Page |1

A PROJECT REPORT
ON

EQUALITY OF OPPORTUNITY IN
MATTERS OF PUBLIC
EMPLOYMENT

SUBMITTED TO SUBMITTED BY
DR. MUJIBUR REHMAN SMRITI SRIVASTAVA
LLM – Ist SEMESTER
ROLL NO. - 2
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TABLE OF CONTENTS
1. INTRODUCTION…………………………………………..…..3

2. INGREDIENTS OF ARTICLE 16…………………………….5

• Article 16(1)……………………………………………….5

• Equal pay for Equal work……………………………….5

• Article 16(2)……………………………………………….6

• Article 16(3)……………………………………………….6

• Article 16(4)……………………………………………….7

• Reservation of Schedules Castes and Scheduled Tribes..8

• Mandal Commission……………………………………....9

• Article 16(4A)……………………………………………..12

• Article 16(4B)……………………………………………..14

• No Fundamental Right to reservation in promotion…..18

• Article 16(5)……………………………………………….18

• Article 16(6)……………………………………………….19

3. Conclusion…………………………………………………….....20

4. References ……………………………………………………….21
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INTRODUCTION

Right to Equality is one of the basic fundamental rights that the constitution of India guarantees
to all the citizens of the country. The Indian Constitution contains provisions for Right to
Equality in Articles 14 to 18. The Preamble of the Indian Constitution also provides for the
right to equal status and opportunity to the citizens of India. Right to Equality forms part of the
basic structure of the Indian Constitution which can’t be amended. It is one of the six
fundamental rights which is provided to the citizens of India by the Constitution. The Right
ensures equality before the law and equal protection of the law irrespective of race, religion,
caste, place of birth or gender of the citizens. Article 14 forms the foundation of Articles
16, 17, 18 of the Indian Constitution.

Article 16 deals with the equality of opportunity in matters of public employment. Equal
opportunity is a term which has differing definitions and there is no consensus as to the precise
meaning. The Constitution of India has given a wide interpretation of this article. Equal
Employment Opportunity principles apply to:

• Access to jobs

• Conditions of employment

• Relationships in the workplace

• The evaluation of performance and

• The opportunity for training and career development.1

The term “equal opportunities” is very subjective in nature and various jurists have given
different interpretations to it. However, in all the definitions, it is clear that this term not only
talks about removing discrimination but also put an obligation on the state to create
opportunities for the weaker or the backward section of the society.

The state is empowered to generate opportunities through some affirmative actions.

Affirmative action is an instrument to achieve social justice. Under this action, the state

1
M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009
 Page |4

provides some quota or some benefits to a particular backward or minority group to improve
their status. It is also popularly called positive discrimination.

It is important to note that Article 16 only guarantees equality in the matter of state services.
As per this Article, if a person possesses the prescribed qualification for a post, then he should
get it without any discrimination.

“Article 16 is an instance of the application of the general rule with special reference to the
opportunity of appointments under the State. It says that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office under the State.

“The expression “nothing in this article” is a legislative device to express its intention in a most
emphatic way that the power conferred thereunder is not limited in an what by the main
provision but falls outside it. It has not really carved out an exception but has preserved a power
untrammelled by the other provisions of the Article.”

What Article 16 guarantees is equality of opportunity in matters of appointment in State

services. Equality of opportunity connotes that every citizen shall be eligible for employment
or appointment to any office under the State according to his qualifications and capability, as
held by the Supreme Court in State of J. & K. v. K.V.N.T. Kholo2, AIR 1974 S.C. Article 16
therefore does not prevent the State from prescribing the necessary qualifications and selective
tests for recruitment of government services.

2
AIR 1974 S.C.
 Page |5

INGREDIENTS OF ARTICLE 16
There are various elements of Article 16, they are as follows,

ARTICLE 16(1)-
Article 16(1) states ‘There shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State’. The provision of equality is only
applicable to the employment or offices which are held by the State. The State is still free to
lay down the requisite qualifications for the recruitment of employees for the Government
services. The Government can also pick and choose applicants for the purpose of employment
as long as the applicants have been given an equal opportunity to apply for the Government
service.

EQUAL PAY FOR EQUAL WORK

The principle of equal pay for equal work is enshrined under Article 16(1) as it puts an
obligation on the state to ensure equality in all matters in relation to employment.

In Randhir Singh v Union of India3 it has been held that equal pay for equal work, although
not expressly declared to be fundamental right is clearly a constitutional goal under Article
14,16,39(c) of the Constitution and can be enforced by courts in cases of unequal scales of pay
based on irrational classification. This principle has been followed in a number of cases4 and
has virtually become a fundamental right. The doctrine of equal work is equally applicable to
temporary or casual employees performing the same duties and functions.

This case was a landmark judgment on the constitutional validity of equal pay for equal work.
Equal pay for equal work is also a Directive Principle in the Indian Constitution. In the said
case the Supreme Court grounded equal pay for equal work under Article 14 of the Constitution
and stated that in cases where all “relevant considerations are the same, the government cannot
deny equal pay for equal work simply by performing the bureaucratic manoeuvre i.e. by
separating the workers into different posts, or to different departments. The example of drivers
was taken to decide the case. According to the Court “there is not even the slightest doubt that
the drivers in the Delhi Police Force perform the same functions and duties as other drivers in

3
AIR 1982 SC 879
4
D.S Nakara v. Union of India, AIR 1983 SC 130
 Page |6

service of the Delhi Administration and the Central Government”, and hence, equal pay for
equal work was attracted.5

ARTICLE 16(2) –
Article 16(2) states ‘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’

Article 16(2) lays down the grounds on which the citizens should not be discriminated against
for the purpose of employment or appointment to any office under the State. The prohibited
grounds of discrimination under Article 16(2) are religion, race, caste, sex, descent, birthplace,
residence, or any of them. The words ‘any employment or office under the state’ mentioned in
clause 2 of Article 16 implies that the said provision refers only to public employment and to
the employment in the private sector.

It is to be noted that the two additional grounds “descent” and “residence” not included in
Article 15 have been added to Article 16(2). No discrimination can be made on these grounds.
This is just to assure that nepotism is eliminate in the matters of appointment in government
services. In Dasaratha Rama Rao v. State6, the Supreme Court has held that the office of the
village munsif was an office under state; and Section 6(1) of 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 Article 16(2)

ARTICLE 16(3)
Article 16(3) states ‘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.

Article 16(1) and (2) lay down provisions for equal opportunity of employment in the public
sector. However, it is stated in clause 3 of Article 16 that nothing in this article shall prevent
Parliament from making any law which prescribes to the citizens who are appointed to any

5
Randhir Singh v Union of India AIR 1982 SC 879
6
AIR 1961 SC 564
 Page |7

office under the State in regard to any requirements as to residence within that State or Union
territory prior to employment or appointment to any office under the State.

Article 16(3) is an exception to clause (2) of this Article which forbids discrimination on the
ground of residence. This Article empowers the union parliament and the state legislature to
make any law in the matter of public employment for a Particular class in their respective
jurisdictions. In other words, they can make any law for an office falling under the state, local
or in the union territory.

However, while making laws, the states need to abide by the provision of the Constitution and
particularly Article 16. The state needs to ensure that there shall be no discrimination and if it
wants to give reservation then it shall be based on some reasonable differentia.

Parliament has passed the Public Employment (Requirement as to Residence) Act, 1957. It
provides that 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 Himachal Pradesh, Manipur,
Tripura, and Telangana. This exception is for period of five years and because of backwardness
of these areas. In Narsimha Rao v. State pf A.P., the Supreme Court declared part of the Act
unconstitutional which prescribed ‘residence’ as qualification for government services in
Telangana region of Andhra Pradesh. The word “State” in Article 16(3) signifies the whole
state and not parts of state. Though Parliament can reserve certain posts in Andhra Pradesh for
Residents of the State, it cannot reserve posts in Telangana for residents of Telangana only,
which is part of the State.

ARTICLE 16(4) –
Article 16(4) states “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”.

Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It
empowers the State to make special provision for the reservation of appointments of posts in
favour of any backward class of citizens which in the opinion of the state are not adequately
represented in the service under the State. thus Article 16(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.
 Page |8

The second test cannot be the sole criterion.

General Manager Southern Railway vs Rangachari7, the Supreme Court held - The
promotion to a selection post is also included in the matters relating to employment. Art.16(1)
guarantees equality of opportunity to all citizens who enter service even in regard to promotion.
The condition precedent for the exercise of the powers conferred by Art.16(4) is that the State
ought to be satisfied that any backward class of citizens is not adequately represented in its
services. This condition precedent may refer either to the numerical inadequacy of
representation in the services or even to the qualitative inadequacy of representation. The
advancement of the socially and educationally backward classes requires not only that they
should have adequate, representation in the lowest rung of services but that they should aspire
to secure adequate representation in selection posts in the services as well.

In Balaji v. State of Mysore8, the Supreme Court has held – the ‘caste’ of a person cannot be
the sole test for ascertainment whether a particular class is backwards 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 from the list of Backward Classes.9

RESERVATION OF SCHEDULED CASTES AND SCHEDULED TRIBES

Article 16(4) must be interpreted in the light of Article33510 which says that the claims of the
Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the
maintenance of efficiency of administration of administration. The reservations for backward
classes should not be unreasonable. It should be considered having regard to the employment
opportunities of general public.

7
AIR 1962 SC 36
8
AIR 1963 SC 649
9
State of A.P. v. Balram, AIR 1972 SC 1375
10
Article 335 Claims of Scheduled Castes and Scheduled Tribes to services and posts: The claims of the
members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with
the maintenance of efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State.
 Page |9

The scope of Article 16(4) was considered by Supreme Court in Devdasan v. Union of India11.
In that case the constitutional validity of the “carry forward rule” framed by the government to
regulate appointment of persons of backward classes in government services were involved.
This rule provided that I sufficient number of candidates belonging to Scheduled Castes and
Scheduled Tribes were not available for appointment to the reserved quota, the vacancies that
remained unfilled would be treated as unreserved and filled by the fresh available candidates;
but a corresponding number posts would be reserved in the next year for Scheduled Castes and
Scheduled Tribes in addition to their reserved quota for the next year. The result was to carry
forward the unfulfilled balance, that is, unfilled vacancies in the second and third years at one
time. In actual effect 68 per cent of vacancies were reserved for Scheduled Castes and
Scheduled Tribes. The Supreme Court by majority of 4 to 1 struck down the “carry – forward
rule” as unconstitutional on the ground that the power vested in Government under Article
16(4) could not be exercised so as to deny reasonable equality of opportunity in matters of
public employment for members of classes other than backward. The court said that each year
of recruitment must be considered by itself and the reservation for backward communities each
year should not be excessive so as to create monopoly or to interfere unduly with the legitimate
claims of other communities. Accordingly, the court held that the reservation ought to be less
than 50 per cent, but how much less than half would depend upon prevailing circumstances in
each case.

In N M Thomas vs State of Kerala12 a 7-judge bench upheld by 5:2 majority the amendment
brought by State of Kerala to its service rules to grant exemption to members of SC/STs from
appearing in a departmental examination for promotion. The majority held that Article 16(4)
was not in the nature of an exception, and was a facet of equality under Articles 14 and 16(1).

In Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs Union of India13 the court upheld
the "carry forward rule" of the railway board in a selection of posts above 50% reservation,
allowing for "some excess"

Mandal Commission- Second Backward Classes Commission, popularly known as Mandal

Commission, prepared its report and gave recommendations for reservations for the SC/ST
community to the extent of 22.5% and to the OBC community to the extent of 27%. This was
because the Commission found the SC/ST community to constitute 22.5% of the population,

11
AIR 1964SC 179
12
AIR 1976 SC 490
13
(1981) 1 SCC 246
 P a g e | 10

while OBCs constituted 52% of the population. After this report was implemented, a
constitutional challenge was raised against it in Indira Sawhney Case.

The scope and extent of Article 16(4) has been examined thoroughly by the Supreme Court in
historic case of Indra Sawhney v. Union of India14, properly known as Mandal case. The court
clarified various aspects on which there were differences of opinion in various earlier
judgements.

The majority opinion of the Supreme Court can be summarised as follows :-

1. Backward class of citizen in Article 16(4) can be identified on the basis of caste and
not only on economic basis but caste alone cannot be the basis for consideration.

Neither the constitution nor the law prescribes the procedure or method of identification of
backward classes. Identification of backward classes can certainly be done with reference
to caste among, and alongwith other occupation groups of groups or with castes or with
some other groups. Caste will have to be considered among and alongside other criteria as
the test of backwardness. Caste alone cannot be taken into consideration for purposes of
identification of backward classes.

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

Reservation can be made under Article 16(1).

The majority held that Article 16(4) is not an exception to Article 16(1) but an independent
clause. Reservation can be made under clause (1) of article 16 on the basis of reasonable
classification. The court accordingly overruled its decision in Balaji vs state of Mysore, in
which it was held that Article 16(4) is ana exception to Article 16(1). The court approved
the decision in State of Kerela v. N.M. Thomas, where it was held that Article 16(4) is not
an exception of Article 16(1), but a facet of the doctrine of equality enshrined in Article 14
and permits reasonable classification just as Article 14 does.

3. Backward classes in Article 16(4) are not similar to as socially and educationally
backward in Article 15(4).
Clause (4) of Article 16 does not contain the qualifying words “socially and
educationally” as does Clause (4) of Article 15. Accordingly, the Court overruled the
Balaji case on this point in which it was held that the backward class of citizens in

14
AIR 1993 SC 477
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Article 16(4) is the same as the Socially and educationally backward classes, Scheduled
Castes and scheduled Tribes mentioned in Article 15(4).
4. Creamy Layer must be excluded from backward classes.
The majority held that while identifying the backward classes, the socially advanced
persons which is creamy layer among them should be excluded. The court directed the
government of India to set up a commission within four months from the decision
specifying the basis of applying the relevant and requisite socio-economic criteria to
exclude socially advanced persons that is, the creamy layer among backward classes.
5. Article 16(4) permits classification of backward classes into backward and more
backward classes.
Overruling Balaji’s case the court held the sub classification between backward classes
and more backward classes not unconstitutional. The classification is necessary to help
the more backwards classes, otherwise the advanced sections of backward classes might
take all the benefits of reservation.
6. A backward class of citizens cannot be identified only and exclusively with reference to
economic criteria.
To identify backward classes exclusively with reference to economic criterion would
defeat the very object of Article 16(4) to give adequate representation to backward
classes in the services. Article 16(4) is not aimed only at economic upliftment of
poverty. It is specifically designed to give due share in the state power to those who
have remained out of it mainly on account of their social and therefore, educational and
economic backwardness.
7. Reservation shall not exceed 50 per cent.
The maximum limit of reservation cannot exceed 50 percent. On this point the court
affirmed Balaji and Devdasan cases in which 50% rule was laid down and overruled
the State of Kerela v. N.M Thomas15 and K.C Vasant Kumar v. State of Karnataka
cases.
The court overruled Devdasan v. Union of India and held that that the ‘carry forward
rule’ is valid provided it should not result in breach of 50% rule.
The 50% limits can only be exceeded in extra ordinary situations prevailing in a far-
flung States (e.g., Nagaland, Tripura)
8. Reservation can be made by ‘Executive Order’.

15
AIR 1976 SC 490
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A ‘provision’ under Article 16(4) can be made by an executive order. It needs to be

made by Parliament or Legislature.
9. No reservation in promotions.
The majority held that the reservation under Article 16(4) cannot be made in
promotions. The reservation is confined to initial appointments. However, it shall not
affect promotions already made. Such reservations may continue for a period of five
years; within this period, the authorities will revise, modify or re issue the rules relating
to reservation. On this point the court overruled the following cases: General Manager,
Southern Railway v Rangchari16; State of Punjab v. Hira Lal17; Akhil Bhartiya
Shoshit Karamcgari Sangh v. Union of India18 and Comptroller and Auditor-
General of India, Gian Prakash v. K.S Jagannathan19. This is consistent with the
object enshrined in Article 335. At the initial stage, reservation can be made but once
they enter the service, efficiency demands, that these members too compete with others
and earn promotions like all others.
10. Disputes regarding new criteria can be raised only in the Supreme Court.
The Court clarified and directed that all objections to the criteria evolved by the central
and State Governments to exclude socially advanced persons, creamy layer, from other
backward classes would be preferred only before the Supreme Court and not before any
High Court or tribunal. Similarly, any challenging the validity, operation or
implementation of the office memorandum shall be filed only before Supreme Court
and not before any other court.

ARTICLE 16(4A)-
Since 1955 the Scheduled Caste and Scheduled Tribes have been provided with the facility of
reservation for the matter of employment and promotion under the office of State. The
honourable Supreme Court, in Indra Sawhney and Others vs. Union of India held that the
reservation of Government jobs under Article 16(4) is limited to the appointment of the citizens
belonging to the said classes and it cannot extend to a reservation in the matter of promotion.
However, the Court’s decision in the matter of promotion affected the citizens belonging to

16
AIR 1962 SC36
17
(1970) 3 SCC 567
18
(1981) 1 SCC 246
19
(1986) 2 SCC 679
 P a g e | 13

Scheduled Castes and Scheduled Tribes adversely as they were not represented well in
Government services. Article 16(4) contained the provision for reservation in appointment of
public offices. But after 50-60 years of commencement of constitution it was found that the
reservation to categories (Scheduled Castes and Scheduled Tribes) did not serve the appropriate
purpose, because due to their social backwardness and background they completed their
education in comparison to general students. As a result, they got appointment in late age and
they generally retire before getting higher post. It was argued by government that member of
Scheduled Caste and Scheduled Tribes generally failed to get the post of cabinet secretary due
to their less span of services and since it is the State’s duty to protect the interests of the
Scheduled Castes and Scheduled Tribes, the Government decided to continue the existing
policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes. In order to
carry out the practice which existed before the landmark judgment of Indra Sawhney and
Others vs. Union of India20, it was necessary to amend Article 16 of the Indian Constitution
by inserting a new clause (4A) in the said Article.

The parliament enacted the Constitution 77th Amendment Act, 1995 in order to bypass the
Court’s ruling on the point of no reservation in promotions in government service.

This Amendment added Clause (4A) to Article 16 which stated that ‘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’.

The Supreme Court in Union of India v. Virpal Singh Chauhan21 held the caste criterion for
promotion violative of Article 16(4) of the Constitution. The case was concerned with the
legality of the extension of reservation to the promotions in Railway Service which enabled
specified groups (SC and ST’s) not only to get jobs on their caste labels but also get promotions
on the same basis. The Supreme Court rigidly held that Seniority between reserved category
candidates and general candidates would continue to be governed by their panel position
prepared at the time of selection. Under Article 16(4) there is no uniform or prescribed method
of providing reservation. The extent and nature of reservation is a matter for the state to decide
having regard to the facts and requirement of each case. In Indra Sawhney’s case it has been

20
AIR 1993 SC 477
21
(1995) 6 SCC 684
 P a g e | 14

held that larger the concept of reservation takes within its sweep all supplemental and ancillary
provisions as also lessor type of Special provisions like exemptions concessions and relaxations
consistent no doubt with requirement of maintenance of efficiency of administration- the
administration of Article 335.Therefore its is open to State to provide that the candidate
promoted earlier by virtue of rule of reservation roster system shall not be entitled to seniority
over his senior in the feeder category and that as and when a general candidate who was senior
to him is promoted he will regain is seniority over the reserved candidate notwithstanding that
he is promoted subsequent to the reserved candidate. Thus ‘Catch up rule’ was laid down
under which senior general candidates who were promoted after SC/ST candidates would
regain their seniority over SC/ST candidates promoted.

In Ajit Singh Januja & Ors. vs State of Punjab22 the Supreme Court reiterated Catch up rule.
Virpal Singh’s case again upheld.

To nullify the judgement of supreme Court in above cases and end the effect of catch-up rule
Parliament passed 85th Constitutional Amendment Act, 2001. This amendment has substituted,
in Clause 4-A for the words “in matters of promotion to any class” the words “in matters of
promotion, with consequential seniority, to any class”. This amendment aims at extending the
benefit of reservation in favour of the S.C./S.T. in matters of promotion with consequential
seniority. That is from April 1995 when the Constitution 77th Amendment was enacted.

ARTICLE 16(4B)-
In Indra Sawhney v. Union of India, the Supreme Court has held that 50% limit shall apply
to current as well as to backlog vacancies and for discontinuation of special recruitment drive.
To nullify this judgement of 50% limit in backlog vacancies, Parliament passed 81st
Constitutional Amendment Act, 2000 which Article 16(4-B) which states that ‘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’.

22
1996 AIR 1189
 P a g e | 15

Article 16(4-B) was added with an aim to validate the Carry Forward Rule and to validate
backlog vacancies. The new clause provide that the unfilled vacancies would be treated as a
separate class and would be filled in succeeding year or years and will not be considered
together with vacancies of the year in which they are being filled up, even if the 50% limit
imposed in the Mandal case is crossed.

In M. Nagaraj v. Union of India 23 , the petitioner invoked Article 32 for a writ in the nature
of Certiorari to quash the 77th Constitutional Amendment Act 1995, which inserted Clause (4-
A) to Article 16, 81st Constitutional Amendment Act, 2000, which inserted Clause (4-B) to
Article 16, 82nd Constitutional Amendment Act, 2000 which added a proviso in Article 335 of
Indian Constitution and 85th Constitutional Amendment Act 2001 as being unconstitutional
and violative of Basic Structure. The main issue concerned the “extent of reservation”
(reservation within reservation). A five-judge Bench unanimously held that clause (4A) of
Article 16 is an enabling provision. It applies only to SC’s and ST’s. the said clause is extracted
out of Article 16(4). Therefore, Clause (4-A) will be governed by the two compelling reasons
“backwardness” and “inadequacy of representation” as mentioned in Article 16(4). If the said
two reasons do not exist then the enabling provision cannot come into force. The State can
make provision for reservation only if the two circumstances exist. The provisions of article
16(4A) and 16(4B) flow from 16(4) which do not alter the basic structure of Article 16(4) and
are valid.

Reservation in promotion can be allowed if three tests’ factors are shown: Quantifiable data
to Demonstrate backwardness; Demonstrate inadequacy of representation & Overall
efficiency of the administration should not get compromised. Government has to apply
cadre strength as a unit in the operation of the roster in order to ascertain whether a given group
is adequately represented in the service. The roster has to be post-specific with the inbuilt
concept of replacement rather than being based on vacancies. Direct recruitment to ensure
adequate representation of a backward category may be made at the discretion of the authority.
Backlog vacancies are excluded from the 50% limit. Reserved category candidates are entitled
to compete for general category posts, and will not be counted against the quota limit. Reserved
candidates are entitled to compete with the general candidates for promotion to the general
post.

23
AIR 2007 SC 71
 P a g e | 16

On their selection, they are to be adjusted in the general post as per the roster and the reserved
candidates should be adjusted in the points earmarked in the roster to the reserved candidates.
Each post must be marked for the particular category of the candidate to be appointed, and any
subsequent vacancy has to be filled by that category alone (replacement theory).

Width & Identity Test- in the matter of application of the principle of basic structure, twin
tests have to be satisfied, namely, the 'width test' and the test of 'identity'. The 'width test'
examines the boundaries of the amending power and checks whether the amendments obliterate
any constitutional requirement, such as the 50% ceiling for reservations, the concept of creamy
layer, the backwardness and inadequacy of representation, and the overall administrative
efficiency. The 'identity test' on the other hand, examines whether the amendment has altered
the identity of the Constitution beyond recognition.

In UP Power Corporation vs Rajesh Kumar24 UP Govt by R- 8-1 of 1991 Rules enforced in

2007 provided for consequential seniority in promotions to SC/STs by virtue of reservation.
The Supreme Court struck down the specific 1991 Rule on the ground that State Government
neither identified nor collected quantifiable data demonstrating backwardness of class,
inadequate representation or non-undermining of administrative efficiency. These mandatory
pre-conditions laid down in Nagaraj for allowing Reservation in Promotion under Art 16 (4A)
and 16 (4B) were not met. The Court said that it is wrong to assume that once reservation in
promotion has constitutional recognition, no fresh exercise by the State is needed. In all cases
of advancing reservation in promotion, it is imperative upon the concerned State to demonstrate
to the Court that reservation became necessary due to inadequate representation of SC/STs in
particular class of posts and this will not undermine administrative efficiency.

Finally, this matter of reservation in promotion was challenged in Jarnail Singh vs Lachmi
Narain Gupta25. A 5-judge bench of the Supreme Court held that there cannot be an insistence
on collection of quantifiable data of backwardness in relation to SCs and STs. Any such
insistence was held to be against the decision in Indra Sawhney case. It also held M Nagraj
per incuriam to the extent it asks for data to demonstrate backwardness of SC/STs and there is
no need to collect Quantifiable Data Of Backwardness to give reservation in promotions for
SC/STs- Nagraj Decision Clarified; It is because of the fact that SC and ST’s are already
notified by the president order and they are deemed backward by reason of historical

24
(2012) 7 SCC 1
25
2018
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oppression. But data related to inadequacy of representation still needs to be collected. A Five
Judge Constitution Bench of the Supreme Court held that the 2006 Judgment in Nagraj Case,
relating to reservations for SC/ST in promotions, need not be referred for consideration of
larger Bench. However, the judgment by Justice Nariman clarified that there is no requirement
to collect quantifiable data of backwardness of SC/STs to provide reservation in promotions.
The dictum in Nagraj was held contrary to Indira Sawhney decision to the extent it prescribed
collection of quantifiable data of backwardness as a prerequisite for providing reservation in
promotions. Objective of reservation would not be fulfilled if only the creamy layer within that
class bag all the coveted jobs in the public sector and perpetuate themselves. When a Court
applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any
manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India.
The judgment added that Constitutional Courts, when applying the principle of reservation,
will be well within their jurisdiction to exclude the creamy layer from such groups or sub-
groups when applying the principles of equality under Articles 14 and 16 of the Constitution
of India. Furthermore, the court advocated for harmonious interpretation of Articles 14 and 16
with Articles 341 and 342, asserting that "it is clear that Parliament will have complete freedom
to include or exclude persons from the Presidential Lists based on relevant factors."

B.K Pavitra vs Union of India (B.K Pavitra I)26 the Supreme Court held to be unconstitutional
by the SC in 2017 Reservation Act, 2002 on the ground that an exercise for determining
'inadequacy of representation', 'backwardness' and the impact on 'overall efficiency' had not
preceded the enactment of the law. It granted the State of Karnataka 3 months to take further
action.

Following the decision, the State of Karnataka created the Ratna Prabha Committee to submit
a quantitative report demonstrating the three Nagaraj criteria: (i) current backwardness of
SC/STs, (ii) cadre-wise representation of SC/STs in Government Departments, (iii) effect on
administrative efficiency due to reservation in promotion. On the basis of the Ratna Prabha
Committee report, Karnataka passed the 2018 Reservation Act.

Section 3 of the 2018 Reservation Act provides for reservation in promotion and Section 4
validates consequential seniority, back dated to 24th April 1978.

26
(2017) 4 SCC 620
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In B.K Pavitra vs UOI (BK Pavitra II)27, Supreme Court upheld the Constitutional validity of
the Karnataka Extension of Consequential Seniority to Government Servants Promoted
on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018. The
said enactment provided for consequential seniority to persons belonging to the Scheduled
Castes and Scheduled Tribes promoted under the reservation policy of the State of Karnataka.

No fundamental right to reservation in promotion

In the latest case of Mukesh Kumar v. State of Uttarakhand (2020)28 the Supreme Court,
reaffirming it's decision in Suresh Chand Gautam v State of U.P. (2016), has denied the
request to pass a mandamus to the state to collect quantifiable data relating to adequacy of
representation of the SCs and STs. The Supreme Court has reiterated the decision in Ajit Singh
case (1999) that reservation is not a fundamental right. Most importantly, the Supreme Court
has limited its own power of judicial review when it stated:

"Even if the under- representation of Scheduled Castes and Schedules Tribes in public services
is brought to the notice of this Court, no mandamus can be issued by this Court to the State
Government to provide reservation in light of the law laid down by this Court in C.A.
Rajendran (1968) and Suresh Chand Gautam (2016)

The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in
matters of promotions. However, if they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing inadequacy of representation of
that class in public services."

ARTICLE 16(5) –
Article 16(5) states that ‘Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a person
professing a particular religion or belonging to a particular denomination.’

Article 16(5) is the third exception to the general rule laid down in Article16(1) and 16(2)
which forbids discrimination in public employment on the ground of religion. Article 16(5)
says that a law which provides that the incumbent of an office in connection with the affairs of

27
MA No. 1151 of 2018, decided in May 2019
28
Civil Appeal No. 1226 of 2020
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any religious or denominational institution or any member of governing body thereof shall be
a person professing a particular religion or belonging to a particular denomination shall not be
treated to be repugnant to this Article.

ARTICLE 16(6) –
In 1980, the Mandal Commission Report, followed the Supreme Court judgment in Indra
Sawhney v. Union of India, allowed not more than 50 per cent of seats in the educational and
service matter for the ST (Scheduled Tribes), SC (Scheduled Castes) and OBC (Other
Backward Classes) who constituted around 70 per cent of the total population of India. This
led to a considerable progress in their status; according to the data released by Planning
Commission between 2004-2005 and 2011-2012, more people among the deprived social
classes — SCs, STs and OBCs — were brought above the poverty line, compared to other
segments of society. Therefore, it became an imperative for the legislature to frame policies for
the upliftment of the economically weaker sections of the people who belonged to “other
category” or “general category”. Keeping this in mind the legislature passed the Constitution
(103rd Amendment) Act, 2019 to provide for 10 per cent reservation in the jobs and
educational institutions to economically backward section in the general category.

It amended the fundamental rights under Part III of the Constitution to insert Articles 15(6)
and 16(6) in the Constitution.

Article 16(6) states that ‘Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any economically weaker
sections of citizens other than the classes mentioned in clause (4), in addition to the existing
reservation and subject to a maximum of ten per cent of the posts in each category.’
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CONCLUSION
Social Justice is a principle that has not been specifically defined in the Constitution but is
left upon the lawmakers to decide its ambit. It is something that is inclusive in nature. The
soul of the constitution, i.e., the preamble provides for Justice- social, economic and political.

Right to Equality is not a simple concept as it is perceived to be. The Indian Constitution aims
to achieve a society in which all the individuals are provided with an equal opportunity. The
developments which have been made in the light of Right to equality under the Constitution
have uplifted the Indian society. The framers of the Constitution aimed to achieve a society
where all citizens are treated equally. The Courts have given various interpretations through
the judgments so as to achieve the aim of equality which the framers of the Indian Constitution
intended.

The Equality of Opportunity guaranteed under Article 16 was inserted in Constitution of India
so as to ensure that no citizen can be discriminated on the grounds of religions, race, caste, sex,
descent, place of birth or residence for government employees, i.e., every individual who is
qualified for a particular post should freely be able to apply for the post, sit for the examinations
and have his qualifications tested. There should be no limitations to this principle.

The real development in the ambit of Article 16 was done after passing of Constitution by
Indian Parliament and Judiciary. The main aim of is to remove any scope of ambiguity that
can be done in the interpretation of this Article. In a country diverse country like India, it
becomes very difficult to obtain equality as Article 14 talks about therefore Article 16 talks
about protective discrimination which is discrimination done to protect the weaker section of
society, and make special provisions in law to protect them, and it in no way violates Article
14 because Article 14 prohibits class legislation but allows reasonable classification.

Making reforms in the reservation system is the need of the hour. These can be- Restricting
its usage to once in a lifetime, providing quality education starting from the elementary level
etc. It cannot be denied that unequal’s are not to be treated equally, but whether reservation is
the only solution is a blooming question that still prevails.
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REFERENCES
BOOKS

• M.P. JAIN, Indian Constitutional Law, Pg. 109-110, (Lexis Nexis, 8th
edition, 2018)
• Dr. J.N. PANDEY, Constitutional Law of India, Pg. 165-168(Central Law
Agency, 52nd edition, 2015)

INTERNET SOURCES

• https://www.constitutionofindia.net/
• https://www.lawcolumn.in/
• https://www.livelaw.in/know-the-law/explained-major-sc-decisions-
on-reservation-in-promotions-152580
• https://www.lawctopus.com/
• https://blog.ipleaders.in/