 16 of the Constitution which provides that,

 

“Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services of the State in favour of the Schedules Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the service under the State.”

 

5. Conclusion

 

Article 16 of the Indian Constitution stands as a testament to the nation's commitment to upholding the principles of equality and social justice in public employment. It reflects the delicate equilibrium between providing opportunities to marginalized sections of society while maintaining the integrity and effectiveness of administrative bodies. As India progresses, the article's interpretations will continue to evolve, navigating the complex terrain of affirmative action, meritocracy, and inclusive growth. In this journey, the core intent of Article 16 - to ensure equal access to opportunities - will remain a guiding light, illuminating the path towards a more equitable and just society. 

 

FAQ (Frequently Asked Question)

 

What is the distinction between Article 15 and Article 16?

 

Ans: Article 16 is applicable only in case of employment or appointment to an office under the State. The offices of the Governor of a state, the Judges of the Supreme Court and the High Courts are independent constitutional offices to which the provisions of Article 16 read with Article 14 have no application. Likewise, the posts of the Attorney General of India and the Advocate General of a State are independent constitutional posts and therefore, the provisions of Articles 16 and 14 have no application to these offices. Hargovind Vs. Raghukul Tilak, AIR 1979 SC 1109.

 

Article 16 is similar to Article 15 in one respect i.e., both these provisions prohibit discrimination against citizens on specified grounds. However, Article 15 is wider in operation than Article 16. While Article 16 prohibits discrimination only to respect to one particular matter i.e., relating to employment or appointment to posts under the State. Article 15 lays down a general rule and prohibits discrimination in respect to all or any matters in one respect. Article 16 is wider than Article 15, i.e., the grounds on the basis of which discriminations prohibited. While, Article 15 prohibits discrimination on any of the five grounds, ie, religion, race, caste, sex descent place of birth or residence. Article 15 does not contain “descent” and “residence” as the prohibited grounds of discrimination. However, both these Articles can be invoked by citizens only