By Neha Choudhary
Introduction
The Constitution of India provides certain provisions for its citizens to ensure their rights are protected and they are being treated equally in all aspects. Every citizen of the country is entitled to the fundamental rights enshrined in Part III of the Constitution that safeguards them from any inequality and injustice.
Among all the fundamental rights provided by the Constitution, the right to equality plays an important role for every individual.
After mentioning the right to equality in Article 14 and ensuring that no individual is discriminated against based on race, religion, caste, sex, and place of birth in Article 15, the Constitution also administers the right to opportunity in matters of employment in Article 16.
Thus, this Article helps in understanding Article 16.
Article 16 – Equality of opportunity
“The High Court is a Constitutional and an autonomous authority subordinate to none therefore nobody can undermine the Constitutional authority of the High Court. If, rules are not in consonance with the philosophy of our Constitution and the same may be modified and no appointment in contravention thereof should be made.
It is necessary that there is strict compliance with appropriate Rules and the employer is bound to adhere to the norms of Articles 14 & 16 of the Constitution before making any recruitment.” [1]
Article 16 of the Constitution has been implemented as the general rule that provides the citizens of the country (no foreigner or refugee) with equity and equal opportunity to employees irrespective of their background or gender with a special recommendation under the State without any arbitrariness.
Article 16(1) of the Constitution provides that, “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” and according toArticle 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”.
Clause 1 of Article 16 guarantees freedom in the matters of employment under the government sectors only and case of any violation of the right by the officials or authorities, the offender shall be penalized for such infringement.
However, if a private sector provides the job opportunity to the individuals under the ambit of Article 16 of the Constitution to perform their moral duty, the sector is said to make an outstanding effort to provide equality to every citizen though not being bounded to perform such duty.
Article 16 (1) of the Constitution assures such opportunity under the state or center mentioned under Article 12 and not to the private sector and thus in case of any refusal of the employment by any private body or a corporation, the individual cannot seek to the court for infringement of the fundamental right under Article 16.
It can be seen from the judgment of the State of J&K. Vs K.V.N.T. Kholo[2] where it was observed that Article 16 of the Constitution is validly applicable on the government sectors, the state, the central government, and their subordinates and every individual has the right to appointment under the state based on their capabilities.
“The expression ‘Matters relating to employment and appointment’ must include all matters in relation to employment both prior and subsequent to the employment which is incidental to the employment and form parts of the terms of the conditions of such employment.”[3]
What are the Exceptions to Article 16?
Every fundamental right provided under part III of the Constitution to the citizens of the country is to ensure that they are not facing any hardships or injustice due to their background or gender and are treated equally in every aspect and have freedoms and rights to live their life as per their choices.
However, every fundamental right guaranteed is universal but not absolute as it also specifies certain exceptions and restrictions.
These exceptions under Article 16 stand at utmost importance as they protect the interests of the minority communities i.e. SCs, STs, or OBCs. The requirement for these exceptions is the upliftment of the weaker section of the society which has been exploited and subjugated over the years and thus would eventually develop the country as a whole.
Article 16 in its exceptions mentions special provisions for aforementioned sections for example: reserving seats in government jobs for domiciled sections.
The scope of the term mentioned in the Article has been widened by the precedent and the interpretations over the years. The ambit of the expression ‘equity in employment opportunity’ can be interpreted as and include:
- Access to jobs.
- Conditions of employment.
- Relationships in the workplace.
- The evaluation of performance and
- The opportunity for training and career development for all the citizens of the country.[4]
However, the ‘Equality in opportunity’ in Article 16(2) shall not mean that the state cannot make special provisions or recommendations for the deprived sections of the society as reasonable classifications are valid for the betterment of those who are needed to be classified for the social justice and their advancement.
The provisions related to the legitimate distinction and providing opportunities or advantages to those sections of the society has been explicitly mentioned in Article 16(3), 16(4), (4A), (4B), 16(5), and 16(6) of the Constitution. These clauses mention the special provisions by the concerned government authorities.
Article 16(3) of the Constitution quotes that, “Nothing in this Article shall prevent Parliament from making any law prescribing, regarding a class or classes of employment or appointment to any office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.”
Article 16(3) provides the exceptional powers to the parliament to make provisions for the residents of a particular state and union territory for example the parliament can make a rule that only the residents of Delhi are eligible to apply for the particular job under state but the applicant must have the domicile certificate while applying.
Moreover, the Public Employment (Residence Requirements) Act, 1957 was enacted by the parliament to make the residence a necessary factor in public employment in some states i.e. Andhra Pradesh, Manipur, Tripura, and Himachal Pradesh.
However, it was later abolished in major states in 1974, due to lack of candidates, and as per the recent records; the act is still applicable with a special provision in Article 371D for Andhra Pradesh and Telangana.
Article 16 (4) of the Constitution provides that, “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 term ‘backward class’ has been used in Article 15 (4) and thus similarly been interpreted in Article 16 (4).
Furthermore, being in the similar nature of uplifting the weaker sections and providing reservation for their benefit, Article 16(4) provides special provisions and opportunities for the citizens that belong to the backward classes to apply for employment under the state.
However, in the case of M.R. Balaji Vs the State of Mysore,[5] the order has been passed in the aspect of Article 15(4) and it was held that poverty, occupation, place of habitation, or other necessary factors shall be considered for ascertaining a particular class as a backward sector rather than just the caste of a person.
Certain limits have been set by the Supreme Court under Article 16(4) –
- Quantitative Limit – The maximum reservation limit is set to be 50%
- Qualitative Limit – Theory of creamy layer
- Backwardness and inadequacy of representation, place of inherent powers, imperative to use
- The need for overall administrative efficiency complies with Article 335.
Article 16(4) can be understood with an example i.e. UPSC has 1000 seats in 2020, 75 seats out of them were reserved for STs but only 50 ST candidates were selected therefore the remaining 25 seats will be added in the year 2021.
In the case of Devadasan Vs Union of India,[6] the Government framed the “carry forward rule” that monitors the appointment in services under the state of those citizens who belong to backward classes was given the Constitutional validity.
In the case of, K.C. Vasanth Kumar Vs The state of Karnataka,[7] it was held that there must be a valid reason for reservation and must pass the reasonable test to ensure that the reservation made for citizens of the backward class was necessary.
It was also observed that reservation policy shall be reevaluated every five years or in case if a class has reached that point where reservation is not required anymore.
In the case of, Rajasthan State Electricity Board Accountants Association, Jaipur Vs Rajasthan State Electricity Board,[8] it was held valid by the Supreme Court that in the matter of promotion based on educational qualifications, the authorities can deny the promotion of the employee to the higher post possessing lesser qualifications and thus shall not be an infringement of the fundamental right.
In the case of T.M.A. Pai Foundation Vs State of Karnataka[9] and P.A. Inamdar Vs State of Maharashtra[10] it was held by the Supreme Court that reservations cannot be enforced on Private Unaided educational institutions.
Article 16(5) of the Constitution provides the exception and states that “Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”
In simple terms, it means that there is an exception for the appointment of religious and communal institutions to any government post.
Article 16(5) provides the ‘freedom to manage religious affairs’ mentioned in Article 26 against the ‘equality of opportunity in the matter of public employment’ of Article 16.
What is the history of the OBC Reservation?
In today’s time, there have been major developments as to the reservations and other provisions provided to the weaker sections of the society for their betterment, advancement, and upliftment.
Article 16(4) of the Constitution has not always provided the reservation to the OBCs candidates, however, it was only possible after a lot of discussions, commissions, and the efforts of the concerned authorities that these quotas and reservations provided in matters of employment are available.
All the population of OBC (Other Backward Caste) gets the 27 % reservation in the government jobs and admissions in colleges (engineering and medical). The Constitution in its Amendments and improvement has come so far to provide 27% reservations.
In 1979, the Backward Class Commission was also known as the Mandal Commission was formed by the Janta Dal government which came across with the necessity for such provisions.
The Mandal Commission was established under Article 340 which states that the president can establish a commission for examining the social and financial status of the disadvantaged and unprivileged sections.
In 1980, the report on the Mandal commission was submitted suggesting the 27% reservation and stating the list of 3743 castes that were categorized as OBCs, however, SCs and STs were not combined in that list. The commission was thus implemented in 1990 and it was since 1990 that OBCs were provided 27 % reservation out of the total.
Major Amendments
The reservation system in India had not been provided through any specific act or legislation from the very beginning. The Constitution has tried to guarantee the citizens of the country with the rights and freedoms to ensure their equal treatment in every manner possible.
The reservation scheme in India has developed over the years for providing equality of opportunity in matters of employment and to make sure that no one is deprived of such opportunity due to their deprived background or gender.
These systems have been added in the Constitution after various Amendments i.e. the 77th Amendment which introduced Article 16(4)(A) and allowed reservation for SCs and STs in promotions, the 81st Amendment that introduced Article 16(4) (B), and Constitutional validity of the carry-forward rule, the 85th Amendment that provided consequential seniority to such candidates who have undergone accelerated promotion and 103rd Amendment inserted clause 6 in Article 16.
In the case of Indra Sawney Vs Union of India[11], the reservations were given Constitutional validity by the Supreme Court and held that the reservations would be restricted to initial appointments and would not extend to promotions and thus the total reservation must not exceed 50 %.
However, in 1995 Article 16 (4) (A) was inserted by the 77th Amendment Act to continue the reservation of SCs and STs in promotion which again amended by the 85th Amendment Act to provide the benefit of ‘consequential seniority to SCs and STs who were being promoted by reservation.
And thus Article 16(4) of the Constitution was approved by the Union cabinet to justify the reservation in promotions and appointments. Moreover, the States can now make special provisions for reservations of promotion for any class of the SCs and STs in the services under the state.
In the case of M. Nagaraj Vs Union of India[12], it was observed that when there is a reservation of promotion, it has to be ensured that the government establishes the backwardness of SC/ST beneficiaries. It was held that individuals “in the ‘creamy layer of OBCs” don’t have the right to be the beneficiaries of the reservation policy.”
In the case of, Union of India and others Vs Hemraj Singh Chauhan and others[13], it was observed that “the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution the guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from the guarantee of equality under Article 14 of Constitution.”
However, from the recent judgment regarding the applicability of Article 16 (4) (A), it is observed that the decision regarding this has to be reconsidered i.e. in the case of Mukesh Kumar & Anr. Vs State of Uttarakhand & Ors.[14], the court interpreted the provisions of Article 16(4) (A) of the Constitution of India regarding reservation in promotion and the issue before the Court was ‘whether the State Government is bound to make reservations in public posts and whether the decision by the State Government not to provide reservations can be only based on quantifiable data relating to the adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes’.
It was held in this case that:
“The State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such a provision, the State has to collect quantifiable data showing the inadequacy of representation of that class in public services.
If the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary on account of the inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution.”
According to the recent judgment of the Supreme Court, it was even clarified that “The 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired a disability after having entered the service.”
The court held that the quota for the disabled cannot be denied in government job promotions. [15]
The carry forward rule of the unfilled vacancies was added in Article 16 (4) (B) of the Constitution which means that unfilled reserved vacancies can be carry forward every year without limits.
Article 16(4)(B) was instituted by the 81st Amendment and states, “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 percent reservation on a total number of vacancies of that year.”
In 2019, through the 103rd Amendment Act, the Central Government of India introduced the new clause i.e. clause 6 in Article 16 which states that:
“Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten percent. of the posts in each category.”
It provides the reservation for Economically Weaker Sections by providing them 10% quota among General Category candidates in government jobs and educational institutions
According to the recent stats, about 60% of seats are reserved in India for various sections like ST, SC, OBC, and EWS in Government jobs and Higher Education Institutions. However, that means that only 40% of seats are available under merit which not only includes the general category candidates but other categories like SC, ST, OBC, and EWS can also compete.
The SCs are STs are provided 15% quota and 7.5% quota respectively in jobs or higher educational institutions.[16]
Conclusion
Every citizen of the country is guaranteed certain rights and freedoms enshrined under part III of the Constitution. The fundamental right to which every individual is entitled to is the right to fairness without arbitrariness which however includes the right to equality of opportunity in employment.
Article 16 of the Constitution provides the right of equality in sectors of public employment. However, these rights are not absolute as they provide certain exceptions as well which are provided under Article 16 from clause (3) to (5).
Any provision needs to be amended from time to time to ensure the advancement of the country and thus Article 16 has also been enhanced numerous times for the best.
There have been a various Amendments that altered Article 16 and inserted clauses that would benefit those sections of the society which are deprived and require upliftment i.e. OBCs, SC, ST, and EWS. These provisions were inserted in Article 16 (4) (A) and (4) (B) and Article 16 (6) of the Constitution through the 77th, 81st, 85th, and 103rd Amendment Act.
References
- Renu and Others Vs District and Sessions Judge, Tis Hazari and Another, CIVIL APPEAL NO. 979 OF 2014 ↑
- State of J and K. Vs K.V.N.T. Kholo, AIR 1974 S.C ↑
- Mahendra P. Singh, VS N. Shukla’s Constitution of India 220-223 (11th ed., 2008) ↑
- M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009) ↑
- M.R. Balaji Vs the State of Mysore, AIR 1963 S.C. 643 ↑
- Devadasan Vs Union of India, AIR 1964 S.C. 179 ↑
- K.C. Vasanth Kumar Vs The state of Karnataka, 1985 AIR 1495 ↑
- Rajasthan State Electricity Board Accountants Association, Jaipur Vs Rajasthan State Electricity Board, A.I.R 1997 S.C 882 ↑
- T.M.A. Pai Foundation Vs State of Karnataka, (2002) 8 SCC 481 ↑
- P.A. Inamdar Vs State of Maharashtra, 2005 AIR (SC) 3226 ↑
- Indra Sawney Vs Union of India, AIR 1993 SC 477 ↑
- M. Nagaraj Vs Union of India, (2006)8 SCC 212 ↑
- Union of India and others Vs Hemraj Singh Chauhan and others, CIVIL APPEAL NO.2651-52 OF 2010 ↑
- Mukesh Kumar & Anr. Vs State of Uttarakhand & Ors., Civil Appeal No. 1226 of 2020 ↑
- Abraham Thomas, “Can’t deny disabled quota in govt job promotions: SC” available at hindustantimes.com (last visited on July 15, 2021) ↑
- ALEX ANDREWS GEORGE, “Reservation in India – Explained in Layman’s Terms” available at clearias.com/ (last visited on July 15, 2021) ↑