Article 16

Equality of Opportunity in Public Employment

 Article 14 and 16 of the Indian Constitution are closely interrelated. While art.14 aims
to provide a general ‘equal protection doctrine’, art. 16 peculiarizes it by providing for
equality of opportunity in public employment.

 It is also to be kept in mind that the scope of application of art. 14 is much wider than
that of art. 16 as the former applies to both citizens and non-citizens.

 Art. 16(1)aims at guaranteeing equality of opportunity to all citizens in matters

relating to employment or appointment to public office, under the state.

 Public employment is a subset of the right to equality envisaged in art. 16. Hence the
recruitment rules formulated by the state, as under its statues, must be done with a
view to providing equal opportunity to all citizens to be considered for recruitment
under those posts.

 Art. 16(2), on the other hand, has a negative overtone. It prohibits discrimination in
matters of public employment on the grounds of religion, race, caste, sex, place of
birth, descent or residence’.

 It is pertinent here to note that art. 16(2) although works in a limited fashion in
comparison to art. 16(1) they both are meant to work in consonance for the
entire populace of the country.
 The use of the word only in the subsection (2) of art. 16 highlights its
limited scope of the prohibition. Hence any grounds other than what is
mentioned under subsection (2) may be conceived to be culled out
from 16(1).
 When a comparison is made between the articles 15 and 16 of the Indian
Constitution, one may draw the conclusion that;
  The scope of application of art. 15 is much wider than that of art. 16,
which is simply limited to the matter of public employment.
 However, when it comes to subsection (2) of both the articles relating
to the prohibited grounds of discrimination, it may be observed that art.
16(2) provides for 2 additional grounds for non-discrimination over
and above art. 15(2).

 An important consideration that is required to be made when we study art. 16 is that

in application it is somewhat similar to that of art. 14. Just like how in art. 14, we
contemplate about the ‘equal protection of laws’, i.e. equality among equals, the same
may be applied to protection under art. 16.

 Equality cannot be pressed against members of different classes.

 It, therefore, guarantees the application of the same laws without
discrimination on all persons similarly situated.

 Another important aspect of art. 16 is the scope of the word ‘employment’.

 It is understood that the word does not limit the application of art. 16 simply to
the matters of ‘appointment to public service’, but allows the application to all
stages of service.
 In greater detail, it deals with all matters both prior and subsequent to
employment that are incidental to the employment that forms part of the T&C
of such employment.

Case 1: Gen Manager Southern Railways v. Rangachari

‘the guarantee of art. 16(1) could become illusory if narrowly construed, for then the
state could comply with its formal requirement by affording equality at the initial
stage but defeat its object by making discriminatory provisions as regards to other
matters subsequently’.
  Moreover, the protection under art. 16 (read with art. 14) is also available to
temporary government servants who are appointed by the state.

 Similar to art. 14, the nature of equality is not mathematical in the case of art. 16. It is
permissible to make a reasonable classification for various purposes of employment.

 Lastly, an incident of sexual harassment of a woman at her workplace also amounts to

the violation of her Fundamental Right to gender equality under art. 16(2).

Matters of Public Employment

I. Service Conditions
 The art. 309 of the Constitution allows that government to alter the service
conditions of the government servants. However, any amendments made in
such furtherance must be reasonable and fair and not grossly unjust.

 The legal position of a government servant is one of ‘status’ and not

contractual, in nature. Hence through statutory rules, the government may
unilaterally alter the service conditions without the consideration of
employees.
 This risks administrative discrimination, favoritism, arbitrariness,and
abuse of power.
 Hence the Supreme Court has repetitively laid down many regulations
pertaining to the service conditions of government servants (in light of
art. 14 and 16).

 ‘Seniority’is a civil and not a fundamental right. Article 16 is meant to deal

with the aspects of employment and not seniority. However, the unilateral
change of the status of the employee by the state is arbitrary in nature and
regarded to be in violation of art. 14 and 16.

II. Appointment
 In the absence of service rules pertaining to the appointment of government
servants, the same can be made by the exercise of executive power.
 In case the statutory rules are present the executive can make an appointment in
accordance with such rules. However, the nature of executive actions must be
supplementary to the appointment rules.

Ad-Hoc Appointments

 In case ad-hoc appointments are made outside the purview of the

service rules then immediately such appointments must be replaced by
regularly selected ones.
 Over the past years,ad-hoc employees have been fighting for the
regularization of their appointment.
0
 In Case 2: State of Karnataka v. Uma Devi
 The employees argued that an equity has arisen due to such
appointments and their continuance of work.
 The court however held that the concept of ‘equal pay for equal
work’ was different from conferring permanency, on those
appointed in an ad-hoc fashion against the service rules.
 It was decided that such regularization would only attract the vice
of treating ‘unequals as equals’ violative of art. 14 and 16.

 Another common issue that is faced in the appointment process is the enormity of
candidates applying for a contrastingly lesser number of seats available. Here the
selection board is required to adopt a rational and just basis for shortlisting
candidates.
 Reasonable rules, selection tests may be laid down for selection of
employees.
 However, this requires a reasonable nexus between the prescribed test
and the post as such.
 Educational qualification is regarded as a suitable basis for an
appointment to a particular post.
  The same may be used to classify employees in matters of the
pay scale, promotions, etc.
 When it comes to different classes/cadres of jobs within the same governmental
enterprise nothing stops the executive from;
 Creating new cadres or categories of posts for specific requirements, or
 Integrating different cadres into one cadre.

Appointment (and preferences) on the basis of place of residence

 In general giving preference in appointment on the basis of place of

residence within a district has been regarded to be violative of art.
16(2), as it goes against the unity and integrity of the nation.
 However, art. 16(3) provides that residence may be set as a
requirement for a job under state as such jobs would require the
people to stay for a long time and work for the government, which
would not be feasible for people from other states.

III. Compassionate Appointment

 Appointments made on a compassionate ground for the close relatives of the deceased
government servant has been held to be valid under art. 16(1) and 16(2).

 The reason for the same is that the deceased employee was the sole bread-winner for
the family and has his death has left the family in a difficult financial position.

 However, it must be noted that compassionate appointments cannot be claimed as

rights under art. 16.
 Especially when the service rules for such job doesn’t cover the same.
 The same may not also be possible in case of absence of any post for an
appointment.

 It is also mandated by the SC that the financial position of the family in consideration
must be assessed before providing for compassionate appointment.
  Also,all appointments made on compassionate grounds can be made against the
lowest post in both the manual and non-manual categories.

Case 3: NIT v. Neeraj Kumar Singh

 Compassionate appointments are applicable only to the widow, dependent
children or specified relatives of the deceased employee.

IV. Probation
 An employer has the duty to put an employee on probation and test his suitability for
the job.

 Such probationer doesn’t have the right to hold the job and his service can be
terminated anytime during or at the end of his probationary period.

 In case a competent authority is instituted to assess his suitability for the job then the
decision of such authority may not be put into question.

V. Promotion
 Employees do not enjoy the right to promotion but they do possess the right to be
considered for promotion.

 Hence if a rule pertains to actual promotion or the consideration for promotion then it
is a service rule.

 The government can formulate or modify service rules pertaining to promotions, but
the same must be done in conformity with the principle of equality.
 Due to the multifarious activities of the government, it may be required to
created multiple job categories, each having separate rules of promotion.
 Hence members from one class cannot cry inequality in promotion with the
member of another class.
 Another area of discussion when it comes to promotion under the state is the
promotion of individuals from lower to a higher grade within the same class.

Quota & Rota in the appointment

 Usually when among directly appointed employees and promoted

employees a quota is given in the preference for promotion to one of
the categories then the other side is necessarily affected.

 Hence to avoid any imbalance in promotion preferences a system of

ROTA (rotation) has been instituted.

 Consider this illustration on quota being allocated for a member

category in a year and a consequent rotation in quota in the following
year;

Case 4: General Manager Southern Railways v. A.V.R. Sidhanthi

 If preferential treatment is accorded to one group in the matter of promotion
the same would be justified if the difference has a reasonable nexus to the
office to which such person is being promoted.

Case 5: OP Singla v. Union of India

Case 6: Janardhan v. Union of India

  When service rules provide for recruitment from 2 different sources and also
prescribes a quota as between the 2 categories, any recruitment in excess of
the quota would be invalid and any member of the other category who has
been affected by such transgression of the quota may obtain mandamusto
quash the seniority list which is violative of the quota and to make a fresh
seniority list in accordance with the quota rule.

Horizontal & Vertical Classification (only cases mentioned)

Case 7: Rajesh Kumar Dhariya v. RSPC

Case 8: Indira Sawhney v. Union of India
Case 9: Anil Kumar Gupta v. the State of U.P

VI. Seniority
 Seniority is one of the most frequently addressed questions when it comes to service
rules. Seniority is governed by service rules and hence they vary in application across
jobs.

 While no one has a vested right to seniority, an employee may have an interest in
seniority by working out the rules. However, it must be noted that seniority may be
taken away by the operation of law.

 The executive authority may decide matters pertaining to seniority in accordance to

the service rules. Howsoever such rules must not be arbitrary.

 Seniority is determined with reference to the date of appointment of an officer in

accordance with the rules.
 Any temporary, ad hoc,fortuitous appointment as against the rules would
not be considered for seniority.
 Hence ‘appointment in accordance to rules is a condition precedent to
seniority’.
.
  The date of promotion to a particular cadre determines the seniority in that cadre.

Equal Pay for Equal Work

 The SC deduced this principle from art. 14, 16, 39(d) & the preamble of the
constitution.
 Apart from being mentioned as a DPSP in the constitution, it has matured somewhat
into a Fundamental Right. As a DPSP it ordains the state to ensure equal pay for equal
work for men and women.

 One may at this point raise the issue that being a DPSP it is unenforceable in the court
of law. However, FR and DPSP aren’t meant to act exclusively of each other rather
meant to complement one another. Hence courts have now and then applied this
principle in securing equity.

 Employees under the same employer holding the same rank, performing similar
functions and discharging similar duties must also be given similar pay scales. The
court has definitively identified it as a constitutional goal.

 In case the government classifies between categories of employees so as to award

them different scales of pay then there must exist an intelligible differential between
the classes so created and a reasonable nexus between the classification made and its
object.

Case 10: Randhir Singh v. Union of India

The court rejected the idea of the government that persons belonging to the different
departments of the government in itself are a reason to justify different scales of pay
irrespective of similar powers, duties,and responsibilities.

Reservation in Services: Article 16(4)

 Under art. 16(4), the state may create a reservation of appointments in favor any
backward class citizens which in the opinion of the states are inadequately represented
in the public services in the state.

 However, it has been identified by the courts that art. 16(4) neither imposes a
constitutional duty on the state nor provides a fundamental right to such reservation. It
is merely an enabling provision.

 As under art. 16(4) it is upon the state government to conclude whether the backward
class for which reservation has been made is adequately represented in the state
services or not.

 It must, however, be kept in mind that providing reservation doesn’t eliminate merit.
It a point of concern that has been raised one too many times because the
constitutional scheme is to choose candidates able to serve society.

 Whenever a provision for reservation is challenged it is upon the government to show

in each case; backwardness, inadequate representation,and overall administrative
efficiency. This must also be shown while preparing such a provision.

 Quite often the question of what constituted the ‘backward class’ under art. 16(4) was
raised. A comparison and contrast were made with the scope of ‘backward class’
under art. 15(4)

Case 11: Janki Prasad Parimoo v. State of Jammu & Kashmir

 The expression ‘backward class’ under art. 16(4) referred to any Socially and
Educationally Backward Class (SEBC) of citizens.

 In reiterating the Rangachari Case, it was found that reservation to be provided under
art. 16(4) was not simply limited to the initial recruitment process but also extended to
the reservation at higher posts.
 The court identified that the phrase ‘adequate representation’ under art.
16(4) carries considerations of ‘size’ and ‘values’. Hence the reservation
 proposed must qualify both a quantitative and qualitative test. Hence
extending reservation post initial appointment phase would lead to the
representation of the underrepresented class at senior posts.
 This judgment was overruled in the Indira Sawhney v. Union of India
case.

Case 12:M.R. Balaji v. State of Mysore (1962)

 The court ruled as a general rule that any special reservation must be less than
50%. It regarded this to be an interpretation made in a broad sense.
 It also held that art. 16(4) is an exception to art. 16(1) and hence goes against
the general rule.

Case 13: T. Devadasan v. Union of India (1964)

 The case discussed the validity of the carry forward rule in the reservations
made in public offices.
 The rule was of the nature that if in one year 17.5% of the seats were reserved
for SC/ST’s, and in the case due to lack of availability of suitable candidates
such shortfall should be shifted to the reservation made the following
year/term. This eventually led to a reservation of 65% in the following years.
 The court found it unconstitutional to have a reservation of more than 50% in
a single year and hence violative of art. 16(1). They held that an attempt to
uplift the backward classes the rights of other communities must not be put to
risk.
 It also found that the quantum of reservations made must be reasonable in
nature – balance b/w claims of the backward class and other classes.

Majority Judgement:
Art. 16(4) is an exception to art. 16(1).

Minority Judgement:J. M.Subba Rao

Art. 16(4) is not an exception to art. 16(1), but has an independent existence.
Otherwise, it would be art. 16(4) would exceed art. 16(1).
  This case in the process also recognized the minority judgment in the
Rangacharicase, wherein it held that filling senior posts with not so qualified
candidates just to meet representation is not only discriminatory to other
candidates but also subversive of administrative efficacy.

Case 14: State of Kerala v. N.M. Thomas

 Taking the minority opinion of J. M.Subba Raoin the DevadasanCase, the
SC held that it was constitutional to give reservation (preferential treatment) to
SC/ST’s under art. 16(1) outside art. 16(4).
 Furthermore, they also upheld the minority opinion by pointing out that art.
16(4) is a facet of art. 16(1) which is aimed at furthering the idea of equality of
opportunity with special preference to an underprivileged class of citizens.
 This judgment may be regarded to be a landmark in nature as it paved way for
reservations to SC/ST’s and other backward persons. In the absence of this
judgment, no reservation would have been available for other classes such as
army personnel, freedom fighters, physically handicapped, etc.
 Therefore, a reasonable classification ensuring the representation of the
backward communities would not only be valid but also uphold equality
between the classes.
 It was also pointed out that Scheduled Case was not a cast with the ordinary
meaning of cast as under art. 16(2). They are as notified by the President under
Art. 341.
 It was also opined that the concept of reservation ceiling to 50% as envisaged
in the Balaji case was merely a rule of caution and is not meant to be applied
evenly across all cases.

Case 15: Indra Sawhney v. Union of India

 A landmark case in the Indian Jurisprudence that came after a political turmoil
that took place in the country post the Mandal Commission report that came
out in 1979.
 The report observed that apart from SC/ST’s there exists another
backward class, named as Other Backward Classes (OBC), amounting
to 52% of the population, requiring a reservation of 27% in the
government jobs.
  A number of observations were made by the court;
 It reiterated the view in the Thomas case pertaining to the reservation
under art. 16(1).
 Art. 16(4) isn’t an exception to art. 16(1), rather only a peculiarity of
the same. The latter could have the same impact in the absence of the
former.
 Art. 16(4) is exhaustive of the provisions made in favor of a backward
class of citizens & no further provisions are required to be made.
 Reservation cannot be made on the basis of economic criteria alone. It
hence quashed the 10% reservation made only on an economic basis.
 The court identified 3 criteria for ascertaining backwardness – social,
educational and economic backwardness.
 The creamy layer should be excluded from the benefit of reservation.
It is done so that those truly deserving of reservation may have a better
chance of acquiring it. It is important here to note that those excluded
out as being a part of the creamy layer must be both socially and
economically forward. Howsoever the court left it upon the
government to decide the test to ascertain the creamy layer.
 The total reservation mustn’t exceed 50% in a single year and
representation must be made keeping in mind that it should be
‘adequate’ in nature and not ‘proportional’.
 The court has also divided reservation into the vertical and horizontal
reservation. While SC/ST and OBC reservations fall under the former
category, reservations for disabled and women fall under the latter
category.
 Overruling the judgment in Rangacharithe court observed that
reservation applies only to an appointment at the initial stage and not
any further.
 A certainlist of jobs was identified wherein no reservation could be
made.

Constitutional Amendments and Post Indra Sawhney

 After the Indra Sawhney judgment, 2 amendments soon followed through, which in
effect may be regarded to have nullified the somewhat harsh pronouncement made by
the SC.

Article 16(4A)
 In the Indra Sawhney judgment, the court had given the government a period
of five years to wind up with the existing system of reservations that extend
after the initial appointment phase.
 The government within the expiry of such period brought out the 77th
Constitutional Amendment that brought into effect reservation in promotion
for the SC/ST’s.
 It, however, must be noted that art. 16(4A) provides reservation only to
SC/STs and not OBCs.
 Lastly art. 16(4A) is only enabling in nature and neither obligatory on the state
nor enforceable fundamental right.

Promotion & Seniority

In the Case 16: Union of India v. Virpal Singh Chauhan

The court reiterated the position as observed in the Indra Sawhney case pertaining to
the limiting ofreservation to only the initial phase of appointment.

Case 17: Ajit Singh Januja v. the State of Punjab

The court held that when it came to filling a reserved seat in appointment a reserved
candidate will be preferred and when it came to filling a general seat, a general
candidate will be preferred. The court also identified the catch up rule.

85th Constitutional Amendment, 2002

 Provided for the application of the concepts of ‘consequential seniority’ &
‘catch-up rule’ in the reservations provided for SC/ST in government jobs
with retrospective effects.

Case 18: M. Nagaraj v. Union of India, 2006

  The amendments to art. 16(4) [4A & 4B] along with 77th,85th,81st& 82nd
Amendments were challenged.
 The court identified that it wasn’t mandatory for the government to provide
reservations, rather the rule is only enabling in nature.
 Furthermore, the government is required to show data highlighting
backwardness & inadequacy in representation. It must also be followed by
administrative efficiency.
 The 50% reservation ceiling was upheld

Article 16(4B) – 81st Constitutional Amendment, 2000

 The court held that unfilled reserved vacancies in a year are to be carried
forward to the subsequent years (until 3 years) but be treated distinctively
from the vacancies of that year.
 It was the opinion of the government that the 50% reservation ceiling as
iterated in the previous judgments are meant for normal vacancies and not
backlog ones.
 The amendment in effect negated both the Indra Sawhney &Ajit Singh
Judgement.

Case 19: Ashok Kumar Thakur v. Union of India

Children of IAS, IPS (belonging to the reserved category) cannot be considered for
reservation – Highlights social and economic forwardness.

Case 17: Ajit Singh Januja v. the State of Punjab

The court held that when it came to filling a reserved seat in appointment a reserved
candidate will be preferred and when it came to filling a general seat, a general
candidate will be preferred. The court also identified the catch-up rule
Therefore in the 85th constitutional Amendment;

In 2001, Parliament negated the Catch-Up Rule that the Court had introduced
in Virpal Singh (1995) and Ajit Singh (1996). In the 85th Amendment, Parliament
amended Article 16(4A) and introduced the principle of Consequential Seniority to
promoted SC/ST candidates.