By Dipti Khatri, UPES Dehradun
Editor’s Note: Right to Equality is one of the basic fundamental rights that the constitution of India guarantees to all the citizens of the country. Article 16 deals with the equality of opportunity in matters of public employment. The Constitution of India has given a wide interpretation of this Article. This paper deals with equality of opportunity in public employment.
Right to Equality is one of the basic fundamental rights that the constitution of India guarantees to all the citizens of the country. 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 (EEO) 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. [i]
“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.
“If it stood alone all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only a utopian conception unless a practical content was given to it… that is why the makers of the Constitution introduced clause (4) in Art. 16.
“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.”[ii]
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. Kholo[iii], 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.
DETAILED DISCUSSION ON ARTICLE 16:
Equality of opportunity in matters of public employment.-
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The rule applies only in respect of employments or offices which are held under the state. i.e., the person holding office as subordinate to the state. The clause accordingly, does not prevent the state from laying down the requisite qualifications for recruitment for government services, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among the servants.
The qualification pointed may, besides mental excellence, include physical fitness, sense of discipline, moral integrity and loyalty to the state.[iv]The expression ‘ Matters relating to employment and appointment’ must include all matters in relation to employment both prior and subsequent to the employment which are incidental to the employment and form parts of the terms of the conditions of the such employment [v].
Thus the guarantee in clause (1) will cover the (a) initial appointments, (b) Promotions, (c) Termination of employment, (d) Matters relating to the salary, periodical increments, leave, gratuity, pension, Age of superannuation etc. Principle of equal pay for equal work is also covered in section 16(1). In the light of the case of M Thomas v State of Kerala[vi], Justice V.R Krishna Iyer, rightly pointed out that the experience of reservation in practice showed that the benefits were, by and large, snatched away by the top creamy layer of the backward classes or classes, thus keeping the weakest amongst weak always weak and leaving the fortunate layers to consume the whole cake. Substantially lightened by the march of time, measures of better education and more opportunities of employment.
(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. The prohibited grounds of discussions are religion, race, caste, sex, descent, place of birth, residence, or any of them. Thewords, any employment or office under the State make it clear that Article 16(2) also applies only to public employment.
In K.C. Vasanth Kumar v. State of Karnataka[vii], AIR 1985 S.C. 1495, the Supreme Court has suggested that the reservations in favor of backward classes must be based on the mean test. It has been further suggested that the policy of reservations should be reviewed every five years or so and if a class has reached up to that level where it does not need the reservation. Its name should be deleted from the list of backward classes.
Supreme Court in Indira Sawhney & Ors. v. Union of India[viii] (AIR 1993 SC 477)
- Upheld Implementation of separate reservation for other backward classes in central government jobs.
- Ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities.
- Ordered to restrict reservations within the 50% limit.
- Declared separate reservations for economically poor among forward castes as invalid.
(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. M R Balaji v Mysore[ix] AIR 1963 SC 649 Court put 50% cap on reservations in almost all states except Tamil Nadu (69%, under 9th schedule) and Rajasthan (68% quota including 14% for forward castes, post-Gujjar violence 2008) has not exceeded 50% limit. Tamil Nadu exceeded the limit in 1980. Andhra Pradesh tried to exceed the limit in 2005 which was again stalled by the High Court.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
The scope of Article 16 (4) was considered by the Supreme Court in Devadasan v. Union of India[x], AIR 1964 S.C. 179. In this case “carry forward rule” made by the Government to regulate the appointment of persons of backward classes in government services was involved.
The Supreme Court struck down the “carry forward rule” as unconstitutional on the ground that the power vested in the government cannot be so exercised so as to deny reasonable equality of opportunity in matters of public employment for the members of classes other than backward classes. In this case, the reservation of posts to the members of backward classes had exceeded 50% and had gone up to 68% due to “carry forward rule.”
The Supreme Court held that each year of recruitment must be considered by itself and the reservation for each year should not be excessive so as to create ma monopoly or interfere unduly with the legitimate claims of the rest of the society. So the court held that reservation should be less than 50%, but how much less than 50% should depend upon the prevailing situations.[xi]S. Rly. v. Rangachari[xii]AIR 1962 SC 36, State of Punjab v. Hiralal[xiii] 1970(3) SCC 567, Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India[xiv](1981) 1 SCC 246 Reservation of appointments or posts under Article 16(4) included promotions.
This was overruled in Indira Sawhney & Ors v. Union of India AIR 1993 SC 477 : 1992 SCC 217 and held that Reservations cannot be applied in promotions.
(4A) Nothing in this article shall prevent the State from making Provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor 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.
This clause does not affect the decision as regards other backward classesbut makes it inapplicable to the scheduled castes and the scheduled tribes. Justifying reservations for the Scheduled Castes and Scheduled Tribes candidates in the promotion, the Court had at one point held that even their seniority acquired by the promotion of the general class candidates could not be affected by the subsequent promotion of the general class candidates. S. Vinodkumar vs. Union of India[xv] 1996 6 SCC 580 Relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible.
(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 the total number of vacancies of that year.
(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. UOI v/s. S. Kalugasalamoorthy[xvi] held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against reserved quota does not arise.
Supreme Court ruled that reservations cannot be enforced on Private Unaided educational institutions.
When is the reservation allowed to the backward class?
Other Backward Class (OBC) is a collective term used by the Government of India to classify castes which are educationally and socially disadvantaged. It is one of several official classifications of the population of India, along with Scheduled Castes and Scheduled Tribes (SCs and STs). The more important question is to what extent the affirmative action programmes based on irrelevant criteria such as caste and religion should be allowed to override merit and efficiency criteria.
Aristotle writes, “Injustice arises when equals are treated unequally and also when unequals are treated equally”. Choosing the proper basis of distribution for making preference is not free from problems. It has been suggested that individual need, status, merit or entitlement are all in appropriate circumstances, proper bases of distribution of benefits.[xix]
In shedding light on the true content of equality of opportunity, Bernard Williams adds: “It requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but that the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them.”
In defining a “section of society”, we cannot include sections of the population identified just by the characteristics which figure in the grounds for allocating the good since it will further exclude some section of the population. Everyone will agree that for getting admissions in a medical college – where seats are limited – merit is an appropriate criterion. Now, exclusion of potential candidates on grounds other than merit is prima facie denial of equality of opportunity.[xx]
In Achill Bharitaya Soshit Karamchari Sangh it has been emphasiszed that the categorization of scheduled caste 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) because these classes stand on a substantially different footing from the rest of the Indian community in our Constitution.
Other weaker section in this context, in his opinion, would mean not other ‘backward class’ but dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled Tribes. In other words, in his opinion, classification of Scheduled Castes and Scheduled Tribes as a special category could be justified within the meaning of Article 15(1) and Article 16(1),whereas classification on the basis of backward classes may have to be confirmed on the basis of Article 15(4) and 16(4).
Are Articles 15(4) and 16(4) Exceptions?
On a plain reading of Articles 15 and 16 one is likely to form the impression that clause (4) of Article 15 is an exception to the rest of the provisions of that article and to clause (2) of Article 29 and that clause (4) of Article 16 is an exception to the rest of the provisions of that article. In other words, while clause (4) of Article 15 permits what the rest of that article or clause (2) of Article 29 prohibits, clause (4) of Article 16 permits what the rest of that article prohibits.
This, indeed, was the initial impression of the Supreme Court also. This impression continued to rule until some of the judges in the State of Kerala v. N.M. Thomas[xxi]opined that clause (4) of Article 16 was not an exception to clause (1) or (2) of that article. This view in Thomas was reiterated, much more emphatically by Chinnappa Reddy, J. in his concurring opinion in A.B.S.K. Sangh v. Union of India[xxii]and it has finally been accepted by the Court in Indra Sawhney v. Union of India[xxiii] (the Mandal case).
Thus clause (4) of Article 16 is not an exception to the rest of that article, but rather it is a facet of equality of opportunity guaranteed in clause (1) of that article and an effective method of realising and implementing it. Clause (4) does not derogate from anything in clauses (1) and (2) of Article 16 but rather gives them positive support and content. It serves the same function, i.e. securing of equality of opportunity, as do clauses (1) and (2). Obviously, therefore, it is as much a fundamental right as clauses (1) and (2) or any other provision of that article.
The slogan “equality of opportunity” commands wide allegiance among the members of contemporary societies. Under scrutiny, equality of opportunity divides into several different ideals, some of them being opposed rivals. It is controversial which of these ideals, if any, are morally acceptable, and which, if any, should be coercively enforced The ideal of a society in which people do not suffer disadvantage from discrimination on grounds of supposed race, ethnicity, religion, sex, sexual orientation is widely upheld as desirable in itself. For many, the ideal is more compelling than any argument that might be offered to support it as requirements of justice.
Formatted on February 27th, 2019.
[i]M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009)
[iii]State of J. & K. v. K.V.N.T. Kholo , AIR 1974 S.C.
[iv]Mahendra P. Singh, V. N. Shukla’s Constitution of India 220-223 (11th ed., 2008)
[vi]N.M Thomas v State of Kerala,1976 AIR 490, 1976 SCR (1) 906
[vii]K.C. Vasanth Kumar v. State of Karnataka , AIR 1985 S.C. 1495
[viii]Indira Sawhney & OR’s v. Union of India AIR 1993 SC 477
[ix]M R Balaji v Mysore AIR 1963 SC 649
[x]Devadasan v. Union of India , AIR 1964 S.C. 179
[xi]Swati Deva,A.K.Sikri, Law (1st ed., 2010.)
[xii]S. Rly. v. Rangachari AIR 1962 SC 36
[xiii]State of Punjab v. Hiralal 1970(3) SCC 567
[xiv]Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246
[xv]S. Vinodkumar vs. Union of India 1996 6 SCC 580
[xvi]UOI v/s. S. Kalugasalamoorthy, 1996 6 SCC 580
[xvii]T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481
[xviii]P.A.Inamdar v. State of Maharashtra 2005 AIR (SC) 3226
[xix]P.K.Tripathi,Comparative constitutional law(2nd ed. ,2011)
[xxi]N.M Thomas v State of Kerala ,1976 AIR 490, 1976 SCR (1) 906
[xxii]A.B.S.K. Sangh v. Union of India, 1981 AIR 298, 1981 SCR (2) 185
[xxiii]Indra Sawhney v. Union of India, AIR 1993 SC 477