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Article 16 of Constitution of

India

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.