Equality of opportunity in matters of public employment. Scope • It is applicable to all citizens in matters of employment or appointment to any post under State.
• ARTICLE 16 does not prevent the State
from prescribing the necessary qualification and selective tests for recruitment for Government services. • The qualifications prescribed may, besides mental excellence, include physical fitness, sense of discipline, moral integrity, loyalty to the State. Where the appointment requires technical knowledge, technical qualification may be prescribed. • It is to be noted that under Art 16 the guarantee against discrimination is limited to employment and appointment. Art 15, however, is more general and deals with all cases of discrimination which do not fall under Art 16. • 16(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
• 16 (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. • Clauses 1 & 2 of Art 16 lay down the general rule that no citizen can be discriminated against or be ineligible for any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or resident. • Art 16 (1) and (2) applies only in respect of employment or office under the State. • Whereas clauses (3), (4), (4-A), (4-B) and 5 of Art 16 provide four exceptions to this general rule of equality of opportunity. • Case- C. B Muthamma v. Union of India AIR 1979 SC 1868 • Facts of the case-a provision in service rules requiring a female employee to obtain permission of the govt in writing before marriage is solemnised. • And denying her the right to be promoted on the ground that the candidate was married woman. • The petitioner was denied promotion to Grade I of the foreign Service only on this ground • It was held to be discriminatory against woman and hence unconstitutional. • Equal pay equal work- Case Randhir Singh v. Union of India AIR 1982 SC 879- it was held that no doubt it is a constitutional obligation upon a State to provide equal pay for equal work but this principle of equal pay for equal work has no mechanical application in every case of similar work. There can be two scales of pay in the same cadre of persons performing the same or similar work or duties.
• More often functions of two posts may appear to be
the same or similar but there may be difference in degrees in the performance. The quantity of work may be same but the quality may be different. • Clause 2- Descent and Residence • Two additional grounds descent &residence not included in Art 15 have been added to Art 16(2). • No discrimination can be made on these grounds. • This is just to assure that parochialism(narrow-mindedness) and nepotism (influence of favouring relatives or friends) is eliminated in the matters of appointment in Government services. • to avoid Punjab for Punjabis and Bengal for Bengalis as these slogans are most unhealthy for growth of a truly federal democracy. • Descent is another spot for individual discrimination. • Case- Dasaratha Rama v. State AIR 1961 SC 564- the SC has held that the office of the village Munsif was an office under the State, sec 6(1) of the Madras Act which required the collector to select persons from among the last holder of the office discriminated on the grounds of descent only and hence void for contravening Art 16(2). • Pardeep Jain v. Union of India (1984) 3SCC 654-residence can be basis for reservation up to some extent but if violates art14 then void. • Exceptions to Art 16(1) and (2) • 16(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment • There may be good reasons for reserving certain posts in State for the residents only.
• This Article empowers parliament to regulate by
law the extent to which it would be permissible for a state to depart from the above principle.
• Parliament passed Public Employment
(Recruitment as to Residence)Act 1957.-No one will be disqualified on the ground that one is not the resident of a particular state. However, the Act makes an exception for employment in HP, Manipur, Tripura and Telangana due to backwardness of these areas. • Case- Narsimha Rao v. State of A.P AIR 1970 SC 422 -it was held by the SC that the word State in Art 16(3) signifies the whole of the State and not parts of the State so residential qualification can be prescribed for the whole of the State. 16 (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. • Two conditions-a)the class of citizens is backward (includes SC and ST) and • b)said class is not adequately represented in services of State. • 2nd test cannot be the sole criterion. • Case-Balaji v. State of Mysore AIR 1963 SC 649-caste of person cannot be sole test for determining that caste is backward or not • Poverty ,habitation , place of habitation all are relevant factors • Though the caste of a person cannot be the sole test for determining the backwardness of a class, but if an entire caste is found to be socially and educationally backward it may be included in the list of backward classes. However, the court said that it does not mean that once a caste is considered backward class then it should to be backward for all the times. The govt 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. • Devadsan v. Union of India AIR 1964 SC 179 • Court was required to adjudge the validity of the ‘Carry forward’ Rule. • The ‘Carry Forward’ rule envisaged that in a year, 17.5 percentage posts were to be reserved for schedule Castes/Tribes; of all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years. • The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota & only 16 posts were left for others. • This meant reservation up to 65% in the third year, & while candidates with low marks from the S.C & S.T were appointed, Candidates with higher marks from other were not taken. • Supreme Court held- • More than 50% reservation of posts in a single year would be unconstitutional as it per se destroys Article 16(1). • In the name of advancement of Backward Communities, the F.Rs of other Communities should not be completely annihilated. • Article 16(4) is an exception to Article 16(1). • Article 16(4) should not be interpreted so as to nullify or destroy the main provision. • Reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. • State cannot ignore the F.Rs of the rest of the Citizens. State of Kerala v. N.M Thomas AIR 1976 SC 490 • Facts • Promotion from the cadre of lower division clerks to the higher cadre of upper division clerks depended on passing a test within two years. • For S.C & S.T extension could be granted for a longer period. • These classes were given two extra years to pass the test. • This exemption was challenged as discriminatory under Article 16(1). • The ground of challenge was that – Article 16 permitted only reservation in favour of backward classes but it was not a case of reservation of posts for S.C & S.T under Article 16(4) & that these persons were not entitled to any favoured treatment in promotion outside Article 16(4). • The majority accepted the view of Subba Rao,J. (Dissenting opinion in Devadasan). • Article 16(4) is not in the nature of an exception to Article 16(1). • “It is a facet of Article 16(1) which fosters & further the idea of equality of opportunity with special reference to an under privileged & deprived class of citizens.” • Article 16(1) itself permits reasonable classification for attaining equality of opportunity assured by it. • Article 16(4) should be read along, and in harmony with article 16(1). • Indeed even without Article 16(4), the State could have reserved posts for backward classes. • Article 16(4) merely puts the matter beyond any doubt or controversy in specific terms. • The SC by a majority of 5 to 2 upheld the constitutional validity of the impugned rule and the order made thereafter. • The Court held that, giving preference to the employees belonging to SC/ST by allowing them an extended period of two years for passing the departmental test for promotion, was a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens. • The court explained that Art 16(1) envisaged equality between members of the same class of employees but not equality between members of separate, independent classes. A.B.S.K Sangh (Rly) v. Union of India AIR 1981 SC 298 • S.C reiterated the Thomas proposition that under Article 16(1) itself, the State may classify, “based upon substantial differentia, groups or classes” for recruitment to public services, and “this process does not necessarily spell violation of Article 14 & 16. • Article 16(2) expressly forbids discrimination on the basis of ‘caste’. S.Cs & S.Ts are not castes within the ordinary meaning of caste. These are backward human groups. • The “carry forward” rule for three years was not held bad. Indira Sawhney v. Union of India AIR 1993 SC 477 • Also known as Mandal Commission Case. • On January1, 1979 under the Chairman ship of B.P.Mandal, the second Backward Class Commission under Article 340 was appointed by the Union Government headed by Prime Minister Morarji Desai. • One of the major recommendation made by the commission was that, besides the SCs and STs, for other backward classes which constitute nearly 52% component of the population, 27% government jobs be reserved so that that total reservation for all, SC,ST and OBCs, amount to 50%. • No action was taken on the basis of the Mandal Report for long after it was submitted, except that it was discussed in the Houses of Parliament twice, once in 1982and again in 1983. • On August 13, 1990, the V.P.Singh Government at the Centre issued an office memorandum accepting the Mandal Commission recommendation and announcing 27% reservation for the socially and educationally backward classes in vacancies in civil posts and services under the Government of India. • This memorandum led to widespread disturbances in the country. • The order was challenged in the Supreme Court. • A three judge bench refused to interfere on the ground that the matter was a political one. • Public controversy and disturbances continued. • The Supreme Court Bar Association moved a petition. • In response Supreme Court constituted a 5 Judge Bench. • The early order of the Supreme Court and the O.M were stayed. • In the meanwhile the Government changed after General Elections. • In 1991, the Narsimha Rao Government modified the above memorandum in two respects: • One, the poorer sections among the backward classes would get preference over the other sections; • Two, 10% vacancies would be reserved for other “economically backward sections” of the people who were not covered by any existing reservation scheme. The majority opinion of the SC on various aspects of reservations provided in Art 16 (4) may be summarised as follows: 1. Backward class of citizen in Art 16 (4) can be identified on the basis of caste and not only on economic basis. 2. Art 16 (4) is not an exception to Art 16(1). It is an instance of classification. Reservation can be made under Art 16(1). 3. Backward Classes in Art 16 (4) are not similar to as socially and educationally backward in Art 15 (4). 4. Creamy layer must be excluded from backward classes. 5. Art 16 (4) permits classification of backward classes into backward and more backward. 6. A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. 7. Reservation shall not exceed 50%. 8.Reservation can be made by executive order. 9. No reservation in promotions. 10. Permanent Statutory body to examine complaints of over inclusion/under inclusion. 11.Disputes regarding new criteria can be raised only in the SC. Position After Mandal’s Case
16(4A) Nothing in this article shall prevent the State from
making any provision for reservation[in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
• 77th Constitutional Amendment Act,1995-
means reservation in promotions will continue even after mandal case. 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.
• Constitution(81st amendment Act) 2000-
• Reservation in promotions: Catch up Rule Negated- 85th Amendment , 2001 • Case- Ashok Kumar Gupta v. State of UP AIR1997 SC 251- it was held by SC that Art 16(4A) read with Art 16(1) and 14, guaranteed a right to promotion to dalits and tribes as a fundamental right where they had not got adequate representation consistently with the efficiency of administration. • Case- Jagdish Lal v. State of Haryana AIR 1997 SC 2366 the SC clarified that when reserved candidates (Dalits or tribals) had been promoted earlier to a general candidate, their seniority in the new cadre would rank from the date of their joining on promotion. • Case- Ajit Singh v. State of Punjab AIR 1999 SC 3471- the above cases were overruled. The court explained that the primary purpose of Art 16(4) and Art (16 4A) was to provide due representation of certain classes in certain posts. The Court held that the constitution has laid down in Art 14 and 16(1) the permissible limits of affirmative action by way of reservation under Art 16(4) and 16 (4A). While permitting reservations at the same time, it has also placed certain limitations by way of Art 14 and 16(1) so that there is no reverse discrimination. The Court ruled that both Articles 16(4) and 16 (4A) did not confer any fundamental right nor did they impose any constitutional duties, but were only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. • To negate the effect of the above judgment Art 16(4) as been amended by the Constitution 85th amendment Act, 2001 in place of words in matter of promotion to any class, the words in matter of promotion with consequential seniority to any class have been substituted. 16 (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. 17-Abolition of Untouchability “Untouchability’’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability’’ shall be an offence punishable in accordance with law. Parliament enacted Untouchability (Offences) Act, 1955 which was amended in the year 1976 in order to make the law more stringent to remove untouchability from the society. and was renamed as The Protection of Civil Rights Act, 1955. The Protection of Civil Rights Act prescribes punishment which may extend to imprisonment up to six months and also with a fine which may extend to five hundred rupees or both. • Case- Asiad project Workers (People’s Union for Democratic Rights v. Union of India) AIR 1982 SC 1473- The SC has held that the fundamental right under Art 17 are available against private individuals and it is the constitutional duty of the State to take necessary steps to see that these fundamental rights are not violated. • Case- State of Karnataka v. Appa Balu Ingale AIR 1993 SC 1126- the respondents were tried for offences under the protection of Civil Rights Act, 1955 and convicted and sentenced to undergo simple imprisonment for one month and a fine of Rs 100 each. The HC acquitted them. The SC upheld • the conviction and held that the object of Art 17 and the Act is to liberate the society from blind and ritualistic adherence and traditional belief which has lost all legal or normal base. • 18. Abolition of titles- (1) No title, not being a military or academic distinction, shall be conferred by the State. (2) No citizen of India shall accept any title from any foreign State. (3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State. (4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State. The recent conferment of titles of ‘Bharat Ratna’, ‘Padma Vibhushan’, ‘Padma Shri’, are not prohibited under Art 18 as they merely denote State recognition of good work by citizens in the various fields of activity. These awards seems to fit in within the category of academic distinctions. Case- Balaji Raghavan v. Union of India 1996 1 SCC 361- the petitioners challenged the validity of these national award and requested the Court to prevent • the Government of India from conferring these Awards. It was contended that the National awards are titles within the meaning of Art 18 of the Constitution. It was also argued that these awards are being grossly misused and the purpose for which they were instituted has been diluted and they are granted to persons who are undeserving of them. • The SC held that the National awards such Bharat Ratna, Padma Bhusan and the Padma Sri are not violative of the principle of equality as guaranteed by the provisions of the Constitution. The National Awards do not amount to titles within the meaning of art 18 and therefore not violative of Art 18. The theory of equality does not mandate that merit should not be recognised.