Beruflich Dokumente
Kultur Dokumente
OF SERVICE LAW
TOPIC - ARTICLE 16
Submitted to:-
Compiled by:-
SUPREET MAM
Jasdeep Heer
B.A. LL.B. 8th Semester
Roll No. 200/11
UILS, Panjab University
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Contents
Contents.....................................................................................................................................................2
Table of Cases...3
Article 16 of The Constitution of India says:-.......................................................................5
Nature and Scope.6
[Article 16(1)]................................................................................................................ 7
Equality of Opportunity-State may lay down Qualification or conditions...............................7
Members of Separate and Independent Classes of Service...................................................8
Correction of Date of Birth............................................................................................ 8
Cut-off Date for Eligibility............................................................................................ 8
Equality of Opportunity-Process of Selection....................................................................9
Written Test vis--vis Viva Voce Test...............................................................................9
Annual Confidential Report-Communication of Entries....................................................10
Filling up the Posts Over and Above Those Advertised......................................................10
Regularisation of Ad Hoc Employees.............................................................................10
Absorption of Eligible persons..................................................................................... 11
Compassionate Appointment/Die-in-harness Scheme........................................................12
ARTICLE 16(2)........................................................................................................... 12
No Discrimination on the Ground of Religion, Race, Etc...................................................12
Article 16(3)................................................................................................................ 13
Requirement as to Residence in a State..........................................................................13
ARTICLE 16(4)........................................................................................................... 14
Scope of Article 16(4)................................................................................................. 14
Reservation in Promotion [Article 16(4A)]....................................................17
ARTICLE [16(4B)]................................................................................................ 18
ARTICLE 16(5)........................................................................................................... 18
EQUAL PAY FOR EQUAL WORK.........................................................................19
BIBLIOGRAPHY
20
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TABLE OF CASES
1. A. Rajendran v. Union of India, AIR 1968 SC 507 : (1968) 1 SCR 721.
2. A.P.B.C.S. v. J.S.V. Federation, AIR 2006 SC 2814.
3. All India Station Masters and Assistant Station Masters Association Delhi v. Gen. Man.
Central Railway, AIR 1960 SC 384 : (1960) 2 SCR 311
4. All India Station Masters Association v. General Manager, Central Railway AIR 1960 SC
384.
5. Asha D. Bhatt v. Director of Primary Education, AIR 2003 Guj. 197.
6. Ashok Kumar Sonkar v. Union of India, AIR 2007 SC 1746.
7. Ashwani Kumar v. State of Bihar, AIR 1997 SC 1628.
8. Chitralekha v. State of Mysore, AIR 1964 SC 1823.
9. Dev Dutt v. Union of India AIR 2008 SC 2513.
10. Devi v. State of Maharashtra, 1986(1) SCR 743.
11. Diptimayee Parida v. State of Orissa AIR 2009 SC 935.
12. Government of A.P. v. K. Brahmanandum, AIR 2008 SC 3170.
13. Indian Drugs and Pharmaceuticals v. Workmen, (2007) 1 SCC 408.
14. Indra Sawhney v. Union of India AIR 1993 SC 477.
15. Jagannath Prasad Sharma v. State of Uttar Pradesh, AIR 1961 SC 1245.
16. K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495.
17. Kshetriya Kisan Gramin Bank v. D.B. Sharma, AIR 2001 SC 168.
18. Lila Dhar v. State of Rajasthan AIR 1981 SC 1777.
19. M. Nagaraj vs. Union of India (2006) 8 SCC 212.
20. M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
21. M/s Eastern Coalfields Ltd. V. Anil Badyakar AIR 2009 SC 2534.
22. Mukul Saikia v. State of Assam AIR 2009 SC 747.
23. Narasimha Rao v. State of Andhra Pradesh AIR 1970 SC 422.
24. National Hydroelectric Power Corpn. V. Nanak Chand AIR 2005 SC 106.
25. P. Mohanan Pillai v. State of Kaerla, AIR 2007 SC 2840
26. Pandurangarao v. Andhra Pradesh Public Service Commission AIR 1963 SC 268.
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27. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 :
(2002) 3 SCR 100.
28. Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319.
29. Rajasthan P.S.C. v. K.K. Paliwal, AIR 2007 SC 1746.
30. Randhir Singh v. Union of India AIR 1982 SC 879.
31. S.P. Bhattacherjee v. S.D. Majumdar, AIR 2007 SC 2012
32. S.P. Gupta v. State of J & K, 2004 (5) SCALE 90.
33. State of Karnataka v. Umadevi, AIR 2006 SC 1806.
34. State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
35. State of M.P. v. J.S. Bansal, AIR 1998 SC 1015 : (1998) 3 SCC 714.
36. State of Mysore v. Narasinga Rao, AIR 1968 SC 349.
37. State of Orissa v. Rajkishore Nanda, AIR 2010 SC 2100.
38. State of U.P. v. Ram Adhar AIR 2008 SC 3243.
39. State Of West Bengal & Anr. vs West Bengal Minimum Wages Civil Appeal No. 3855 of
2007.
40. State Pvt. Colleges Stop-Gap Lecturers Association v. State of Karnataka, (1992) 2 SCC
29.
41. Suraj Bhan Meena & Anr. v. State Of Rajasthan SLP No. 6385 OF 2010.
42. T. Devadasan v. Union of India AIR 1964 SC 179.
43. T. Devadasan v. Union of India, AIR 1964 SC 179.
44. T. Devadsam v. Union of India, AIR 1964 SC 179 : (1964) 4 SCR 680
45. Triloknath v. State of J & K, 1969 1 SCR 103 : AIR 1969 SC 1.
46. Union of India v. Harnam Singh AIR 1993 SC 1367.
47. Union of India v. Parul Debnath AIR 2009 SC 2809.
48. Union of India v. Vinod kumar, AIR 2008 SC 5.
49. UPSC v. Girish Jayantilal Vaghela, (2006) 2 SCC 482.
50. Venkataramana v. State of Madras, AIR 1951 SC 229 : 1951 SCJ 318.
51. Yogesh Kumar v. Government of NTC, Delhi, AIR 2003 SC 1241.
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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 1[ 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.
2
[4A) Nothing in this article shall prevent the State from making any provision for reservation
in matters of promotion 3[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.]
4
[(4B) Nothing in this Article shall prevent the State form considering any unfilled vacancies
of a year which are reserved for being filled up in that year in accordance with any provisions
for reservation made under Clause (4) or (4A0 as a separate class of vacancies shall not be
considered together with the vacancies of the year in which they are filled up for determining the
ceiling of fifty per cent reservation on total number of this year.]
1 The italicized words were substituted by the Constitution (Seventh Amendment) Act, 1956, s. 29
2 Clause (4A) inserted by the Constitution (77th Amendment) Act, 1995, s.2
3 Inserted in Clause (4-A) by Constitution (85th Amendment) Act 2001, s.2 (w.e.f. June 17, 1995)
4 Clause (4B) inserted by the Constitution (Eighty-First Amendment) Act, 2000, s.2
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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.
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[Article 16(1)]
Equality of Opportunity-State may lay down Qualification or
conditions
Article 16 does not prevent the State from prescribing the requisite qualifications 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. 12 The qualifications prescribed
may, therefore, besides mental excellence, include physical fitness, sense of discipline, moral
integrity, and loyalty to the State.13
However, the qualifications or the selective test must not be arbitrary. These must be
based on reasonable ground and must have nexus with the efficient performance of the duties of
the particular office or post. In Pandurangarao v. Andhra Pradesh Public Service
Commission14 the Rule relating to qualifications for the appointment to the posts of District
Munsiffs, by direct recruitment prescribed that the applicant must have been practicing as an
Advocate in the High Court and he must have been actually practicing in the courts of Civil or
Criminal jurisdiction in India for a period not less than three years. The object was that the
persons to be appointed to the posts of District Munsiffs must be having knowledge of local laws
as well as knowledge of the regional language and adequate experience at the bar. The
application of the petitioner, qualified in all other respects except that he was not at that time,
practicing as an Advocate in the Andhra Pradesh High Court but in Mysore High Court, was
rejected. The Supreme Court held that the Rule which required that only a lawyer practicing in
10 Venkataramana v. State odf Madras, AIR 1951 SC 229 : 1951 SCJ 318 .
11 Triloknath v. State of J & K, 1969 1 SCR 103 : AIR 1969 SC 1.
12 Union of India v. Vinod kumar, AIR 2008 SC 5.
13 State of Mysore v. Narasinga Rao, AIR 1968 SC 349.
14 AIR 1963 SC 268.
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the Andhra Pradesh High Court, had introduced a classification between one class of Advocates
and the rest and the said classification was irrational inasmuch as there was no nexus between the
basis of the said classification and the object intended to be achieved by the relevant Rule. The
rule was struck down as unconstitutional and ultra vires.
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others waiting for years, below him for their respective promotion got affected in the process and
some might suffer irreparable injury.
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public contracts are not largesse.21 In Lila Dhar v. State of Rajasthan,22 pointed out that the
object of any process of selection for entry into public service was to secure the best and the
most suitable person for the job, avoiding patronage and favouritism.
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It is trite that the State cannot make appointment to the posts over and above than the number of
posts advertised.26 In Mukul Saikia v. State of Assam,27 the Assam Public Service Commission
(APSC) advertised 27 posts of Child Development Project Officers (CDPOs). Pursuant to it a
selection process was held. The final select list prepared and published by Commission contained
the names of 64 candidates far in excess of the notified vacancies. The Apex Court, referring to
their earlier pronouncements,28 held that appointment could be made only to 27 posts and the
selection list got exhausted when all the 27 posts were filled.
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In Union of India v. Parul Debnath,35 the Supreme Court distinguished between absorption of
eligible persons from regularisation of ad hoc employees. In this case, the respondent claimants
were appointed under the Andaman and Nicobar Islands H.G. Regulations, as members of the
Home Guard Organisation for three years. Since then they were continuously made to perform
duties of a regular nature. They were also deployed to work under the operational control and
supervision of the Police and the overall control of the administration without any break. They
had been working for periods ranging from 12 to 23 years. The High Court directed the appellant
to frame a scheme for the absorption of the respondents in the regular establishment of the
Andaman and Nicobar Islands, in one go and not in phases. Upholding the directions of the High
Court, the SC ruled that absorption of the respondents did not amount to new appointments and
that there would not arise any question of reservation of vacancies. The scheme was framed by
the authorities which provided for reservation of 20% of the vacant posts to accommodate the
respondents in a phased manner, while setting apart 80% of vacancies for other candidates. The
scheme framed was set aside by the Apex Court as it was held to be arbitrary and discriminatory.
The Scheme would have created a class within a class.
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1981. There being dispute between his wife and his daughter as to who was the heir of the
deceased, it took almost 12 years when all heirs of the deceased submitted No objection in
favour of the respondent, who was then appointed on compassionate ground. The appointment,
however, was cancelled, being made after 12 years of the death of the employee.
ARTICLE 16(2)
No Discrimination on the Ground of Religion, Race, Etc.
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 ineligible for, or discriminated
against in respect of, any employment or office under the State". The expression "discriminated
against" in Article 16(2) bears the same meaning as in Article 15 and signifies differentiation
with a 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.
In C.B. Muthamma v. Union of India,38 the Supreme Court held Rule 8(1) of
Indian Foreign Service (Conduct and Discipline) Rules, 1961 and R 18(4) of the Indian
Foreign Service (Recruitment, Cadre Seniority a, Promotions) Rules, 1961, as discriminatory
against women. Rule 8(1) provided that a woman member of the service would obtain
permission of Government, in writing, before her marriage was solemnised 39 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. But women may be barred from
employment in a particular employment if the discrimination is based not solely on the ground
of sex on account of their non-suitability.
ARTICLE 16(3)
38 AIR
1979 SC 1868.
39
See also Maya Devi v. State of Maharashtra, 1986(1) SCR 743, wherein requirement that a married woman
should obtain her husbands consent applying for public employment was held invalid as unconstitutional.
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ARTICLE 16(4)
Clause (4) of Article 16 expressly permits the State to make "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''.
1970 SC 422.
41 AIR
1964 SC 179.
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to the people to ventilate their views in a public debate on the practical impact of
the policy of reservation.
With a view to settle the law, in an authoritative way, a special Bench of nine Judges of the
Supreme Court, was, for the first time, constituted in Indra Sawhney v. Union of India,43
which is popularly known as Mandal Commission case. The issue was thoroughly examined
by the Court in its historical prospective. The majority opinion on various aspects of
reservations may be summarised as follows:
(1)Clause (4) of Article 16 is not an exception to Article 16(1). It is an instance of
42
43
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45T. Devadasan
46
1964
Thomas, AIR
SC 179.
1976
SC 490.
47The
on this judgment, the Gujarat High Court in Asha D. Bhatt v. Director of Primary Education, AIR 2003
Guj. 197, held reservation to the extent of 2% for economically backward classes as contrary to Article 15.
49See
50M.R.
51See
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section of the backward class, the creamy layer should be excluded in that class, from
claiming the benefit.
The Court, therefore, directed the Government of India to specify the basis of exclusion
whether on the basis of income, extent of holding or otherwiseof creamy layer.
(7) The reservation contemplated in Clause (4) of Article 16 should not exceed 50%
However; in extraordinary situation this percentage may be exceeded. But, every
excess over 50% will have to be justified on valid grounds. Reserved category
candidates getting selected in open competition on the basis of their merit, should not
be counted against the quota reserved for them.52
(8) For the purpose of applying the rule of 50%, a year should be taken as the unit and not
the entire strength of the cadre, service or the unit, as the case may be.
(9) The carry forward of unfilled reserved vacancies is not per se unconstitutional.
However, the operation of carry forward rule
It should not result in breach of 50% rule.53 The Court has overruled Devadasan54
(10)
wherein the carry forward rule was struck down on the ground that its application
resulted in reservation of more than 50% vacancies in favour of the backward classes
of citizens.
(11)
Reservation for backward classes should not be made in services and position
rationale behind imposing an upper ceiling of 50% enabled by Article 15(4) and 16(4) cannot be readily
extended to the domain of political representation at the Panchayat level in Scheduled Areas. See Union of India v.
Rakesh Kumar, AIR 2010 SC 3244. See also M. Sreedevi v. Union of Medical Sciences, A.P., JT 2000(8) SC 314.
Such candidates are required to pay coaching fee at subsidised rate like other reserved candidates and not full fee
required from general category candidates. See State of Rajasthan v. Jyoti Bala, AIR 2004 NOC 361 (Raj.).
53After
the incorporation of Clause (4B) in Article 16 by the Constitution (81st Amendment) Act, 2000, this
observation would not stand in the way of the State to reserve posts in excess of 50% in respect to carry forward
vacancies.
54
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SC 448.
In Indra Sawhney v. Union of India,56 (the Mandal Commission case), after taking into
consideration all the circumstances, said that Article 16(4) did not contemplate or permit
reservation in promotions, though the expression "appointment" in Article 16(4), included
appointment by direct recruitment or by promotion or by transfer. The above rule laid down by
the Supreme Court has been modified as regards the members belonging to the Scheduled
Castes and the Scheduled Tribes, by the Constitution (Seventy-seventh Amendment) Act,
1995, which has added a new Clause (4A) to Article 16 which provides :
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 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.
Constitution Bench of this Court in M. Nagaraj vs. Union of India,57 observed:
State will have to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency before making
provision for reservation. The State is not bound to make reservation for SC/ST in matter of
promotions. However if they wish to exercise their discretion and make such provision, the State
has to collect quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance of Article 335. It is
made clear that even if the State has compelling reasons, as stated above, the State will have to
see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit
of 50% or obliterate the creamy layer or extend the reservation indefinitely.
ARTICLE [16(4B)]
----------------------------------------------------------------------------------------------------------------------------------------56
Ibid 43. The Court overruled the law laid down over 30 years back in G.M., Southern Railway v. Rangachari,
AIR 1962 SC 36., holding reservation in promotion permissible under Article 16(4). See also Union of India v.
Virpal Singh Chauhan, AIR 1996 SC 448. Later, the majority of the Supreme Court in State of Bihar v. Bal Mukund
Sah, AIR 2000 SC 1296, held that even if under Article 16(4), the State proposed to provide reservation on the
ground of inadequate representation of certain Backward Classes in Services, if it was considered by the
appropriate authority that such reservation would adversely affect the efficiency of the administration, then exercise
under Article 16(4) would not be permissible. See also Indra Sawhney v. Union of India, AIR 2000 SC 498.
57 (2006) 8 SCC 212.
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The enactment of the Constitution (Eighty-first Amendment) Act, 2000, which has added the
following Clause (4B) to Article 16:
(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.
In Suraj Bhan Meena & Anr. v. State Of Rajasthan, 58 applying the width test and identity test,
the Constitution Bench held that firstly it is the width of the power under the impugned
amendments introducing amended Articles 16(4-A) and 16(4-B) that had to be tested.
ARTICLE 16(5)
It states that:
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.
Clause (5) of Article 16 is the third exception to the general rule of equality of opportunity
contained in Article 16(1). Clause (2) prohibits discrimination in the matters of employment
under the State, on the ground of "religion". Clause (5) of Article 16, thus, permits that an office
in connection with the affairs of Hindu religion or Hindu religious denomination can be held
only by a Hindu, if it is so provided in the document relating to it. Likewise, any office under a
Muslim institution may be required to be held only by a Muslim. This exception may be read
with the fundamental right to freedom of religion contained in Articles 25 to 28 and the right of
the minorities under Articles 29 and 30.59
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BIBLIOGRAPHY
1. Prof. Kumar, Narendra, Constitutional law of India, 7th Edition, Allahabad law
agency.
2. Prof. Kumar, Narendra. Law relating to Government Servants and Management of
Disciplinary Proceedings. 3rd Edition. Faridabad: Allahabad law agency. 2011
60 AIR
1982 SC 879.
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WEBLIOGRAPHY
3.
4.
5.
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8.
www.lawlink.com
www.manupatra.com
www.indiankanoon.org
www.judis.nic.in
www.manupatra.com
www.supremecourtofindia.nic.in
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