Article 16 1

EQUALITY OF

OPPURTUNITY IN

PUBLIC EMPLOYMENT

Submitted To: Submitted By:

Dr. Shruti Bedi

Harkiran Singh Brar

87/10

IVth Semester

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me
during the writing of this project.
 Article 16 2

My deepest thanks to my Constitutional Law Lecturer, Dr. Shruti Bedi, the Guide
of the project for guiding me and correcting various documents of mine with
attention and care. She has taken pain to go through the project and make
necessary corrections as and when needed.

I would also thank my Institution and my faculty members without whom this
project would have been a distant reality. I also extend my heartfelt thanks to my
family and well-wishers.

TABLE OF CONTENTS
INTRODUCTION ............................................................................................. 4
Article 16 vs. Article 15 ..................................................................................... 5
Equality of Opportunity- State may lay down Qualifications or Conditions
[Article 16(1)] .................................................................................................... 5
Members of Separate and Independent Classes of Service .............................. 6
Educational Qualifications as Basis of Classification ...................................... 6
Matters Relating to Employment or Appointment ........................................... 7
 Article 16 3

Cut-off Date for Eligibility ............................................................................. 7

Equality of Opportunity- Process of Selection
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Written Test vis-a-vis Viva Voice Test ........................................................... 8
Annual Confidential Report—Communication of Entries ............................... 8
Filling up Posts Over and Abovpe Those Advertised ...................................... 8
Regularisation of Ad Hoc Employees ............................................................. 9
No Discrimination on the Ground of Religion, Race, Etc. [(Article 16(2)]......... 9
Requirement as to Residence in a State [Article 16(3)] .................................... 10
Reservation of Posts for Backward Classes [Article 16(4)] .............................. 11
Article 16(4) is not an Exception to Article 16(1) ......................................... 11
Scope of Article 16(4)................................................................................... 12
Justice Ram Nandan Committee-“Creamy Layer” ........................................ 15
Reservation in Super-Specialities.................................................................. 16
Backward Classes U/A 16(4) 16

Article 16(4) & Article 335 ........................................................................... 19

Article 16(4) of the Indian Constitution and the Hohfeldian concept of Rights:
..................................................................................................................... 20
Reservation in Promotion—Seventy-seventh Amendment, 1995 [Article
16(4A)] ......................................................................................................... 24
Exclusion of 50% Ceiling w.r.t. Carry Forward Reserved Vacancies [Article
16(4B)] ......................................................................................................... 25
Reservation in Promotion: Catch-up Rule Negated- 85th Amendment, 2001 25
Principles of Reservation do not apply to Isolated Post ................................. 25
Offices under a Religious or Denominational Institution [Article 16(5)] .......... 26
Equal Pay for Equal Work ............................................................................... 27
ARTICLE 16 AS A BUNDLE OF CONTRADICTIONS ................................ 29
 Article 16 4

AN EPILOGUE ............................................................................................... 30
BIBIOGRAPHY .............................................................................................. 31

INTRODUCTION
Part III of the Constitution of India, titled as “Fundamental Rights” (Articles 12
to 36), secures to the people of India, certain basic, natural and inalienable rights.
The inclusion of a chapter on Fundamental Rights, in the Constitution, is in
accord with the trend of modern democratic thought. These rights are basic to a
democratic polity. The guarantee of certain basic human rights is an indispensable
requirement of a free society.

RIGHT TO EQUALITY (Articles 14 to 18)

The first Fundamental Right secured to the people of India is the “Right to
Equality”. It has the following provisions:

1. Equality before Law or Equal Protection of Laws (Article 14)

2. Prohibition of Discrimination Against Citizens (Article 15)
3. Equality of Opportunity in Public Employment (Article 16)
4. Abolition of “Untouchability” (Article 17)
5. Abolition of Titles (Article 18)

EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC

EMPLOYMENT

(Article 16)

Another particular application of the general principal of equality or protection

clause enshrined in Article 14 is contained in Article 16.

Clause (1) of Article 16 guarantees to all citizens, equality of opportunity, matters

relating to employment or appointment to any office under the State. (2) further
strengthens the guarantee contained in Clause (1) by declaring that “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 (3), (4) and (5) of Article 16
contain exceptions to the rule of equality opportunity, embodied in Clauses (1)
and (2).
 Article 16 5

Article 16 vs. Article 15

Article 16 is applicable only in case of employment or appointment to an official
under the State.

Article 16 is similar to Article 15 in one respect, i.e., both these provisions

prohibit discrimination against citizens on specified grounds. However, Article is
wider in operation than Article 16.

While, Article 16 prohibits discrimination only in respect to one particular matter,

i.e., relating to employment or appointment to posts under the State, Article 15
lays down a general rule and prohibits discrimination in respect to all or any
matters.

In respect, Article 16 is wider than Article 15, i.e., the grounds on the basis which
discrimination is prohibited. While, Article 15 prohibits discrimination on any of
the five grounds, i.e., religion, race, caste, sex or place birth, Article 16 contains
seven prohibited grounds, i.e., religion, race, caste, descent, place of birth or
residence. Article 15 does not contain “descent” “residence” as the prohibited
grounds of discrimination. However, both Articles can be invoked by citizens
only.

Equality of Opportunity- State may lay down Qualifications or Conditions

[Article 16(1)]

Article 16 does not prevent the State from prescribing the requisite qualifications
and the selection procedure for recruitment or appointment. It is further open to
the appointing authority to lay down such pre-requisite conditions of appointment
as would be conducive to the maintenance of proper discipline amongst
government servants. The qualifications prescribed may, therefore, besides
mental excellence, include physical fitness, sense of discipline, moral integrity,
and loyalty to the State.

However, the qualifications or the selective test must not be arbitrary. These be
based on reasonable ground and must have nexus with the efficient performance
of the duties and obligations of the particular office or post. Also, the
qualifications cannot be altered and applied with retrospective effect. In
Pandurangarao v. Andhra Pradesh Public Service Commission, the rule
 Article 16 6

relating to qualifications for the appointment to the posts of District Munsiffs, by

direct recruitment prescribed that “the applicant must have been practising as an
Advocate in the High Court and he must have been actually practising in the
Courts of Civil or Criminal jurisdiction in India for a period less than three years.”
The High Court in this context meant Andhra Pradesh High Court. The object
was that the persons to be appointed to the posts of District Munsiffs must be
having knowledge of local laws as well as knowledge of the regional language
and adequate experience at the bar. The application of the petitioner, qualified in
all other respects except that he was not at that time, practicing as an Advocate in
the Andhra High Court but in Mysore High Court, was rejected.

The Supreme Court held that the Rule which requires that only a lawyer
practicing in the Andhra Pradesh High Court, had introduced a classification
between one class of Advocates and the rest and the said classification was
irrational inasmuch as there was no nexus between the basis of the said
classification and the object intended to be achieved by the relevant Rule, i.e.,
“knowledge of local laws as well as regional language and adequate experience
at the bar.’ The Rule was struck down as unconstitutional and ultra vires.

Members of Separate and Independent Classes of Service

There can be no rule of equality between members of separate and independent
classes of services.

In All India Station Masters Association. v. General Manager, Central

Railway, a Rule which provided for the promotion of Guards to the posts of
Station Masters while ignoring the Road-Side Station Masters, was held to be
valid, since, the Guards and Roadside Station Masters were recruited separately
and trained separately and had separate avenues of promotions. They, thus.
formed two distinct and separate classes and for that reason there was no scope
for predicating equality or inequality of opportunity in the matters of promotion.

Educational Qualifications as Basis of Classification

Educational qualifications can justifiably be made a basis of classification for
purposes of promotion to higher post.

In State of J, & K. v. T.N Khosa, the Supreme Court upheld the Jammu &
Kashmir Engineering (Gazetted Service) Recruitment Rules, 1970, where under
only graduate Assistant Engineers were eligible for promotion to the post of
Assistant Executive Engineers.
 Article 16 7

Minimum qualifications fixed for a post are relevant not only for direct
recruitment but also for promotion and absorption. In Madhya Pradesh
Electricity Board v. S.S. Modh, the respondent. who was working as Sub-
Overseer in the Chambal Hydel Scheme, Gandhisagar, was refused absorption as
Assistant Engineer under the Board on the merger of Hydel Scheme with the
Board, since he did not possess the minimum educational qualifications, required
for being appointed as Assistant Engineer under the Board, though his colleagues
possessing the qualifications were so absorbed. The Supreme Court held the
action of the Board as not violative of Article 16(1).

Matters Relating to Employment or Appointment

The words “matters relating to employment or appointment’ explain that Article
16(1) is not restricted to the initial matters, but applies to matters both prior and
subsequent to the employment, which are incidental ‘to the employment and form
part of the terms and conditions of employment. Article 16(1), therefore, would
have application in the matters relating to initial appointments, subsequent
promotions, termination of service, abolition of posts,” salary, periodical
increments, grant of additional increment, fixation of seniority, leave, gratuity,
pension, age of superannuation, compulsory retirement, etc. The expression
“appointment” is said to take in, direct recruitment, promotion or transfer. The
principle of equal pay for equal work has also been interpreted to be the
constitutional goal of Article 16(1).

Cut-off Date for Eligibility

It is well settled, supported by several decisions of the Apex Court that the cut-
off date by reference to which the eligibility requirement must be satisfied by the
candidate seeking a public employment is:

(i) the date appointed by the relevant service rules;

(ii) if there be no cut-off date appointed by the rules, than such date as may be
appointed for the purpose, in the advertisement calling for applications;
that

(iii) If there be no such date appointed then the eligibility criteria shall be
applied, by reference to the last date appointed, by which the applications
have to be received by the competent authority.
 Article 16 8

Equality of Opportunity- Process of Selection

Recruitment to public services should be held strictly in accordance with the
terms of advertisement and the recruitment rules. Deviation from the rules allows
entry to ineligible persons and deprives many others who could have competed
for the post. It is ruled that public contracts are not largesse.

As regards the process of selection the Apex Court in Lila Dhar v. State of
Rajasthan, pointed out that the object of any process of selection for entry into
public service was to secure the best and the most suitable person for the job,
avoiding patronage and favouritism.

Written Test vis-a-vis Viva Voice Test

Holding that it was not for the Court to lay down whether interview test should
be held at all or how many marks should be allowed for interview test, the Court
in Lila Dhar v. State of Rajasthan, said that the marks must be minimal so as
to avoid charges of arbitrariness, though not necessarily always. The Court opined
that rigid rules could not be laid down in these matters and that the matter might
more appropriately be left to the wisdom of the experts.

As regards the allocation of marks for viva voce vis-o-vis the marks for written
examination, it has been held that there cannot be any hard and fast rule of
universal application. It would depend upon the post and nature of duties to be
performed.

Annual Confidential Report—Communication of Entries

In Dev Dutt v. Union of 1ndia, the Apex Court, holding that fairness and
transparency in public administration enquired that all entries whether, poor, fair,
average, good or very good, in the ACR, must be communicated, ruled that non-
communication of even a single entry which might have the effect of destroying
the career of an officer, would be arbitrary and as such violative of Article 16
read with Article 14.

Filling up Posts Over and Above Those Advertised

The practice of selecting and preparing large list as compared to vacancy position
by the Service Selection Board has been deprecated by the Supreme Court in
various decisions. Selection of more candidates than mentioned in the requisition
has been held without jurisdiction.
 Article 16 9

It has held that appointment on additional posts would deprive candidates who
were not eligible for appointment to the posts on the last date for submission of
application, of the opportunity of being considered for appointment, on the
additional posts.

The Supreme Court, in Madan Lal v. State of J. & K., held that since the
requisition in the present case was to fill only 22 posts, and the Commission had
selected 20 candidates, the appointments to be effected out of the said test would
be on 11 posts and not beyond 11 posts.

However, mere calling more number of candidates for interview than prescribed
under the rules does not vitiate the selection.

Further that the Government is under no obligation to fill up all the posts for
which requisition and advertisement are given.

Regularisation of Ad Hoc Employees

The Supreme Court has deprecated the regularisation and absorption of persons
working as part-time employees or on ad hoc basis, as it had become a common
method of allowing back door entries.

In State of U.P v. Ram Adhar, the Apex Court ruled that a temporary employee
had no right to the post. There was no principle of law, the Supreme Court in
State Of Karnataka v. Umadevi said, that a person appointed in a temporary
capacity had a right to continue till regular selection. Long continuance of such
employees on irregular basis, would not entitle them, to claim equality with
regularly recruited employees.

No Discrimination on the Ground of Religion, Race, Etc. [(Article 16(2)]

Clause (2) of Article 16 declares “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 expression “discriminated against” the word “only” in Article 16(2) bear the
same meanings as in Article 15. Therefore, if the differentiation and bias are
 Article 16 10

based on any of the grounds mentioned in Article 16(2), the impugned law or
State action becomes ipso facto repugnant to the Constitution.

In Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, the Supreme

Court struck down Section 6(1) of the Madras Hereditary Village Offices Act,
1895 which had required the Collector to appoint Village Munsiffs from amongst
descendants of the last holders of the offices, “Descent” being a forbidden ground
of classification.

In C.B. Muthamma v. Union of India, the Supreme Court held Rule 8(1) of
Indian Foreign Service (Conduct and Discipline) Rules, 1961 and Rule 18(4) of
the Indian Foreign Service (Recruitment, Cadre Seniority and Promotions) Rules,
1961, as discriminatory against women.

Rule 8(1) provided that a woman member of the service would obtain permission
of the Government, in writing, before her marriage was solemnised and could be
required to resign from service after her marriage, if the Government was satisfied
that her family and domestic commitments were likely to come in the way of the
due and efficient discharge of her duties as a member of the service. Rule 18(4)
stood in her way to promotion to Grade I of the service.

Requirement as to Residence in a State [Article 16(3)]

Clause (3) constitutes an exception to Clause (1) and Clause (2) of Article Clause
(3) empowers the Parliament to make “any law prescribing in regard 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, requirement as to
residence within that State or Union territory prior to such employment or
appointment”.

It may be noted that it is the Parliament and not the Legislature of a State, who
can make any law under Clause (3) of Article 16.

In the exercise of the power conferred by Clause (3) of Article 16, Parliament
enacted the Public Employment (Requirement as to Residence) Act, The Act
repealed, all the laws in force, prescribing any requirement as residence, within a
State or Union Territory, for employment or appointment that State or Union
Territory. However, exception was made in the case of Himachal Pradesh,
 Article 16 11

Manipur, Tripura and Telengana (the area transferred to State of Andhra Pradesh
from the erstwhile State of Hyderabad). This exception was made keeping in view
the backwardness of these areas. It was expire on March 21, 1974.

In Narasimha Rao v. Slate of A.P., the Apex Court struck down Section 3 of the
Public Employment (Requirement as to Residence), Act, 1957, which related to
Telengana part of Andhra Pradesh, as ultra vires the Parliament. Clause (3) of
Article 16, the Court explained, used the word “State”, which signified “State” as
a unit and not parts of a State as districts or other units State. Therefore,
Parliamentary law could provide for residence in the whole of Andhra Pradesh
and not in Telengana, which was a part of the State.

Reservation of Posts for Backward Classes [Article 16(4)]

Clause (4) of Article 16 expressly permits the State to make “provision for
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”.

The expression “backward class of citizens” in Article 16(4) includes the

Scheduled Castes and the Scheduled Tribes.

This Clause, however, cannot be extended to persons acquiring SC/ST status by

voluntary mobility. Further it was held in Valsamma Paul v. Cochin University,
children of inter-caste married couples, of which one is SC/ST, have been held
not entitled to claim reservation benefit. However, such children can claim
relaxation of marks.

Article 16(4) is not an Exception to Article 16(1)

Article 16(4) is an enabling provision. It confers a discretionary power on the
State to make reservation of appointments in favour of backward classes of
citizens. It confers no right on citizens to claim reservation. Article 16(4) has been
held not mandatory. How reservation is to be made, is a matter of policy.

The Supreme Court in E.V. Chinnaiah v. State of A.P., while striking down the
Andhra Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000,
ruled that “while reasonable classification is permissible, micro-classification or
mini-classification is not”. The State, thus, has no power to sub-divide, sub-
 Article 16 12

classify or sub-group the castes which are found in the Presidential List of
Scheduled Castes, issued under Article 341. The Court explained that the
principle of sub-classification of Backward Class into backward and more
backward was not applicable to Scheduled Castes and Scheduled Tribes.

If a State or Union Territory makes a provision where under the benefit of

reservation is extended only to such Scheduled Castes/Tribes which are
recognized as such, in relation to that State/Union Territory, then such a provision
would be perfectly valid.

In Indra Sawhney v. Union of India, the Supreme Court ruled that Clause (4)
of Article 16 is not an exception to Clause (1) rather it is an instance of
classification implicit in and permitted by Clause (1).

The term “reservation” in Article 16(4) implies a separate quota which is reserved
for a special category of persons. The very purpose of reservation is to protect the
weaker category, against competition from the open category candidates.
Reservation implies selection of less meritorious person. Thus, grant of relaxation
in passing marks to SC/ST candidates in examinations, would be covered by
Article 16(4).

Scope of Article 16(4)

In T. Devadasan v. Union of India, the carry forward rule, regulating reservation
of vacancies for candidates belonging to Scheduled Castes and Scheduled Tribes,
was struck down by the Apex Court, as invalid and unconstitutional.

As a result of the application of the impugued Rule, in the year 1961, out of the
45 vacancies, actually filled, 29 went to the candidates belonging to Scheduled
Castes/Tribes. That came to about 64% of reservation.

The majority of the Supreme Court following MR. Balaji v. State of Mysore
declared that reservation exceeding 50%, in a single year would be
unconstitutional and invalid. The Court further ruled that, for the purpose of
reservation, each year, should be taken by itself and therefore, there should be no
carry forward of the unfilled reserved vacancies.

In State of Kerala v. N.M. Thomas, the Kerala Government framed Rules

regulating promotions from the cadre of lower division clerks to the higher cadre
of upper division clerks, which was made dependent on the passing of a
departmental test within two years of the introduction of this test. Failure to pass
 Article 16 13

the test within two year disentitled the lower division clerk promotion in future.
However, by an Order issued subsequently under the said Rule, the members
belonging to Scheduled Castes/Tribes were granted a longer period and were
given two extra years to pass the test.

With a view to settle the law, relating to the reservations in an authoritative way,
a special Bench of nine Judges of the Supreme Court, was, for the first time,
constituted in Indra Sawhney v. Union of India, which is popularly known as
Mondal Commission case. The issue was thoroughly examined by the Court in
its historical prospective. The majority opinion on various aspects of reservations
may be summarised as follows:

(1) Until a law is made or rules are issued under Article 309 with respect to
reservation in favour of backward classes, it would always be open to the
Executive (Government) to provide for reservation of appointment/posts
in favour of Backward Classes by an executive order.

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

of classification implicit in and permitted by Clause (1) of Article 16.

(3) The words “provisions for the reservation of appointments/posts” in

Article 16(4) include other forms of special provisions like preferences,
concessions and exemptions.

(4) Clause (4) of Article 16 is exhaustive of the special provision that can be
made in favour of “the backward class of citizens.”

(5) Clause (4) of Article 16 is not exhaustive of the concept of reservations. It

is exhaustive of reservations in favour of backward classes alone.

According to the majority view, Article 16(1) permitted the making of

reservation of appointments/posts which should be made only in
exceptional situations and wherein the State is called upon to do so in
public interest,

(6) The word ‘class’ in Article 16(4) is used in the sense of social class. It is
not antithetical to “caste”. The Constitution is meant for the entire country
and for all time to come.

(7) For Identification of backward classes, one has to begin somewhere with
some group, class or section. Neither the Constitution nor the law
 Article 16 14

prescribes the procedure or method of identification of backward classes.

Nor is it possible or advisable for the Court to lay down any such procedure
or method. It must be left to the authority appointed to identify. It can adopt
such method/procedure as it thinks convenient.

(8) It is not necessary for a class to be designated as a backward class that it is

situated similarly to the Scheduled Castes/Scheduled Tribes.

(9) The backwardness contemplated by Article 16(4) is mainly social

backwardness. It should not be correct to say that the backwardness under
Article 16(4) should be both social and educational.

(10) A backward class cannot be determined only and exclusively with

reference to economic criterion. It may be a consideration or basis along
with and in addition to social backwardness, but it can never be the sole
criterion.

(11) It is permissible for the Government or other authority to identify a

backward class of citizens on the basis of occupation-cum-income without
reference to caste.

(12) There is no constitutional bar to classify the backward classes of citizens

into backward and more backward categories.

The Court held that sub-classification between backward classes and more
backward would be advisable to ensure that the more backward among the
backward classes should obtain the benefits intended for them. If it was not
so done then the advanced section of the backward classes might move
away with all the benefits of reservation.

(13) In order that the backward classes are given adequate representation in the
State services and to ensure that the benefit of reservation reach the poorer
and the weakest section of the backward class, the creamy layer should be
excluded in that class, from claiming the benefit. The Court, therefore,
directed the Government of India to specify the basis of exclusion- whether
on the basis of income, extent of holding or otherwise- of creamy layer.

(14) The reservation contemplated in Clause (4) of Article 16 should not exceed
50% However; in extraordinary situation this percentage may be exceeded.
But, every excess over 50% will have to be justified on valid grounds.
 Article 16 15

(15) Article 16(4) speaks of adequate representation and not proportionate

representation.

(16) The rule of 50% shall be applicable only to reservations proper, it shall not
be, indeed, cannot be, applicable to exemptions, concessions or relaxations,
if any, provided to Backward Classes under Article 16(4).

(17) For the purpose of applying the rule of 50%, a year should be taken as the
unit and not the entire strength of the cadre, service or the unit, as the case
may be.

(18) The carry forward of unfilled reserved vacancies is not per se

unconstitutional. However, the operation of carry forward rule should not
result in breach of 50% rule.

(19) Article 16(4) does not contemplate or permit reservation in promotions as

well. The reservations are thus confined to initial appointments only.

(20) Reservation for backward classes should not be made in services and
position where merit alone counts.

Justice Ram Nandan Committee-“Creamy Layer”

In Indra Sawhney v. Union of India, the Supreme Court directed the
Government of India to specify the basis of exclusion whether on the basis of
income, extent of holding or otherwise of “creamy layer”. In accordance with this
direction, the Government of India appointed an expert committee known as
“Justice Ram Nandan Committee’, to identify the creamy layer among the
socially and educationally backward classes. The Committee submitted its report
on March 16, 1993, which was accepted by the Government. It was published in
Column 3 of the Schedule to the Government of India, Ministry of Personnel
Department Office Memorandum, and dated 8-9-1993.

In Ashok Kumar Thakur v. State of Bihar, the Supreme Court quashed the
criteria laid down by the States of Bihar and Uttar Pradesh for identifying the
“creamy layer” and excluding the affluent sections of the Backward Classes for
the purposes of job reservation.

The Supreme Court held that the conditions in addition to those laid down in
Mandal case, for applying the rule of exclusion laid down by the States had no
nexus with the object sought to be achieved and were arbitrary, and hence
 Article 16 16

violative of Articles 16(4) and 14 as also against the law laid down in Mandal
case.

A three-Judge Bench of the Supreme Court in Indra Sawhney v. Union of India

ruled that non-exclusion of creamy layer in backward classes was violative of
Articles 14 and 16(1) and also of Article 16(4).

Reservation in Super-Specialities

In Indra Sawhney v. Union of India, the majority of the Supreme Court had
opined that there were certain services and positions where, either an account of
the nature of duties attached to them or the level (In the hierarchy) at which they
were obtained, merit alone would count. It, therefore, meant that the rule of
reservation would not be applied in cases of super-specialities.

In K. Duraisamy v. State of Tamil Nadu, the Supreme Court in this respect,

observed:

“It is by now a proposition well settled that at the super speciality level in
particular and even at the Post-Graduate level reservations of the kind known as
‘protective discrimination’ in favour of those considered being backward should
be avoided as being not permissible.”

Backward Classes U/A 16(4)

There was an overwhelming majority in the nation that was still backward –
socially, economically, educationally, and politically. These victims of
entrenched backwardness comprise the present scheduled castes (SC), scheduled
tribes (ST) and other backward classes (OBC). Even though, these classes are
generically the "Backward Classes,” the nature and magnitude of their
backwardness are not the same.

The words ' "backward class of citizens" occurring in Article 16 (4) are neither
defined nor explained in the Constitution though the same words occurring in
Article 15 (4) are followed by a qualifying phrase, "Socially and Educationally''
backward classes.

In the course of debate in the Parliament on the intendment of Article 16 (4), Dr.
B.R. Ambedkar, expressed his views that “backward classes” are which nothing
else but a collection of certain castes.
 Article 16 17

Incidentally, it is also necessary to point out that the Supreme Court in all its
decisions on reservation has interpreted the expression `backward classes' in
Article 16 (4) to mean the "socially and educationally" backward. It also
emphatically rejected "economic backwardness" as the only or the primary
criterion for reservation under article 16 (4) and observed that economic
backwardness has to be on account of social and educational backwardness. The
true meaning of this expression has been considered in a number of cases by the
Supreme Court starting from Balaji to Indira Sawhney.

(1) In M.R. Balaji v. State of Mysore, it was held that the caste of a group of
persons cannot be the sole or even predominant factor though it may be a relevant
test for ascertaining whether a particular class is backward or not. The two tests
should be conjunctively applied in determining backward classes: one, they
should be comparable to the Schedule Castes and Schedule Tribes in the matter
of their backwardness; and, two, they should satisfy the means test, that is to say,
the test of economic backwardness laid down by the State government in the
context of the prevailing economic conditions. Poverty, caste, occupation and
habitation are the principal factors contributing to social backwardness.

(2) In R. Chitralekha and Anr. v. State of Mysore and Ors. and Triloki Nath
v. J & K State and K.C. Vasanth Kumar v. Karnataka

The Apex Court explaining the meaning of ‘Class’ observed that “The
quintessence of the definition of “Class” is that a group of persons having
common traits or attributes coupled with retarded social, material (economic) and
intellectual (educational) development in the sense not having so much of
intellect and ability will fall within the ambit of 'any backward class of citizens'
under Article 16 (4) of the Constitution.”

(3) Further in R. Chitralekha v. State of Mysore, it was stated that:

“...what we intend to emphasize is that under no circumstances a "class" can be

equated to a "caste", though the caste of an individual or a group of individual
may be considered along with other relevant factors in putting him in a particular
class.”

(4) In State of Andhra Pradesh v. P. Sagar, it has been observed that:

The expression "class" means a homogeneous section of the people grouped

together because of certain likenesses or common traits and who are identifiable
 Article 16 18

by some common attributes such as status, rank, and occupation, residence in a

locality, race, religion and the like. In determining whether a particular section
forms a class, caste cannot be excluded altogether. But in the determination of a
class a test solely based upon the caste or community cannot also be accepted.

(5) In Triloki Nath v. J & K State -Shah, J., speaking for the Constitution Bench
has reiterated the meaning of the word 'class' as defined in the case of Sagar and
added that "for the purpose of Article 16 (4) in determining whether a section
forms a class, a test solely based on caste, community, race, religion, sex, descent,
place of birth or residence cannot be adopted, because it would directly offend
the Constitution.

The expression ‘backward class’ is not used as synonymous with ‘backward

caste’ or ‘backward community’. The members of an entire caste or community
may in a social, economic and educational scale of values at a given time be
backward and may on that account be treated as a backward class, but that is not
because they are members of a caste or community, but because they form a class.

(6) In A. Peeriakaruppan, etc. v. State of Tamil Nadu

The Supreme Court observed that “A caste has always been recognised as a class.
If the members of an entire caste or community at a given time are socially,
economically and educationally backward that caste on that account be treated as
a backward class. This is not because they are members of that caste or
community but because they form a class.”

(7) Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala
and Anr. was of the view that “In ascertaining social backwardness of a class of
citizens it may not be irrelevant to consider the caste of the group of citizens.
Caste cannot however be made the sole or dominant test...”

(8) In Indira Sawhney and Ors. Vs. Union of India and Ors., the Court
observed that:-

The meaning of the expression “backward classes of citizens” is not qualified or

restricted by saying that it means those other backward classes who are situated
similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a
relative term must in the context be judged by the general level of advancement
of the entire population of the country or the State, as the case may be.
 Article 16 19

There is adequate safeguard against misuse by the political executive of the power
u/Art. 16(4) in the provision itself. Any determination of backwardness is neither
a subjective exercise nor a matter of subjective satisfaction. The exercise is an
objective one. Certain objective social and other criteria have to be satisfied
before any group or class of citizens could be treated as backward. If the executive
includes, for collateral reasons, groups or classes not satisfying the relevant
criteria, it would be a clear case of fraud on power.

‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the
purpose of Article 16 (4) for ascertaining the social and educational backwardness
of any section or group of people so as to bring them within the wider connotation
of 'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant
factor or primary criterion in determining the backwardness of a class of citizens.

Unless 'caste' satisfies the primary test of social backwardness as well as the
educational and economic backwardness which are the established and accepted
criteria to identify the 'backward class', a caste per se without satisfying the agreed
formulae generally cannot fall within the meaning of 'backward class of citizens'
under Article 16 (4), save in given exceptional circumstances such as the caste
itself being identifiable with the traditional occupation of the lower strata
indicating the social backwardness. And ‘Class’ has occupation and Caste nexus;
it is homogeneous and is determined by birth. It further approved Chitralekha
case.

(9) Further in case of Jagdish Negi v. State of U.P it was held “Backwardness is
not a static phenomenon. It cannot continue indefinitely and the State is entitled
to review the situation from time to time.”

Article 16(4) & Article 335

Article 335: provides that “the claims of the members of the SCs and STs shall
be taken into consideration, consistently with the maintenance of efficiency of
administration in the making of appointments in services and posts in connection
with the affairs of the Union or of a State”.

There has been some debate as to whether Art.335 had any limiting effect on the
power of reservation conferred by Art.16 (4). The nine judge bench of the
Supreme Court in Indira Sawhney considered the argument that the mandate of
Art.335 implied that reservation should be read subject to the qualification
engrafted in Art.335 i.e. consistently with the maintenance of efficiency of
 Article 16 20

administration. Dealing with the argument majority framed an issue as to whether

reservations were anti-meritarian? The majority then observed that may be
efficiency, competence and merit are not synonymous concepts; may be it is
wrong to treat merit as synonymous with efficiency in administration and that
merit is but a component of the efficiency of an administration.

Even so the relevance and significance of merit at the stage of initial recruitment
cannot be ignored. It cannot also be ignored that the very idea of reservation
implies selection of a less meritorious person. At the same time, we recognise
that this much cost has to be paid, if the constitutional promise of social justice is
to be redeemed. We also firmly believe that given an opportunity, members of
these classes are bound to overcome their initial disadvantages and would
compete with-and may in some cases, excel members of open competitor
candidates. It is undeniable that nature has endowed merit upon members of
backward classes as much as it has endowed upon members of other classes and
what is required is an opportunity to prove it.

But in case of Article 16, Article 355 would be relevant. It may be permissible
for the government to prescribe a reasonably lower standard for scheduled
castes/Scheduled tribes/backward classes consistent with the requirements of
efficiency of administration. It would not be permissible not to prescribe any such
minimum standard at all. While prescribing the lower minimum standard for
reserved category, the nature and duties attached to the post and the interest of
the general public should also be kept in mind. While on Article 355, we are of
the opinion that there are certain services and positions where merit alone counts.
In such situations, it may not be advisable to provide for reservations. For
example technical post in Research and Development
organisations/departments/institutions, superspecialities in medicine,
engineering etc.

Article 16(4) of the Indian Constitution and the Hohfeldian concept of

Rights:

Part III of the Indian Constitution covers the Fundamental Rights of the citizens
of the country. All these Fundamental Rights indicate that all the citizens are
equally treated by the nation irrespective of caste, sex and creed. Article 16(4)
also, no doubt, fall within Part III of the Constitution comprising the fundamental
rights. Article 16(4) of the Indian Constitution states that “Nothing in this article
shall prevent the State from making any provision for the reservation of
 Article 16 21

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) provides for reservation for Backward Classes in cases of
inadequate representation in public employment. Article 16(4) is enacted as a
remedy for the past historical discriminations against a social class. The object in
enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that
the State is empowered to identify and recognize the compelling interests. If the
State has quantifiable data to show backwardness and inadequacy then the State
can make reservations in promotions keeping in mind maintenance of efficiency
which is held to be a constitutional limitation on the discretion of the State in
making reservation as indicated by Article 335.

The word “Right” which we use in our general parlance or in our day to day life,
not even we but also our Judges and in our legal system differs a lot from
Hohfeld’s concept of Right. Hohfeld's analysis of rights lies in the descriptive
exercise of the legal positions which are connected with each other by means of
logical relations of entailment and negation. Hohfeld's ambition was to provide a
conceptual understanding for our use of right, duty etc. in practice, thus
facilitating a better understanding of the nature of our rights. Thus in the
Hohfeldian analysis the term ‘right’ involves four ‘strictly fundamental legal
relations’- ‘right( or claim)’, ‘privilege’, ‘power’ and ‘immunity’. He identified
eight “fundamental” concepts that allow one to describe any legal position. These
concepts are duty, claim, liberty, no claim, power, liability, disability, and
immunity. Hohfeld explained how these concepts logically related to one another
through what he called “correlation” and “opposition.”

Our Fundamental Rights are generally called as negative rights because they limit
the power of the State to exercise over its citizens and thus the citizens gets a
upper hand, and the State cannot interfere with any of the rights of the citizens as
mentioned under part III of the Indian Constitution.
If we look into the debate on negative rights and positive rights, we find that,
negative rights are considered to be those rights which oblige others
to refrain from interfering with someone's attempt to do something and positive
rights are those which impose a moral obligation on a person to do something for
someone. Now, if we take Article 16(4) into consideration, it comes within the
purview of Part III of the Indian Constitution and so it must be considered to be
negative right. But a bare reading of the text clearly shows that it empowers the
State to make provisions for the backward classes of the State. Thus, if we follow
the debate on negative rights and positive rights, then it is quite clear that, though
Article 16(4) falls within Part III of the Indian Constitution, it cannot be called as
a negative right but it’s a positive right.
 Article 16 22

As Article 16(4) falls within the purview of Part III of the Constitution, it is called
as a fundamental right of the citizen. The first impression which comes into our
mind, when we says that Article 16(4) is a Fundamental Right, is that, in
Hohfeldian Concepts it must be a claim right. But a bare reading of the Provision
reflects in our mind that the Right which is given under Article 16(4) is actually
a privilege which is conferred into the hands of the State. Also if we analyse the
decision of the Court in the case of P&T Schedule Caste/ Tribe Employee’s
Association v. U.O.I, in which the Court has observed that Article 16(4) is only
an enabling clause and no writs can be issued ordinarily compelling the
government to make reservation, we are clear that Article 16(4) is not a Claim
right. As we know that, the Jural correlative of Claim Right is Duty, if the
backward classes would having a Claim right, then the State would have under a
Duty to provide reservation. But the decision of the Court in the abovementioned
case, clearly says that, the State is under no duty to provide reservation on the
wish of the Backward classes. Thus, as there is no correlative duty on the part of
the State, it is quite clear that, Article 16(4) is not a claim right for the backward
classes of the society.

Hohfeld described privilege or liberty as, to have a liberty to engage in a certain

action is to be free from any duty to eschew the action, likewise, to have a liberty
to abstain from a certain action is to be free from any duty to undertake the action.
Like any right, each liberty is held by a specific person or group of persons against
another specific person or group of persons. The person against whom the liberty
is held has a no-right concerning the activity or state of affairs to which the liberty
pertains.

Under Hohfeldian concept, the jural correlative and jural opposite of ‘Privilege’
is No-right and Duty. When Article 16(4) gives privileges to the State in
providing reservation, it means that the class which is favoured by this reservation
has no-right to claim and at the same time the State is also under no Duty to
perform what it has been asked to do. This very concept of privilege has been
clearly proved by the decision of the Court in the case of P&T Schedule Caste/
Tribe Employee’s Association v. U.O.I., in which the Court clearly held that the
State is under no duty to give reservation.

Under Hohfeldian concept of rights, Power denotes ability in a person to alter the
existing legal condition, whether of oneself or of another, for better or for worse.
The correlative of power is liability which denotes the position of a person whose
legal condition can be so altered.

Now, if we construe the term ‘power’ as stated in Indra Sawhney v. U.O.I with
that of the term ‘power’ as defined by Hohfeld, we will see that a lot of conflict
 Article 16 23

will arise between the two. If the State has power under clause (4) of Article 16
of the Constitution, then in Hohfeldian sense it will mean that the State is vested
with all the power of altering the existing legal condition. In contrast it means
that, the community, i.e. the legal condition of the backward class is easily
susceptible. Also, it has been mentioned that power itself doesn’t have any
correlative duty attached to it. This also means that the State is under no duty to
act, which is to provide reservation to the backward classes.

Let us go back to the debate over negative rights and positive rights, which we
discussed earlier. We found that, though Article 16(4) falls within the purview of
Part III of the Constitution, it is not a negative right in contrast that Fundamental
Rights are negative rights, but it’s a positive right which the State uses to provide
reservation to the backward classes of the community. Now, this was concluded
from a bare reading of the provision which reads as “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”. Now, let’s
analyse the debate over positive rights and negative rights while referring to the
interpretation given by our Supreme Court while defining the scope of Article
16(4). The Court held that, the provision gives power to the State to make
reservation in favour of the backward classes of the society. Thus, the debate over
negative and positive rights clearly states that Privileges and powers cannot be
negative rights; and privileges, powers, and immunities cannot be positive rights.
For example the right to enter into a binding agreement, and the right to veto a
bill, are neither negative nor positive. Thus, we have seen that, it is neither a
positive right nor a negative right.

If this is the power which the Constitution provides to the State under Article
16(4), then there will be a great conflict. The main conflict which will arise is
that, whether we should go by the interpretation which was made by the Court
while defining the Scope of the provision or we have to go by the provision itself
which is given under part III of the Constitution.

From the above discussions, we have seen that, the State is either having a
privilege or power in Hohfeldian concept and thus it is not bound by the people
of the backward class to provide any benefit to the particular community, for
which the provision was added into our Constitution.

Thus, if we would look at the provision of Article 16(4) of our Constitution in

terms of Hohfeldian Concept of Rights, we will find that it is not a Fundamental
Right of the Citizens. The very nature of the Fundamental Rights is to limit the
power of the State and to give the Citizens of the State an upper hand. But from
 Article 16 24

the above discussions we have seen that, it is the State which is incurring power
from the very provision of the Constitution and it is in contradiction to the very
nature of Fundamental Rights.

Thus, we can conclude that, if we look at the provision of Article 16(4) of the
Constitution, from Hohfeldian Concept of Rights, then Article 16(4) of our
Constitution, though it’s come within the purview of part III of the Constitution,
is not a Fundamental Right of the Citizen. But, from a general understanding of
Rights and as understood by every person, Article 16(4) is still considered as a
Fundamental Right. So, we can say that the Hohfeldian Concept of Rights is an
abstract notion and we cannot apply it into any statutes e.g., like our Constitution,
and if we would try to apply this to any working legal system then everything will
go haywire.

Reservation in Promotion—Seventy-seventh Amendment, 1995

[Article 16(4A)]

In Indra Sawhney v. Union of India, after taking into consideration all the
circumstances, the Court said that Article 16(4) did not contemplate or permit
reservation in promotions. This question, the Court said, had not to be answered
on a reading of Article 16(4) alone but on a combined reading of Article 16(4)
and Article 335.

The Court observed that while it was certainly just to say that a handicap should
be given to backward classes of citizens at the stage of initial appointment, but it
would be a serious and unacceptable inroad into the rule of equality of
opportunity to say that such a handicap should be provided at every stage of
promotion throughout their career.

The above rifle has been modified as regards the members belonging to the
Scheduled Castes and the Scheduled Tribes, by the Constitution (Seventy-seventh
Amendment) Act, 1995.

The 77th Amendment, 1995 has been upheld by the Supreme Court in
Commissioner of Commercial Taxes, A.P. Hyderabad v. G. Sethumadhava
Rao.
 Article 16 25

Exclusion of 50% Ceiling w.r.t. Carry Forward Reserved Vacancies

[Article 16(4B)]
In Indra Sawhney v. Union of India, the majority had ruled that operation of
carry forward rule should not result in breach of 50% rule. This while would no
more be followed after the enactment of the Constitution (Eighty-first
Amendment) Act, 2000.

This new Clause (4B) enables the State to carry forward the unfilled reserved
vacancies to be filled in any succeeding years so as to remove the backlog,
notwithstanding the rule of 50% ceiling.

Reservation in Promotion: Catch-up Rule Negated- 85th Amendment, 2001

A five-Judge Constitution Bench of the Supreme Court, in Ajit Singh v. State of
Punjab, ruled that the primary purpose of Article 16(4) and Article 16(4A) was
to provide due representation to certain classes in certain posts.

The Apex Court further observed that the rule of reservation gave accelerated
promotion, but it did not give the accelerated consequential seniority. The Court
explained that a reasonable balancing of the rights of general candidate and roster
candidate would be achieved by following the catch-up rule.

According to this rule if ‘in case any senior general candidate at level 2 reaches
level 3 before the reserved candidate (roster point promotee) at level 3 goes
further up to level 4, in that case the seniority at level 3 has to be modified by
placing such a general candidate above the roster promotee reflecting their inter
Se seniority at level 2.”

To negate the effect of the above judgments, Article 16(4A) has been amended
by the Constitution (85th Amendment) Act, 2001. In the amended Clause (4A)
of Article 16, in place of the words “in matter of promotion to any class”, the
words “in matter of promotion with consequential seniority to any class” have
been substituted.

Principles of Reservation do not apply to Isolated Post

A five-Judge Constitution Bench of the Supreme Court in Post Graduate
Institute of Medical Education and Research, Chandigarh v. Faculty
Association, reiterated with approval, the view held in Chakradhar Paswan v.
State of Bihar and ruled that there would have to be plurality of posts for
reservation. Allowing a review petition moved by the Faculty Association of the
 Article 16 26

P.G.I., Chandigarh, and the Court held that any attempt at reservation, by
whatever means in a single post cadre, even through the device of rotation of a
roster, was “bound to create 100% reservation in such cadre”. Holding that there
was need for reservation for the members of the SCs/STs and OBCs, and that
such reservation was not confined to the initial appointment in a cadre but also to
the appointment In promotional post, the Court explained: “In making
reservations for the backward classes, the State cannot ignore the fundamental
rights of the rest of citizens”.

Earlier, the Supreme Court in Union of India v. Madhav Gajanan Chaubal,

had held that a rule providing reservation in a single post would not be
unconstitutional.

A Division Bench of the Supreme Court in State of Karnataka v. Govindappa,

relied upon the decision in PGI case and held that in the cadre of lecturers single
and isolated posts in respect of different disciplines could exist as a separate
cadre. Since there was no scope for inter- changeability of posts in the different
disciplines, each single post in a particular discipline had to be treated as a single
post for the purpose of reservation within the meaning of Article 16(4). Rule of
reservation, therefore, would not apply to such single isolated post, the Court
ruled.

Offices under a Religious or Denominational Institution [Article 16(5)]

Clause (5) of Article 16 is the third exception to the general rule of equality of
opportunity contained in Article 16 (1) as also Clause (2). Clause (5) provides
that a law may prescribe 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.” It, thus, permits that an office in
connection with the affairs of Hindu religion or Hindu religious denomination
can be held only by a Hindu, if it is so provided in the document relating to it.
Likewise, any office under a Muslim institution may be required to be held only
by a Muslim. This exception may be read with the fundamental right to freedom
of religion contained in Articles 25 to 28 and the right of the minorities under
Articles 29 and 30.
 Article 16 27

Equal Pay for Equal Work

In Randhir Singh v. Union of India, the Supreme Court enunciated the principle
of “equal pay for equal work”. The Court observed that it was true that the
principle of “equal pay for equal work” was not expressly declared by the
Constitution to be a fundamental right. But, it certainly was the constitutional
goal. The Court held that this principle could be deducted from Articles 14 and
16, when these provisions were construed in the light of the Preamble and Article
39(d) of the Constitution. The Court further laid down that the principle could be
properly applied to cases of unequal scales of pay based on no classification or
irrational classification.

Again, in Daily Rated Casual Labour (P & T) v. Union of India, the Supreme
Court held that the daily rated casual labourers in P & T Department, who were
doing the similar work as done by the regular workers, were entitled to minimum
pay in the pay scale of the regular workers plus dearness allowance but without
increments. Classification of employees into regular employees and casual
employees for the purpose of payment of less than minimum pay, the Court held,
was violative of Articles 14 and 16(1) of the Constitution. The Court further
declared that denial to them of minimum pay amounted to exploitation of labour.
The Government could not take advantage of its dominant position. Rather, it
should be a model employer. Denial of equal pay only on the basis of source of
recruitment has been held improper.

In Federation of All India Customs and Central Excise Stenographers

(F.A.I.C. & C.E.S.) v. Union of India, on the basis of the recommendations of
the Third Pay Commission, 1973, the Central Government fixed different pay
scales for Stenographers Grade I working in Central Secretariat and those
attached to the Heads of Subordinate Offices. While, the former were given
higher grade, the latter were granted lower scale of pay.

The Supreme Court, upheld the differentiation in the pay scales and ruled that
although “equal pay for equal work” was a fundamental right, but equal pay must
depend upon the nature of the work done and that it could not be judged by the
mere volume of work. There might be qualitative difference as regards reliability,
responsibility and confidentiality. Functions might be the same but the
responsibilities would make a difference. The rule of “equal pay for equal work”,
 Article 16 28

is a concomitant of Article 14, but the Court explained that “equal pay for unequal
work’ would be a negation of that right. If the differentiation had been sought to
be justified in view of the nature and the type of the work done, then, on
intelligible basis, the same amount of physical work might entail different quality
of work. It would, therefore, vary, depending upon the nature and culture of
employment. Although the duties of the petitioners and their Secretariat
counterparts were identical, their functions were not identical. The Supreme
Court, therefore, justified the differentiation on the ground of dissimilarity of the
responsibility, confidentiality and the relationship with public, etc.

Granting different pay scales to employees belonging to same cadre, based on

educational qualifications has been held not discriminatory. Likewise, distinction
between trained and untrained lecturers, for purposes of prescribing pay scales,
has been held valid and reasonable.

The rule of “equal pay for equal work” is not always easy to apply. There may be
inherent difficulties in comparing and evaluating work done by different persons
in different organisations or even in the same organisation. It is not an abstract
doctrine. The judgment of administrative authorities concerning the
responsibilities which attach to the post and the degree of reliability expected of
an incumbent, would be a value judgment of the authority concerned, which if
arrived at bona fide, reasonably and rationally, was not open to interference by
the Court. The nature of world the sphere of work, duration of work and other
special circumstances, if any, attached to the performance of duties, would have
also to be taken into consideration while working the doctrine of “equal pay for
equal work”. The rule has been held not applicable where there was difference in
the mode of recruitment, qualifications and promotion among persons though
holding same posts and performing similar work.

Again, pay parity, between employees of State Government and Central

Government cannot be claimed on the basis of identity of designation. Also,
temporary Ad hoc, daily wagers or casual workers like N.M.Rs., have been held
not entitled to equal pay with regularly employed permanent staff in the
establishment.

In S.C. Chandra v. State of Jharkhand, the Apex Court held that teachers in
schools could not be equated with clerks in Government Corporation or State
Government.
 Article 16 29

The Court also referred to the decision in State of T.N. v. M.R. Alagappan,
wherein the Apex Court observed that substantial similarity in duties and
responsibilities and interchangeability of posts, might not also necessarily attract,
the principle of ‘equal pay for equal work’ when there were other distinguishing
features.

ARTICLE 16 AS A BUNDLE OF CONTRADICTIONS

Article 16 of the Constitution of India is a bundle of contradictions, as on the one

hand it deals with equality of opportunity in matters of public employment, and,
on the other, it enables the government to provide for reservation in public
employment.

Article 16 of the Constitution is part of the Fundamental Rights and provides for
equality in the matters of employment in public employment. Many people feel
that this Article, instead of equality in these matters, perpetuates the inequalities
and offers a framework of contradiction. The Fundamental Rights should ideally
provide the measures vide which the equality is ensured but the exceptions
provided to this right overweigh the right provided.

Article 16 provides that there shall be equality of opportunity for all citizens in
the matters of employment or appointment to any office under the State. This
Article also provides that no citizen shall be ineligible for any office or
employment under the State on grounds only of religion, race, caste, sex, descent,
and place of birth or any of them.
After having stated the above, several exceptions are also provided for. Place of
residence may be laid down by the legislature as a condition for particular classes
of employment or appointment in any State or any local authority. Further, the
State may reserve any post or appointment in favour of any backward class of
citizens, who, in the opinion of the State, are not adequately represented in the
services under that State. In addition, the offices connected with the religious or
denominated institutions may be reserved for the members practicing that
particular religion.

The most important and controversial exception pertains to the provisions of

Article 16(4) relating to the claims of the members of the Scheduled Caste and
Scheduled Tribe communities in the matters of appointment to the services and
posts under the Union and the States, to be consistent with efficiency in
administration as far as possible (Article 335). The Supreme Court has held that
 Article 16 30

while the provisions of Article 16(4) are without any limitation upon the power
of reservation, yet it has to be read with the provisions of Article 335 for
maintenance of efficiency in administration. The Apex Court also held that the
total reservation under Article 16(4) should not exceed 50 per cent.

Detailed study of the provisions of the Article 16 reveals that while originally this
Article aimed at protecting the rights of common man with regard to equality of
opportunity but gradually, due to the need felt by the government to extend the
benefit of reservation to the other backward classes and also the political
considerations, its focus has now shifted to providing the benefit of reservation
to the backward classes and the SC/ST. But one thing has been confirmed that the
extension of the benefit cannot be arbitrary.

Various pronouncements of the Supreme Court of India during the past almost
six decades have plugged the gaps in the provisions of this Article and also
provided a standard framework for extending the benefit of reservation in future
to any other categories. The measures that looked to be controversial initially
have also been settled by the judgments of the highest court of law in the country.

AN EPILOGUE

The reservation policy in India in all sectors has become a disturbing and cyclical
process. Initially with the introduction of constitution it provided reservation for
only SC’s and ST’s but later on OBC were included and now the other minorities
are demanding reservation as well, which would ultimately lead to a situation
where the seats left for the majority would not be proportional with their
population. This therefore, becomes an unending issue, rather than an equal
opportunity issue.

It’s not that only developing or underdeveloped countries are facing sociological
problems because these problems still persist in the most developed nation in the
world like that of USA. But in USA there is no reservation policy as such and
there is an affirmative action program for the minorities and especially for the
African-Americans. India being a developing country is slogging in almost all
facets to achieve its 2020 mission but for that there is a serious need for
reconsideration of the reservation policy in India because the reservation policy
 Article 16 31

compromises with the efficiency of a Country by not sincerely recognizing the

merits of backward classes which therefore hamper the development of a country.

BIBIOGRAPHY

BOOKS

 Kumar, Narender. Constitutional Law, 1st Edition. Faridabad:

Allahabad Law Agency, 2011

WEBSITES

 <http://www.competitionmaster.com/Category.aspx?ID=e3d407c1
-73b7-43df-ae5c-0c449475070c>
 <http://www.lawyersclubindia.com/articles/Article-16-4-of-Indian-
Constitution-and-Hohfeldian-Concepts-1847.asp>
 <http://www.goforthelaw.com/articles/fromlawstu/article60.htm>