CIA III

FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

TITLE- EQUALITY OF OPPORTUNITY IN THE MATTERS OF PUBLIC

EMPLOYMENT

Submitted by:

MANALI SHRIVASTAVA

Reg no. 2157037

1 LLM (CAL)
INTRODUCTION
Public employment guarantees that the general populace has the opportunity to participate in the
affairs of the state. Though it may be regarded as a new type of property 1 or national wealth2 in
theory, public employment requires equal participation in order to distribute advantages or
powers. The representation of many groups and interests is a component for effective
management. All parts of society should have an equal and effective voice in the activities and
governance of the country in terms of making democracy and national unity a reality.3

The right to equality is one of the rights guaranteed to all Indian citizens under the country's
constitution. Article 16 addresses the issue of equal opportunity in public employment. Equal
opportunity is a term with several multiple meanings, and there is no clarity on what it implies
exactly. The Indian Constitution has given this provision a broad interpretation. The principles of
Equal Employment Opportunity (EEO) relate to:

1. Access to jobs

2. Employment conditions

1
According to Reich, government employment is a new form of property. He says :
"Government is a gigantic syphon. It draws in revenue and power, and pours forth
wealth: money, benefits, services, contracts, franchises, and licenses. Government
has always had this function. But while in early times it was minor, today's distribution
oflargess is on a vast, imperial scale." Charles A. Reich, "The New Property", 73
Yale L.J. 733 (1964).
2
ustice Chinnappa Reddy holds the view that public employment opportunity is a national
wealth in which all citizens are entitled to share and that no class of people can
monopolise public employment in the guise of efficiency or other ground. State of
Maharashtra v. Chandrabhan, (1983) 3 S.C.C. 387 at p. 390. Similarly, Professor
Sivaramayya also shares the view that employment constitutes a new form of wealth in
India, perhaps, next in importance only to ownership of agricultural land. B.
Sivaramayya, "Equality and Inequality : The Legal Framework", in Andre Beteille
(Ed.), Equality and Inequality: Theory and Practice, Oxford University Press, Delhi,
(1983), p. 29 at p. 39.
3
Indra Sawhney v. Union of India, 1992 S.C.C. (L & S) Supp.1 at p. 216
Justice Sawant further said : "The trinity of the goals of the Constitution, viz.,
socialism, secularism and democracy cannot be realised unless all sections of the society
participate in the State power equally, irrespective of their caste, community, race,
religion and sex.... "Id. at p. 214.
3. Workplace relationships 

4. Performance appraisal and assessment

5. The chance for training and advancement in one's work.4

"Article 16 is an example of the general rule being implemented with specific regard to the
chance for State appointments. It states that in matters pertaining to employment or appointment
to any position under the State, all citizens shall have equal opportunity.

"If it stood alone, all the backward communities in a society with an unequal fundamental
socioeconomic structure would fall to the wall; the aforementioned rule of equality would remain
simply a utopian notion unless it was given a practical content... That is why, in Art. 16, clause
(4) was added by the framers of the Constitution.

The term "nothing in this article" is a legislative device used to highlight that the power provided
thereunder is not limited in any manner by the primary provision, but rather lies outside of it. It
hasn't really made an exception, but it has retained a power that's not limited by the rest of the
Article.

Article 16 guarantees equality of opportunity in the appointment of government servants. As

expressed by the Supreme Court in State of J. & K. v. K.V.N.T. Kholo, AIR 1974 5 S.C., equality
of opportunity means that every citizen shall be eligible for employment or appointment to any
position under the State based on his qualities and capability. As a result, Article 16 does not
preclude the state from prescribing the necessary credentials and screening tests for government
service recruitment.

SOME DETAILED DISCUSSION ON ARTICLE 16

4
M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009)
5
State of J. & K. v. K.V.N.T. Kholo , AIR 1974 S.C.
 (1) In matters relating to employment or appointment to any post under the State, all citizens
deserve equal opportunity. The restriction only applies to jobs or posts held by the
government. i.e. the person in a role of state subordination. As a consequence, the clause
does not preclude the state from creating the necessary qualifications for government
service recruitment, nor does it preclude the authority from creating other conditions of
appointment that are good for maintaining adequate discipline among the workers.

Physical health, sense of discipline, moral purity, and allegiance to the state may be among
the requirements mentioned, in addition to psychological superiority. 6 All matters relating to
employment, both prior to and subsequent to the employment, which are incidental to the
employment and form part of the terms and conditions of such employment should be
included in the expression "matters relating to employment and appointment."7

As a result, the guarantee in clause (1) will also include (a) initial appointments, (b) promotions,
(c) termination of employment, (d) pay, periodic increments, leave, gratuity, pension, and age of
superannuation, among many other things. Section 16 also covers the principle of equal payment
for equal effort (1). In the case of M Thomas v State of Kerala 8, Justice V.R Krishna Iyer exact
definitions that the benefits of reservation were, for most part, snatched up by the top creamy
layer of the backward classes or classes, keeping the weakest among the weak always weak and
leaving the fortunate layers to consume the entire cake.

(2) No citizen shall be ineligible for, or discriminated against in respect of, any job or office
under the State purely on the basis of religion, race, caste, sex, descent, place of birth,
residence, or any combination of these elements. Religion, race, caste, sex, descent, place
of birth, residence, or any mixture of these are prohibited debate subjects. The wording
"any job or office under the State" make it apparent that Article 16(2) exclusively applies
to positions in government.

The Supreme Court declared in K.C. Vasanth Kumar v. State of Karnataka 9, AIR 1985 S.C.
1495, that reservations for backward classes must be based on the mean test. It has also been
6
Mahendra P. Singh, V. N. Shukla’s Constitution of India 220-223 (11th ed., 2008)
7
Ibid
8
N.M Thomas v State of Kerala,1976 AIR 490, 1976 SCR (1) 906
9
K.C. Vasanth Kumar v. State of Karnataka , AIR 1985 S.C. 1495
suggested that the reservation policy be reviewed every five years or so, and if a class has
advanced to the level where it no longer takes reservations. The name of this backward class
should be taken off the list.

Indira Sawhney & Ors. v. Union of India10 was upheld by the Supreme Court (AIR 1993 SC 477)

1. Supported the implementation of a separate reservation system in central government

positions for other backward groups.

2. Creamy layer and other backward classes were ordered to be denied reservation privileges.

3. Ordered that reservations be kept to a limit of 50%.

4. Separate reservations for economically deprived advanced castes were declared invalid.

Nothing in this article prevents Parliament from legislative enactment requiring citizens of a
State or Union territory to reside within that State or Union territory prior to employment or
appointment to an office under the Government of, or any local or other authority within, that
State or Union territory. Mysore v M R Balaji 11  SC 649 AIR 1963 Except for Tamil Nadu (69
percent, under the 9th schedule) and Rajasthan (68 percent quota, including 14 percent for
advanced castes, post-Gujjar violence 2008), virtually all states have not crossed the 50 percent
limit. In 1980, Tamil Nadu stepped above the limit.

When Is The Reservation Allowed To The Backward Class?

The Government of India uses the phrase Other Backward Class (OBC) to classify castes that are
educationally and socially disadvantaged. Together with Scheduled Castes and Scheduled Tribes,
it is one of India's official population categories (SCs and STs). The more immediate question is
whether affirmative action programmes based on irrelevant criteria like caste and religion should
be allowed to take priority over merit and efficiency criteria.

10
Indira Sawhney & OR’s v. Union of India AIR 1993 SC 477
11
M R Balaji v Mysore AIR 1963 SC 649
"Injustice arises when equals are treated unequally, and when unequals are treated equally,"
argues Aristotle. Choosing the proper dispersion basis for making a preference is fraught with
problems. Individual need, status, merit, or entitlement have all been suggested as viable bases
for benefit distribution in appropriate circumstances.12

The categorization of scheduled castes and scheduled tribes as a class on the basis of which the
classification could be justified as just and reasonable within the meaning of Articles 15(1) and
16(1) has been highlighted in Achill Bharitaya Soshit Karamchari Sangh because these classes
stand on a substantially different footing from the rest of the Indian community in our
Constitution.

Other weaker groups, in his opinion, do not refer to other 'backward classes,' but rather
economically and educationally depressed categories similar to Scheduled Castes and Scheduled
Tribes. To put it differently, in his opinion, the classification of Scheduled Castes and Scheduled
Tribes as a special category might be justified under Article 15(1) and Article 16(1), however
classification based on backward classes could need to be confirmed by Article 15(4) and 16(1).
(4).

Is article 15(4) & article 16(4) exceptions?

On a basic reading of Articles 15 and 16, one might conclude that clause (4) of Article 15 is an
exception to the rest of that article's requirements as well as clause (2) of Article 29, and that
clause (4) of Article 16 is an exception to the rest of that article's provisions. In other words,
while Article 15's clause (4) permits what the rest of the article or Article 29's clause (2)
prohibits, Article 16's clause (4) permits what the rest of the article prohibits.

12
P.K.Tripathi,Comparative constitutional law(2nd ed. ,2011)
This was, in reality, the Supreme Court's initial view as well. This impression persisted until
some courts in the case of State of Kerala v. N.M. Thomas 13 ruled that clause (4) of Article 16
was not an exception to clauses (1) and (2) of that article. In A.B.S.K. Sangh v. Union of India 14,
Chinnappa Reddy, J. repeated this position, much more strongly, in his concurring opinion, and
it was finally recognised by the Court in Indra Sawhney v. Union of India15 (the Mandal case).

CONCLUSION
The phrase "equality of opportunity" has widespread public support among citizens of modern
societies. As looked at closely, equality of opportunity is divided into several different ideals,
some of which are fundamentally opposed. It's disputed which, if any, of these ideals are morally
acceptable, and which, if any, should be enforced by coercion. The ideal of a society in which
people are not prejudiced against for their race, ethnicity, religion, sex, or sexual orientation is
widely held as desirable in and of itself. For many individuals, the ideal is more compelling than
any argument made in support of it as a matter of fairness.

13
N.M Thomas v State of Kerala ,1976 AIR 490, 1976 SCR (1) 906
14
A.B.S.K. Sangh v. Union of India, 1981 AIR 298, 1981 SCR (2) 185
15
Indra Sawhney v. Union of India, AIR 1993 SC 477