DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY VISAKHAPATNAM, A.P., INDIA

SUBJECT
CONSTITUTION

FACULTY
PROF. A NAGESHWARA RAO SIR

PROJECT TITLE
ARTICLE16

NAME OF THE STUDENT: R.SOWMYA

SEMESTER: III
ROLL NO: 2018LLB119

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ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
writing of this project. My deepest thanks to my Constitutional Law Lecturer, A.Nageshwara
Rao Sir , the Guide of the project for guiding me and correcting various documents of mine
with attention and care. He has taken pain to go through the project and make necessary
corrections as and when needed. I would also thank my faculty members without whom this
project would have been a distant reality. I also extend my heartfelt thanks to my family and
well-wishers.

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 TABLE OF CONTENTS

1.INTRODUCTION------------------------------------------------------------------------------

2.EQUALITY OF OPPURTUNITY IN MATTERS OF PUBLIC EMPLOYMENT

ARTICLE16-------------------------------------------------------------------------------------------------

3. ARTICLE16 v. ARTICLE15---------------------------------------------------------------------------

4.EQUALITY OF OPPURTUNITY-STATE MAY LAYDOWN QUALIFICATIONS OR

CONDITIONS [ARTICLE16(1)

MEMBERS OF SEPARATE & INDEPENDENT CLASSES OF SERVICES

CUTOFF DATE FOR ELIGIBILITY

WRITTEN TEST vis-a-vis VIVA VOICE TEST

REGULARISATION OF AD HOC EMPLOYEES

5. NO DISCRIMINATION ON THE GROUNDS OF RELIGION, RACE,Etc[ARTCLE16(2)-

6. SENIORITY----------------------------------------------------------------------------------------------

7. DECENT & RESIDENCE------------------------------------------------------------------------------

8. PENSION&GRATUITY-------------------------------------------------------------------------------

9. REQUIREMENT AS TO RESIDENCE IN A STATE[ARTICLE16(3)]-----------------------

10.INTERVIEW-------------------------------------------------------------------------------------------

11. RESIGNATION---------------------------------------------------------------------------------------

12. RESERVATION OF POSTS FOR BACKWARD CLASSES[ARTICLE16(4)]-------------

ARTICLE 16(4) IS NOT AN EXCEPTION TO ARTICLE 16(1)------------------------------

SCOPE OF ARTICLE 16(4)

JUSTICE RAM NANDAN COMMITTEE-CREAMY LAYER

ARTICLE 16(4) & ARTICLE 335

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 RESERVATION IN PROMOTION-SEVENTY-SEVENTH AMENDMENT,1995

[ARTICLE 16(4A)]--------------------------------------------------------------------------

EXCLUSION OF 50% CEILING w.r.t CARRY FORWARD RESERVED VACANCIES

[ARTCILE16(4B)]

RESERVATION IN PROMOTION : CATCH-UP RULE NEGATED-

85thAMENDMENT,2001

13. OFFICES UNDER A RELIGIOUS OR DENOMINATIONAL INSTITUTION

[ARTICLE16(5)]

14.EQUAL PAY FOR EQUAL WORK-------------------------------------------------------------

15.CONCLUSION---------------------------------------------------------------------------------------

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 INTRODUCTION

Part III of the Constitution of India, titled as “Fundamental Rights” (Articles 12 to 36), secures
to the people of India, certain basic, natural and inalienable rights. The inclusion of a chapter
on Fundamental Rights, in the Constitution, is in accord with the trend of modern democratic
thought. These rights are basic to a democratic polity. The guarantee of certain basic human
rights is an indispensable requirement of a free society.

RIGHT TO EQUALITY (Articles 14 to 18)

The first Fundamental Right secured to the people of India is the “Right to Equality”. It has the
following provisions:

1. Equality before Law or Equal Protection of Laws (Article 14)

2. Prohibition of Discrimination Against Citizens (Article 15)
3. Equality of Opportunity in Public Employment (Article 16)
4. Abolition of “Untouchability” (Article 17)
5. Abolition of Titles (Article 18)

EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT

(Article 16)

Another particular application of the general principal of equality or protection clause

enshrined in Article 14 is contained in Article 16. Clause (1) of Article 16 guarantees to all
citizens, equality of opportunity, matters relating to employment or appointment to any office
under the State. (2) further strengthens the guarantee contained in Clause (1) by declaring that
“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”. Clauses (3), (4) and (5) of Article 16 contain exceptions to the rule of
equality opportunity, embodied in Clauses (1) and (2).

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 ARTICLE 16 vs. ARTICLE 15

Article 16 is applicable only in case of employment or appointment to an official under the

State. Article 16 is similar to Article 15 in one respect, i.e., both these provisions prohibit
discrimination against citizens on specified grounds. However, Article is wider in operation
than Article 16. While, Article 16 prohibits discrimination only in 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 respect,
Article 16 is wider than Article 15, i.e., the grounds on the basis which discrimination is
prohibited. While, Article 15 prohibits discrimination on any of the five grounds, i.e., religion,
race, caste, sex or place birth, Article 16 contains seven prohibited grounds, i.e., religion, race,
caste, descent, place of birth or residence. Article 15 does not contain “descent” “residence” as
the prohibited grounds of discrimination. However, both Articles can be invoked by citizens
only.

EQUALITY OF OPPURTUNITY- SATE MAY LAY DOWN QUALIFICATIONS OR

CONDITIONS [Article 16(1)]

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. The qualifications
prescribed may, therefore, besides mental excellence, include physical fitness, sense of
discipline, moral integrity, and loyalty to the State.

However, the qualifications or the selective test must not be arbitrary. These be based on
reasonable ground and must have nexus with the efficient performance of the duties and
obligations of the particular office or post. Also, the qualifications cannot be altered and applied
with retrospective effect. In Pandurangarao v. Andhra Pradesh Public Service
Commission1, the rule relating to qualifications for the appointment to the posts of District
Munsiffs, by direct recruitment prescribed that “the applicant must have been practising as an
Advocate in the High Court and he must have been actually practising in the Courts of Civil or

1
AIR 1963 SC 268, 1963 1 SCR 707

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Criminal jurisdiction in India for a period less than three years.” The High Court in this context
meant Andhra Pradesh High Court. 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 High Court but in Mysore High Court, was rejected. The Supreme Court held that
the Rule which requires that only a lawyer practicing in 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, i.e., “knowledge of
local laws as well as regional language and adequate experience at the bar.’ The Rule was
struck down as unconstitutional and ultra vires.

MEMBERS OF SEPARATE AND INDEPENDENT CLASSES OF SERVICE

There can be no rule of equality between members of separate and independent classes of
services.

In All India Station Masters Association. v. General Manager, Central Railway2, a Rule
which provided for the promotion of Guards to the posts of Station Masters while ignoring the
Road-Side Station Masters, was held to be valid, since, the Guards and Roadside Station
Masters were recruited separately and trained separately and had separate avenues of
promotions. They, thus. formed two distinct and separate classes and for that reason there was
no scope for predicating equality or inequality of opportunity in the matters of promotion.

2
1960 AIR 384, 1960 SCR (2) 311

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EDUCATIONAL QUALIFICATIONS AS BASIS OF CLASSIFICATION

Educational qualifications can justifiably be made a basis of classification for purposes of

promotion to higher post.

In State of J, & K. v. T.N Khosa 3, the Supreme Court upheld the Jammu & Kashmir
Engineering (Gazetted Service) Recruitment Rules, 1970, where under only graduate Assistant
Engineers were eligible for promotion to the post of Assistant Executive Engineers.

Minimum qualifications fixed for a post are relevant not only for direct recruitment but also
for promotion and absorption. In Madhya Pradesh Electricity Board v. S.S. Modh4, the
respondent. who was working as Sub-Overseer in the Chambal Hydel Scheme, Gandhisagar,
was refused absorption as Assistant Engineer under the Board on the merger of Hydel Scheme
with the Board, since he did not possess the minimum educational qualifications, required for
being appointed as Assistant Engineer under the Board, though his colleagues possessing the
qualifications were so absorbed. The Supreme Court held the action of the Board as not
violative of Article 16(1).

MATTERS RELATING TO EMPLOYMENT OR APPOINTMENT

The words “matters relating to employment or appointment’ explain that Article 16(1) is not
restricted to the initial matters, but applies to matters both prior and subsequent to the
employment, 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 service, abolition of
posts,” salary, periodical increments, grant of additional increment, fixation of seniority, leave,
gratuity, pension, age of superannuation, compulsory retirement, etc. The expression
“appointment” is said to take in, direct recruitment, promotion or transfer. The principle of
equal pay for equal work has also been interpreted to be the constitutional goal of Article 16(1).

3
1974 AIR, 1 1974 SCR (1) 771
4
Madhya Pradesh Electricity Board v. S.S. Modh,1997

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CUT-OFF DATE FOR ELIGIBILITY

It is well settled, supported by several decisions of the Apex Court that the cut-off date by
reference to which the eligibility requirement must be satisfied by the candidate seeking a
public employment is:

(i) the date appointed by the relevant service rules;

(ii) if there be no cut-off date appointed by the rules, than such date as may be appointed
for the purpose, in the advertisement calling for applications; that

(iii) If there be no such date appointed then the eligibility criteria shall be applied, by
reference to the last date appointed, by which the applications have to be received by
the competent authority.

EQUALITY OF OPPURTUNITY- PROCESS OF SELECTION

Recruitment to public services should be held strictly in accordance with the terms of
advertisement and the recruitment rules. Deviation from the rules allows entry to ineligible
persons and deprives many others who could have competed for the post. It is ruled that public
contracts are not largesse. As regards the process of selection the Apex Court in Lila Dhar v.
State of Rajasthan5, 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.

WRITTEN TEST vis-à-vis VIVA VOICE TEST

Holding that it was not for the Court to lay down whether interview test should be held at all
or how many marks should be allowed for interview test, the Court in Lila Dhar v. State of
Rajasthan6, said that the marks must be minimal so as to avoid charges of arbitrariness, though
not necessarily always. The Court opined that rigid rules could not be laid down in these matters
and that the matter might more appropriately be left to the wisdom of the experts. As regards
the allocation of marks for viva voce vis-o-vis the marks for written examination, it has been

5
1981 AIR 1777, 1982 SCR (1) 320

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held that there cannot be any hard and fast rule of universal application. It would depend upon
the post and nature of duties to be performed.

Annual Confidential Report- Communication Of Entries

In Dev Dutt v. Union of 1ndia7, the Apex Court, holding that fairness and transparency in
public administration enquired that all entries whether, poor, fair, average, good or very good,
in the ACR, must be communicated, ruled that non-communication of even a single entry
which might have the effect of destroying the career of an officer, would be arbitrary and as
such violative of Article 16 read with Article 14.

Filling up Posts Over and Above Those Advertised

The practice of selecting and preparing large list as compared to vacancy position by the
Service Selection Board has been deprecated by the Supreme Court in various decisions.
Selection of more candidates than mentioned in the requisition has been held without
jurisdiction. It has held that appointment on additional posts would deprive candidates who
were not eligible for appointment to the posts on the last date for submission of application, of
the opportunity of being considered for appointment, on the additional posts. The Supreme
Court, in Madan Lal v. State of J. & K8., held that since the requisition in the present case
was to fill only 22 posts, and the Commission had selected 20 candidates, the appointments to
be effected out of the said test would be on 11 posts and not beyond 11 posts. However, mere
calling more number of candidates for interview than prescribed under the rules does not vitiate
the selection. Further that the Government is under no obligation to fill up all the posts for
which requisition and advertisement are given.

REGULARISATION OF AD HOC EMPLOYEES

The Supreme Court has deprecated the regularisation and absorption of persons working as
part-time employees or on ad hoc basis, as it had become a common method of allowing back
door entries. In State of U.P v. Ram Adhar9, the Apex Court ruled that a temporary employee
had no right to the post. There was no principle of law, the Supreme Court in State Of
Karnataka v. Umadevi 10said, that a person appointed in a temporary capacity had a right to

7
Dev Dutt v. Union of 1ndia,2008
8
1995 AIR 1088, 1995 SCC (3) 486
9
1968 AIR 714, 1968 SCR (2) 95
10
State Of Karnataka v. Umadevi,2006

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continue till regular selection. Long continuance of such employees on irregular basis, would
not entitle them, to claim equality with regularly recruited employees.

NO DISCRIMINATION ON THE GROUND OF RELIGION, RACE, Etc[Article 16(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 ineligible for, or discriminated against in
respect of, any employment or office under the State”. The expression

“discriminated against” the word “only” in Article 16(2) bear the same meanings as in Article

15. 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.

The expression “discriminated against” the word “only” in Article 16(2) bear the same
meanings as in Article 15. 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 Pandurangarao v.Andhra Pradesh Public Service
Commission, The Supreme Court held that the Rule which requires that only a lawyer
practicing in 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, i.e., “knowledge of local laws as well as regional language and adequate
experience at the bar.’ The Rule was struck down as unconstitutional and ultra vires. In Gazula
Dasaratha Rama Rao v. State of Andhra Pradesh11, the Supreme Court struck down Section
6(1) of the Madras Hereditary Village Offices Act, 1895 which had required the Collector to
appoint Village Munsiffs from amongst descendants of the last holders of the offices,
“Descent” being a forbidden ground of classification.

In C.B. Muthamma v. Union of India12, the Supreme Court held Rule 8(1) of Indian Foreign
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.

11
1961 AIR 564, 1961 SCR (2) 931
12
1979 AIR 1868, 1980 SCR (1) 668

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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.

In MadanMohanSharma V. StateofRajasthan13 the appellants challenged the

eligibility/qualification during selection process as violative of Article16 of the Constitution.
An advertisement was issued for appointment of the post of teacher Grade III of Secondary
Examination. The selection criteria was changed during selection process. The court held that
once an advertisement is issued the selection process should continue as per advertisement. In
the advertisement issued criteria for selection to post of Grade III was Secondary Examination.
The change was done during the pendency of the made. The amendment cannot be made
retrospectively.

SENIORITY :

In Jagdish Ch.Patnaik V. State of Orissa14, it has been held that seniority cannot be claimed
from the date when vacancy arises but will be fixed on the basis of date when actual
appointment is made. Actual year of appointment governs seniority. Year in which vacancy
arose and against which recruitment is made is irrelevant in determining the inter-se seniority,
between direct recruits and promotes.

DECENT & RESIDENCE :

It is to be noted that the two additional grounds “decent” and “residence” not included in
Article15 have been added to Article 16 (2). No discrimination can be made on these grounds.
This is just to assure that parochialism and nepotism is eliminated in the matters of appointment
in government services. The provincial slogan ‘Madras for Madrasis’, ‘Bengal for Bengalis’,
‘Mysore for Mysoreans’ are most unhealthy for the ‘growth of a truly federal democracy’. The
systems of British era have to be eliminated in independent India and hence this provision in
Article16(2). ‘Decent’ is another spot for individual discrimination. In Dasaratha Rama Rao
V. State15, the Supreme Court has held that the office of the village Munsif was an office under
the state; and Section6(1) of the Madras Act which required the Collector to select persons

13
MadanMohanSharma V. StateofRajasthan,2008
14
Ch.Patnaik V. State of Orissa,1998
15
1961 AIR 564, 1961 SCR (2) 931

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from among the last holder of the office discriminated on the grounds of decent only and hence
void for contravening Article16(2).

PENSION AND GRATUITY:

Children born to deceased Hindu employee from second wife during the existence of first
marriage entitled to share family Pension and Gratuity.

In K.H.Siraj V. High Court of Kerala 16, the fact was that there arose a dispute regarding
payment of family pension and death cum-retirement gratuity between two wives of one Narain
Lal who died in 1987 while posted as Managing Director, Rural Development Authority of the
State of Bihar. The appellant is the first wife. Narain Lal had married second time with
Yogmaya Devi in April, 1963 while the appellant was still alive. From the first marriage he
had one son and from the second marriage he had four sons. The learned single Judge held that
children born to Narain Lal from the wedlock with Yogmaya Devi were entitled to share family
pension and death cum-retirement gratuity till they attain majority. The High Court also held
that the second wife Yogmaya Devi was not entitled to anything. Appeal by the first wife
Rameshwari Devi was dismissed by the Division Bench. According to her there was no
marriage between Narain Lal and Yogmaya Devi and children were therefore, not legitimate.
Rameshwari Devi filed the special leave petition in the Supreme Court. The Supreme Court
held that the children born to deceased Hindu employee from second marriage during the
existence of first are entitled to share in family pension and gratuity. Under Section 16 of the
Hindu Marriage Act,1955 children of void marriage are legitimate. Under the Hindu
Succession Act, 1956 property of a male Hindu dying intestate devolves firstly on heirs in
Clause(1) which includes widow and son among the widow and son they all get shares. The
second wife taken by deceased Government employee during the existence of the first wife
cannot be described a widow of deceased employee, their marriage being void. But the sons of
the deceased employee, their marriage being void. But the sons of the deceased employee from
his second wife being legitimate will be entitled to the property of the deceased employee.

REQUIREMENT AS TO RESIDENCE IN A STATE[Article16(3)]

Clause (3) constitutes an exception to Clause (1) and Clause (2) of Article Clause (3) empowers
the Parliament to make “any law prescribing in regard class or classes of employment or
appointment to an office under the Government of, or any local or other authority within, a

16
K.H.Siraj V. High Court of Kerala,2000

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State or Union territory, requirement as to residence within that State or Union territory prior
to such employment or appointment”. It may be noted that it is the Parliament and not the

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

In AVS Narasimha Rao v. Slate of A.P17., the Apex Court struck down Section 3 of the Public
Employment (Requirement as to Residence), Act, 1957, which related to Telangana part of
Andhra Pradesh, as ultra vires the Parliament. Clause (3) of Article 16, the Court explained,
used the word “State”, which signified “State” as a unit and not parts of a State as districts or
other units 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.

INTERVIEW :

Best Method Of assessing suitability In K.H.Siraj V. High Court of Kerala18, the Supreme
Court has held that interview is the best method of assessing the suitability of a candidate. It
brings out over all intellectual and personal qualities of candidates while written examination
will testify the candidates academic knowledge, the oral test alone can bring out or disclose his
overall intellectual and personal qualities like alertness, resourcefulness, dependability,
capacity for discussion, ability to take decisions, qualities of leadership etc. which are also
essential for a judicial officer. In the instant case, the appellant had challenged the validity of
Kerala Judicial Services Rules 14 and 15, fixing of minimum marks for interview for selection
of Munsif Magistrate. The Supreme Court held that the Rules made by the Kerala High Court
for the selection of judicial officers is valid. The High Court is the best judge of what should
be the proper mode of selection.

17
1970 AIR 422, 1970 SCR (1) 115
18
K.H.Siraj V. High Court of Kerala,2008

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RESIGNATION :

In Prabha Atri V. State of U.P19., the appellant was working as Anaesthetist in Kamla Nehru
Memorial Hospital, Allahabad was suspended for leaving the hospital without informing
anyone at a crucial time when she was required to give anaesthesia to one patient admitted to
emergency which need urgent operation. The appellant accepted the said lapse on her part but
requested the authorities to take lenient view by a letter. Further she started in the letter that if
lenient view is not taken she would have no option but to tender resignation with immediate
effect. The authorities informed her that the resignation was accepted and advised her to submit
no dues certificate as per Hospital Service Rule so that her terminal benefits may be finalised.
In response to this letter he stated that she never resigned but expressed her intention to resign
and requested the authorities to rectify the mistake. The Hospital authorities refused to
reconsider the matter. The appellant filed a petition in High Court which was dismissed and
thereupon she filed this appeal in the Supreme Court. The Supreme Court held that such a letter
cannot be construed to convey any spontaneous intention to give up her office. At best, it may
amount to a threatened offer to resign on account of a feeling of frustration born out of a plea
that she was being harassed unnecessarily. To constitute a resignation, it must be unconditional
and with an intention to operate as such. The words ‘with immediate effect’ in her letter could
not be given undue importance dehors the context and circumstances in which it was written.
The court set aside the order of the High Court and resignation which non existent.

RESERVATION OF POSTS FOR BACKWARD CLASSES[Article16(4)]

Clause (4) of Article 16 expressly permits the State to make “provision for 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”. The expression “backward
class of citizens” in Article 16(4) includes the Scheduled Castes and the Scheduled Tribes. This
Clause, however, cannot be extended to persons acquiring SC/ST status by voluntary mobility.
Further it was held in Valsamma Paul v. Cochin University20, children of inter-caste married
couples, of which one is SC/ST, have been held not e0ntitled to claim reservation benefit.

19
Prabha Atri V. State of U.P,2002
20
AIR 1996 SC 1011

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However, such children can claim relaxation of marks. Thus, Article16(4) applies only if two
conditions are satisfied:-

1. the class of citizens is backward ; and

2. the said class is not adequately represented in the services of the State.

The second second cannot be the sole criterion.

In Balaji v. State of Mysore21, the Supreme Court has held- The ‘caste’ of a person cannot be
the sole test for ascertaining whether a particular class is a backward class or not. Poverty,
occupation, place of habitation may all be relevant factors to be taken into consideration.
Though the caste of a person cannot be the sole test for determining the backwardness of a
class, yet if an entire caste is found to be socially and educationally backward, it may be
included in the list of Backward classes. It does not mean that once a caste is considered
backward class, it should continue to be backward for all the times. The government should
review the test and if a class reaches the state of progress where reservation is not necessary, it
should delete that class from the list of the Backward classes.

ARTICLE16(4) IS NOT AN EXCEPTION TO ARTICLE16(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. It confers no right on
citizens to claim reservation. Article 16(4) has been held not mandatory. How reservation is to
be made, is a matter of policy.

The Supreme Court in E.V. Chinnaiah v. State of A.P22., while striking down the Andhra
Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000, ruled that “while
reasonable classification is permissible, micro-classification or mini-classification is not”. The
State, thus, has no power to sub-divide, sub-classify or sub-group the castes which are found
in the Presidential List of Scheduled Castes, issued under Article 341. The Court explained that
the principle of sub-classification of Backward Class into backward and more backward was
not applicable to Scheduled Castes and Scheduled Tribes.

21
1963 AIR 649, 1962 SCR Supl. (1) 439
22

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If a State or Union Territory makes a provision where under the benefit of reservation is
extended only to such Scheduled Castes/Tribes which are recognized as such, in relation to that
State/Union Territory, then such a provision would be perfectly valid.

In Indra Sawhney v. Union of India23, the Supreme Court ruled that Clause (4) of Article 16
is not an exception to Clause (1) rather it is an instance of classification implicit in and
permitted by Clause (1). The term “reservation” in Article 16(4) implies a separate quota which
is reserved for a special category of persons. The very purpose of reservation is to protect the
weaker category, against competition from the open category candidates. Reservation implies
selection of less meritorious person. Thus, grant of relaxation in passing marks to SC/ST
candidates in examinations, would be covered by Article 16(4).

SCOPE OF ARTICLE16(4) :
In T. Devadasan v. Union of India24, the carry forward rule, regulating reservation of
vacancies for candidates belonging to Scheduled Castes and Scheduled Tribes, was struck
down by the Apex Court, as invalid and unconstitutional. As a result of the application of the
impugued Rule, in the year 1961, out of the 45 vacancies, actually filled, 29 went to the
candidates belonging to Scheduled Castes/Tribes. That came to about 64% of reservation. The
majority of the Supreme Court following MR. Balaji v. State of Mysore declared that
reservation exceeding 50%, in a single year would be unconstitutional and invalid. The Court
further ruled that, for the purpose of reservation, each year, should be taken by itself and
therefore, there should be no carry forward of the unfilled reserved vacancies.

In State of Kerala v. N.M. Thomas25, the Kerala Government framed Rules regulating
promotions from the cadre of lower division clerks to the higher cadre of upper division clerks,
which was made dependent on the passing of a departmental test within two years of the
introduction of this test. Failure to pass the test within two year disentitled the lower division
clerk promotion in future. However, by an Order issued subsequently under the said Rule, the
members belonging to Scheduled Castes/Tribes were granted a longer period and were given
two extra years to pass the test.

With a view to settle the law, relating to the reservations in an authoritative way, a special
Bench of nine Judges of the Supreme Court, was, for the first time, constituted in Indra

23
AIR 1993 SC 477, 1992 Supp 2 SCR 454
24
1964 AIR 179, 1964 SCR (4) 680
25
1976 AIR 490, 1976 SCR (1) 906

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Sawhney v. Union of India, 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) Until a law is made or rules are issued under Article 309 with respect to reservation in
favour of backward classes, it would always be open to the Executive (Government) to
provide for reservation of appointment/posts in favour of Backward Classes by an
executive order.

(2) Clause (4) of Article 16 is not an exception to Article 16(1). It is an instance of

classification implicit in and permitted by Clause (1) of Article 16.

(3) The words “provisions for the reservation of appointments/posts” in Article 16(4)
include other forms of special provisions like preferences, concessions and exemptions.

(4) Clause (4) of Article 16 is exhaustive of the special provision that can be made in favour
of “the backward class of citizens.”

(5) Clause (4) of Article 16 is not exhaustive of the concept of reservations. It is exhaustive
of reservations in favour of backward classes alone.

According to the majority view, Article 16(1) permitted the making of reservation of
appointments/posts which should be made only in exceptional situations and wherein
the State is called upon to do so in public interest,

(6) The word ‘class’ in Article 16(4) is used in the sense of social class. It is not antithetical
to “caste”. The Constitution is meant for the entire country and for all time to come.

(7) For Identification of backward classes, one has to begin somewhere with some group,
class or section. Neither the Constitution nor the law prescribes the procedure or method
of identification of backward classes. Nor is it possible or advisable for the Court to lay
down any such procedure or method. It must be left to the authority appointed to
identify. It can adopt such method/procedure as it thinks convenient.

(8) It is not necessary for a class to be designated as a backward class that it is situated
similarly to the Scheduled Castes/Scheduled Tribes.

(9) The backwardness contemplated by Article 16(4) is mainly social backwardness. It

should not be correct to say that the backwardness under Article 16(4) should be both
social and educational.

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(10) A backward class cannot be determined only and exclusively with reference to
economic criterion. It may be a consideration or basis along with and in addition to
social backwardness, but it can never be the sole criterion.

(11) It is permissible for the Government or other authority to identify a backward class of
citizens on the basis of occupation-cum-income without reference to caste.

(12) There is no constitutional bar to classify the backward classes of citizens into backward
and more backward categories.

The Court held that sub-classification between backward classes and more backward
would be advisable to ensure that the more backward among the backward classes
should obtain the benefits intended for them. If it was not so done then the advanced
section of the backward classes might move away with all the benefits of reservation.

(13) In order that the backward classes are given adequate representation in the State
services and to ensure that the benefit of reservation reach the poorer and the weakest
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 otherwise-
of creamy layer.

(14) 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.

(15) Article 16(4) speaks of adequate representation and not proportionate representation.

(16) The rule of 50% shall be applicable only to reservations proper, it shall not be, indeed,
cannot be, applicable to exemptions, concessions or relaxations, if any, provided to
Backward Classes under Article 16(4).

(17) 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.

(18) The carry forward of unfilled reserved vacancies is not per se unconstitutional. However,
the operation of carry forward rule should not result in breach of 50% rule.

(19) Article 16(4) does not contemplate or permit reservation in promotions as well. The
reservations are thus confined to initial appointments only.

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(20) Reservation for backward classes should not be made in services and position where
merit alone counts.

JUSTICE RAM NANDAN COMMITTEE-“CREAMY LAYER”

In Indra Sawhney v. Union of India, the Supreme Court directed the Government of India to
specify the basis of exclusion whether on the basis of income, extent of holding or otherwise
of “creamy layer”. In accordance with this direction, the Government of India appointed an
expert committee known as “Justice Ram Nandan Committee’, to identify the creamy layer
among the socially and educationally backward classes. The Committee submitted its report
on March 16, 1993, which was accepted by the Government. It was published in Column 3 of
the Schedule to the Government of India, Ministry of Personnel Department Office
Memorandum, and dated 8-9-1993.

In Ashok Kumar Thakur v. State of Bihar26, the Supreme Court quashed the criteria laid
down by the States of Bihar and Uttar Pradesh for identifying the “creamy layer” and excluding
the affluent sections of the Backward Classes for the purposes of job reservation. The Supreme
Court held that the conditions in addition to those laid down in Mandal case, for applying the
rule of exclusion laid down by the States had no nexus with the object sought to be achieved
and were arbitrary, and hence violative of Articles 16(4) and 14 as also against the law laid
down in Mandal 4. A three-Judge Bench of the Supreme Court in Indra Sawhney v. Union of
India ruled that non-exclusion of creamy layer in backward classes was violative of Articles 14
and 16(1) and also of Article 16(4).

SC & STs and OBCs: Two separate classes for purposes of Reservation under Articles15(4) &
16(4)- In Chattar Singh V. State of Rajasthan27, the appellants , candidates belonging to
OBCs, challenged the validity of proviso to Rule13 of the Rajasthan State and Subordinate
Services Rules as violative of Arts.15(4) and 16(4) of the Constitution. Rule 13 prescribed the
mode of conducting preliminary as well as main examination. Proviso to Rule 13 provides that
if adequate number of candidates belonging to the SCs and STs were not available amongst the
candidates to be declared qualified for admission to the main examination, the Public Service

26
1996 AIR 75, 1995 SCC (5) 403
27

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Commission could at their discretion keep the cut off marks upto 5 percent less than the general
candidates.

RESERVATION IN SUPER-SPECIALITIES :

In Indra Sawhney v. Union of India, the majority of the Supreme Court had opined that there
were certain services and positions where, either an account of the nature of duties attached to
them or the level (In the hierarchy) at which they were obtained, merit alone would count. It,
therefore, meant that the rule of reservation would not be applied in cases of super-specialities.

In K. Duraisamy v. State of Tamil Nadu28, the Supreme Court in this respect, observed:

“It is by now a proposition well settled that at the super speciality level in particular and even
at the Post-Graduate level reservations of the kind known as ‘protective discrimination’ in
favour of those considered being backward should be avoided as being not permissible.

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 ARTICLE 16(4) & ARTICLE 335

Article 335: provides that “the claims of the members of the SCs and STs shall be taken into
consideration, consistently with the maintenance of efficiency of administration in the making
of appointments in services and posts in connection with the affairs of the Union or of a State”.
There has been some debate as to whether Art.335 had any limiting effect on the power of
reservation conferred by Art.16 (4). The nine-judge bench of the Supreme Court in Indira
Sawhney considered the argument that the mandate of Art.335 implied that reservation should
be read subject to the qualification engrafted in Art.335 i.e. consistently with the maintenance
of efficiency of administration. Dealing with the argument majority framed an issue as to
whether reservations were anti-meritarian. The majority then observed that may be efficiency,
competence and merit are not synonymous concepts; maybe it is wrong to treat merit as
synonymous with efficiency in administration and that merit is but a component of the
efficiency of an administration. Even so the relevance and significance of merit at the stage of
initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation
implies selection of a less meritorious person. At the same time, we recognise that this much
cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also
firmly believe that given an opportunity, members of these classes are bound to overcome their
initial disadvantages and would compete with-and may in some cases, excel members of open
competitor candidates. It is undeniable that nature has endowed merit upon members of
backward classes as much as it has endowed upon members of other classes and what is
required is an opportunity to prove it. But in case of Article 16, Article 355 would be relevant.
It may be permissible for the government to prescribe a reasonably lower standard for
scheduled castes/Scheduled tribes/backward classes consistent with the requirements of
efficiency of administration. It would not be permissible not to prescribe any such minimum
standard at all. While prescribing the lower minimum standard for reserved category, the nature
and duties attached to the post and the interest of the general public should also be kept in mind.
While on Article 355, we are of the opinion that there are certain services and positions where
merit alone counts. In such situations, it may not be advisable to provide for reservations. For

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example technical post in Research and Development organisations/departments/institutions,
super specialities in medicine, engineering etc.

RESERVATION IN PROMOTION-SEVENTY-SEVENTH
AMENDMENT,1995[Article 16(4A)]

In Indra Sawhney v. Union of India, after taking into consideration all the circumstances, the
Court said that Article 16(4) did not contemplate or permit reservation in promotions. This
question, the Court said, had not to be answered on a reading of Article 16(4) alone but on a
combined reading of Article 16(4) and Article 335. The Court observed that while it was
certainly just to say that a handicap should be given to backward classes of citizens at the stage
of initial appointment, but it would be a serious and unacceptable inroad into the rule of equality
of opportunity to say that such a handicap should be provided at every stage of promotion
throughout their career. The above rifle has been modified as regards the members belonging
to the Scheduled Castes and the Scheduled Tribes, by the Constitution (Seventy-seventh
Amendment) Act, 1995. The 77th Amendment, 1995 has been upheld by the Supreme Court
in Commissioner of Commercial Taxes, A.P. Hyderabad v. G. Sethumadhava Rao29.

EXCLUSION OF 50% CEILING w.r.t CARRY FORWARD RESERVED

VACANCIES[Article16(4B)]

In Indra Sawhney v. Union of India, the majority had ruled that operation of carry forward rule
should not result in breach of 50% rule. This while would no more be followed after the
enactment of the Constitution (Eighty-first Amendment) Act, 2000. This new Clause (4B)
enables the State to carry forward the unfilled reserved vacancies to be filled in any succeeding
years so as to remove the backlog, notwithstanding the rule of 50% ceiling.

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 RESERVATION IN PROMOTION: CATCH-UP RULE NEGATED-85th
AMENDMENT,2001

A five-Judge Constitution Bench of the Supreme Court, in Ajit Singh v. State of Punjab30,
ruled that the primary purpose of Article 16(4) and Article 16(4A) was to provide due
representation to certain classes in certain posts. The Apex Court further observed that the rule
of reservation gave accelerated promotion, but it did not give the accelerated consequential
seniority. The Court explained that a reasonable balancing of the rights of general candidate
and roster candidate would be achieved by following the catch-up rule. According to this rule
if ‘in case any senior general candidate at level 2 reaches level 3 before the reserved candidate
(roster point promote) at level 3 goes further up to level 4, in that case the seniority at level 3
has to be modified by placing such a general candidate above the roster promote reflecting their
inter seniority at level 2.” To negate the effect of the above judgments, Article 16(4A) has been
amended by the Constitution (85th Amendment) Act, 2001. In the amended Clause (4A) of
Article 16, in place of the words “in matter of promotion to any class”, the words “in matter of
promotion with consequential seniority to any class” have been substituted.

OFFICES UNDER A RELIGIOUS OR DENOMINATIONAL

INSTITUTION[Article16(5)]

Clause (5) of Article 16 is the third exception to the general rule of equality of opportunity
contained in Article 16 (1) as also Clause (2). Clause (5) provides that a law may prescribe 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.” It, 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

30
1967 AIR 856, 1967 SCR (2) 143

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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.

EQUAL PAY FOR EQUAL WORK

In Randhir Singh v. Union of India31, the Supreme Court enunciated the principle of “equal
pay for equal work”. The Court observed that it was true that the principle of “equal pay for
equal work” was not expressly declared by the Constitution to be a fundamental right. But, it
certainly was the constitutional goal. The Court held that this principle could be deducted from
Articles 14 and 16, when these provisions were construed in the light of the Preamble and
Article 39(d) of the Constitution. The Court further laid down that the principle could be
properly applied to cases of unequal scales of pay based on no classification or irrational
classification.

ARTICLE 16 AS A BUNDLE OF CONTRADICTION

Article 16 of the Constitution of India is a bundle of contradictions, as on the one hand it deals
with equality of opportunity in matters of public employment, and, on the other, it enables the
government to provide for reservation in public employment. Article 16 of the Constitution is
part of the Fundamental Rights and provides for equality in the matters of employment in public
employment. Many people feel that this Article, instead of equality in these matters,
perpetuates the inequalities and offers a framework of contradiction. The Fundamental Rights
should ideally provide the measures vide which the equality is ensured but the exceptions
provided to this right overweigh the right provided. Article 16 provides that there shall be
equality of opportunity for all citizens in the matters of employment or appointment to any
office under the State. This Article also provides that no citizen shall be ineligible for any office
or employment under the State on grounds only of religion, race, caste, sex, descent, and place
of birth or any of them. After having stated the above, several exceptions are also provided for.
Place of residence may be laid down by the legislature as a condition for particular classes of
employment or appointment in any State or any local authority. Further, the State may reserve

31
1982 AIR 879, 1982 SCR (3) 298

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any post or appointment in favour of any backward class of citizens, who, in the opinion of the
State, are not adequately represented in the services under that State. In addition, the offices

connected with the religious or denominated institutions may be reserved for the members
practicing that particular religion. The most important and controversial exception pertains to
the provisions of Article 16(4) relating to the claims of the members of the Scheduled Caste
and Scheduled Tribe communities in the matters of appointment to the services and posts under
the Union and the States, to be consistent with efficiency in administration as far as possible
(Article 335).

The Supreme Court has held that while the provisions of Article 16(4) are without any
limitation upon the power of reservation, yet it has to be read with the provisions of Article 335
for maintenance of efficiency in administration. The Apex Court also held that the total
reservation under Article 16(4) should not exceed 50 per cent. Detailed study of the provisions
of the Article 16 reveals that while originally this Article aimed at protecting the rights of
common man with regard to equality of opportunity but gradually, due to the need felt by the
government to extend the benefit of reservation to the other backward classes and also the
political considerations, its focus has now shifted to providing the benefit of reservation to the
backward classes and the SC/ST. But one thing has been confirmed that the extension of the
benefit cannot be arbitrary.

Various pronouncements of the Supreme Court of India during the past almost six decades
have plugged the gaps in the provisions of this Article and also provided a standard framework
for extending the benefit of reservation in future to any other categories. The measures that
looked to be controversial initially have also been settled by the judgments of the highest court
of law in the country.

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 CONCLUSION

The reservation policy in India in all sectors has become a disturbing and cyclical process.
Initially with the introduction of constitution it provided reservation for only SC’s and ST’s
but later on OBC were included and now the other minorities are demanding reservation as
well, which would ultimately lead to a situation where the seats left for the majority would not
be proportional with their population. This therefore, becomes an unending issue, rather than
an equal opportunity issue.

It’s not that only developing or underdeveloped countries are facing sociological problems
because these problems still persist in the most developed nation in the world like that of USA.
But in USA there is no reservation policy as such and there is an affirmative action program
for the minorities and especially for the African-Americans. India being a developing country
is slogging in almost all facets to achieve its 2020 mission but for that there is a serious need
for reconsideration of the reservation policy in India because the reservation policy
compromises with the efficiency of a Country by not sincerely recognizing the merits of
backward classes which therefore hamper the development of a country

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