constitution article 16.docx

ARTICLE 16

CONSTITUTIONAL LAW

ARTICLE 16

Submitted by:-

Rachit Gupta

B.A. LL.B. 4th Semester

27/10

THE CONSTITUTION OF INDIA Page 1

ARTICLE 16

ContentsContents........................................................................................................................................................2

INDEX OF AUTHORITIES.......................................................................................................................3

CASES.......................................................................................................................................................3

BOOKS REFERRED...................................................................................................................................4

WEBSITES................................................................................................................................................5

Article 16 of The Constitution of India says:-.........................................................................................5

Nature and Scope.......................................................................................................................................7

[Article 16(1)].............................................................................................................................................7

Equality of Opportunity-State may lay down Qualification or conditions........................................8

Members of Separate and Independent Classes of Service................................................................8

Correction of Date of Birth...................................................................................................................9

Cut-off Date for Eligibility....................................................................................................................9

Equality of Opportunity-Process of Selection...................................................................................10

Written Test vis-à-vis Viva Voce Test................................................................................................10

Annual Confidential Report-Communication of Entries..................................................................11

Filling up the Posts Over and Above Those Advertised....................................................................11

Regularisation of Ad Hoc Employees.................................................................................................11

Absorption of Eligible persons............................................................................................................12

Compassionate Appointment/Die-in-harness Scheme......................................................................12

ARTICLE 16(2).......................................................................................................................................13

No Discrimination on the Ground of Religion, Race, Etc.................................................................13

Article 16(3).............................................................................................................................................14

Requirement as to Residence in a State.............................................................................................14

ARTICLE 16(4).......................................................................................................................................14

Scope of Article 16(4)..........................................................................................................................15

Reservation in Promotion [Article 16(4A)]...........................................................................................18

ARTICLE [16(4B)]...................................................................................................................................19

ARTICLE 16(5)............................................................................................................................................19

EQUAL PAY FOR EQUAL WORK.............................................................................................................20


ARTICLE 16

INDEX OF AUTHORITIES

CASES1. A. Rajendran v. Union of India, AIR 1968 SC 507 : (1968) 1 SCR 721.

2. A.P.B.C.S. v. J.S.V. Federation, AIR 2006 SC 2814.

3. All India Station Masters and Assistant Station Masters Association Delhi v. Gen. Man.

Central Railway, AIR 1960 SC 384 : (1960) 2 SCR 311

4. All India Station Masters Association v. General Manager, Central Railway AIR 1960 SC

384.

5. Asha D. Bhatt v. Director of Primary Education, AIR 2003 Guj. 197.

6. Ashok Kumar Sonkar v. Union of India, AIR 2007 SC 1746.

7. Ashwani Kumar v. State of Bihar, AIR 1997 SC 1628.

8. Chitralekha v. State of Mysore, AIR 1964 SC 1823.

9. Dev Dutt v. Union of India AIR 2008 SC 2513.

10. Devi v. State of Maharashtra, 1986(1) SCR 743.

11. Diptimayee Parida v. State of Orissa AIR 2009 SC 935.

12. Government of A.P. v. K. Brahmanandum, AIR 2008 SC 3170.

13. Indian Drugs and Pharmaceuticals v. Workmen, (2007) 1 SCC 408.

14. Indra Sawhney v. Union of India AIR 1993 SC 477.

15. Jagannath Prasad Sharma v. State of Uttar Pradesh, AIR 1961 SC 1245.

16. K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495.

17. Kshetriya Kisan Gramin Bank v. D.B. Sharma, AIR 2001 SC 168.

18. Lila Dhar v. State of Rajasthan AIR 1981 SC 1777.

19. M. Nagaraj vs. Union of India (2006) 8 SCC 212.

20. M.R. Balaji v. State of Mysore, AIR 1963 SC 649.

21. M/s Eastern Coalfields Ltd. V. Anil Badyakar AIR 2009 SC 2534.

22. Mukul Saikia v. State of Assam AIR 2009 SC 747.

23. Narasimha Rao v. State of Andhra Pradesh AIR 1970 SC 422.

24. National Hydroelectric Power Corpn. V. Nanak Chand AIR 2005 SC 106.

25. P. Mohanan Pillai v. State of Kaerla, AIR 2007 SC 2840


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26. Pandurangarao v. Andhra Pradesh Public Service Commission AIR 1963 SC 268.

27. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 :

(2002) 3 SCR 100.

28. Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319.

29. Rajasthan P.S.C. v. K.K. Paliwal, AIR 2007 SC 1746.

30. Randhir Singh v. Union of India AIR 1982 SC 879.

31. S.P. Bhattacherjee v. S.D. Majumdar, AIR 2007 SC 2012

32. S.P. Gupta v. State of J & K, 2004 (5) SCALE 90.

33. State of Karnataka v. Umadevi, AIR 2006 SC 1806.

34. State of Kerala v. N.M. Thomas, AIR 1976 SC 490.

35. State of M.P. v. J.S. Bansal, AIR 1998 SC 1015 : (1998) 3 SCC 714.

36. State of Mysore v. Narasinga Rao, AIR 1968 SC 349.

37. State of Orissa v. Rajkishore Nanda, AIR 2010 SC 2100.

38. State of U.P. v. Ram Adhar AIR 2008 SC 3243.

39. State Of West Bengal & Anr. vs West Bengal Minimum Wages Civil Appeal No. 3855 of

2007.

40. State Pvt. Colleges Stop-Gap Lecturers Association v. State of Karnataka, (1992) 2 SCC

29.

41. Suraj Bhan Meena & Anr. v. State Of Rajasthan SLP No. 6385 OF 2010.

42. T. Devadasan v. Union of India AIR 1964 SC 179.

43. T. Devadasan v. Union of India, AIR 1964 SC 179.

44. T. Devadsam v. Union of India, AIR 1964 SC 179 : (1964) 4 SCR 680

45. Triloknath v. State of J & K, 1969 1 SCR 103 : AIR 1969 SC 1.

46. Union of India v. Harnam Singh AIR 1993 SC 1367.

47. Union of India v. Parul Debnath AIR 2009 SC 2809.

48. Union of India v. Vinod kumar, AIR 2008 SC 5.

49. UPSC v. Girish Jayantilal Vaghela, (2006) 2 SCC 482.

50. Venkataramana v. State of Madras, AIR 1951 SC 229 : 1951 SCJ 318.

51. Yogesh Kumar v. Government of NTC, Delhi, AIR 2003 SC 1241.

BOOKS REFERRED


ARTICLE 16

1. Basu, Durga Das, ‘Commentary on the Constitution of India, 8th Edition Vol. I, 2007,

Wadhwa Co.

2. De, D.J. ‘The Constitution of India’, 3rd Edition, Asia Law House.

3. Prof. Kumar, Narendra, ‘Constitutional law of India’, 7th Edition, Allahabad law agency.

4. Jain, M.P., ‘Indian Constitutional Law’, 5th Edition, Vol. I, Lexis Nexis Butterworths

Wadhwa and Co.

WEBSITES

1) www.lawlink.com

2) www.manupatra.com

3) www.indiankanoon.org

4) www.judis.nic.in

5) www.manupatra.com

6) www.supremecourtofindia.nic.in

Article 16 of The Constitution of India says:-


ARTICLE 16

1) There shall be equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the State.

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.

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 1[ 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.

4) Nothing in this Article shall prevent the State from making any provision for the

reservation of appointments or posts in favour of any backward class of citizens which, in

the opinion of the State, is not adequately represented in the services under the State.

2[4A) Nothing in this article shall prevent the State from making any provision for reservation

in matters of promotion 3[with consequential seniority] to any class or classes of posts in the

services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the

opinion of the State, are not adequately represented in the services under the State.]

4[(4B) Nothing in this Article shall prevent the State form considering any unfilled vacancies

of a year which are reserved for being filled up in that year in accordance with any provisions

for reservation made under Clause (4) or (4A0 as a separate class of vacancies shall not be

considered together with the vacancies of the year in which they are filled up for determining the

ceiling of fifty per cent reservation on total number of this 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.

1 The italicized words were substituted by the Constitution (Seventh Amendment) Act, 1956, s. 292 Clause (4A) inserted by the Constitution (77th Amendment) Act, 1995, s.23 Inserted in Clause (4-A) by Constitution (85th Amendment) Act 2001, s.2 (w.e.f. June 17, 1995)4 Clause (4B) inserted by the Constitution (Eighty-First Amendment) Act, 2000, s.2


ARTICLE 16

Nature and Scope

The main object of Article 16 is to create a constitutional right in equality of opportunity and

employment in public offices.5 Right to equality now not only means the rights not to be

discriminated against, but also protection against arbitrary or irrational action of the State. The

approach of the Court is to curb the arbitrary exercise of power by the State against individual

and there is corresponding explanation on the concept of the State under Article 12 of the

Constitution.6 The fundamental right under article 16 is available event to a delinquent

employee.7 The guarantee under Article 16(1) is to each individual citizen and therefore, every

citizen who is seeking employment or appointment to an office under the State is entitled to be

afforded an opportunity for seeking such employment or appointment whenever it is intended to

be filled.8Article 16(2) is also an elaboration of a facet of Article 16(1). These two clauses thus

postulate the universality of Indian Citizenship. As there is Common citizenship, residence

qualification is not required for service in any State. Equal protection of the laws does not

postulate equal treatment of all persons without distinction; it merely guarantees the application

of the same laws alike without discrimination to all persons similarly situated.9 Clause (4) of

only permits reservation for ‘backward classes of citizens’ who are not, in the opinion of the

State, adequately represented in the services of the State. It does not permit reservation for any

person who does not belong to the category of ‘backward classes’, nor does it enable the State to

reserve posts on communal lines.10 A distribution of offices amongst communities according to a

fixed ratio or quota; or a provision for direct recruitment of persons ‘to remove communal

disparity’11 infringes Clauses (1) and (2) of Article 16.

[Article 16(1)]

5 UPSC v. Girish Jayantilal Vaghela, (2006) 2 SCC 482.6 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : (2002) 3 SCR 100.7 State of M.P. v. J.S. Bansal, AIR 1998 SC 1015 : (1998) 3 SCC 714.8 T. Devadsam v. Union of India, AIR 1964 SC 179 : (1964) 4 SCR 680; A. Rajendran v. Union of India, AIR 1968 SC 507 : (1968) 1 SCR 721.9 All India Station Masters and Assistant Station Masters Association Delhi v. Gen. Man. Central Railway, AIR 1960 SC 384 : (1960) 2 SCR 311 : Jagannath Prasad Sharma v. State of Uttar Pradesh, AIR 1961 SC 1245. 10 Venkataramana v. State odf Madras, AIR 1951 SC 229 : 1951 SCJ 318 .11 Triloknath v. State of J & K, 1969 1 SCR 103 : AIR 1969 SC 1.


ARTICLE 16

Equality of Opportunity-State may lay down Qualification or conditions

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.12 The qualifications prescribed

may, therefore, besides mental excellence, include physical fitness, sense of discipline, moral

integrity, and loyalty to the State.13

However, the qualifications or the selective test must not be arbitrary. These must be

based on reasonable ground and must have nexus with the efficient performance of the duties of

the particular office or post. In Pandurangarao v. Andhra Pradesh Public Service

Commission14 the Rule relating to qualifications for the appointment to the posts of District

Munsiffs, by direct recruitment prescribed that “the applicant must have been practicing as an

Advocate in the High Court and he must have been actually practicing in the courts of Civil or

Criminal jurisdiction in India for a period not less than three years”. 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 Pradesh High Court but in Mysore High Court, was

rejected. The Supreme Court held that the Rule which required 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. The

rule was struck down as unconstitutional and ultra vires.

Members of Separate and Independent Classes of Service

12 Union of India v. Vinod kumar, AIR 2008 SC 5.13 State of Mysore v. Narasinga Rao, AIR 1968 SC 349.14 AIR 1963 SC 268.


ARTICLE 16

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,15 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.16

Correction of Date of Birth

In the matter of correction of date of birth, the Court requires that the employee should make an

application within time fixed by Rules or Orders and in absence of such Rule, within reasonable

time and not on the eve of retirement, unless prima facie evidence unimpeachable character was

produced.

In Union of India v. Harnam Singh,17 the Supreme Court cautioned the Courts, Tribunals

or High Court that-

“an application for change of date of birth should not be dealt with keeping in view only the

public servant concerned. The Court pointed out that any such direction for direction for

correction of the date of birth of the public servant concerned had a chain reaction, inasmuch as

others waiting for years, below him for their respective promotion got affected in the process and

some might suffer irreparable injury.

Cut-off Date for Eligibility

It is trite that ordinarily, the qualifications or extra- qualifications laid down for the recruitment

should be considered as on the last date for filing of the application.18 In Diptimayee Parida v.

State of Orissa19 the appellant, a candidate for the post of Anganwadi worker was held not

entitled to “extra 3 marks” reserved for married women, since the last date for filing the

application was 20-09-2000 and she got married in 2001. The Selection Committee, in

15 AIR 1960 SC 384.16 See also Kshetriya Kisan Gramin Bank v. D.B. Sharma, AIR 2001 SC 168.17 AIR 1993 SC 1367.18 Ashok Kumar Sonkar v. Union of India, AIR 2007 SC 1746.19 AIR 2009 SC 935.


ARTICLE 16

considering her marital status as on the date of selection rather than on the last date of preferring

applications was held to have acted with patent illegality.

It is well settled, supported be several decisions 20 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-

a) the date appointed by the relevant service rules;

b) 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

c) if there be no such date appointed then the eligibility criteria shall be applied, by

references to the last date appointed, by which the applications have to be received by the

competent authority.

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, if any. Deviation from the rules allows entry to

ineligible persons and derives many others who could have competed for the post. It is ruled that

public contracts are not largesse.21 In Lila Dhar v. State of Rajasthan,22 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-à-vis Viva Voce 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 case23 said that the marks must be minimal so as to avoid charges of

arbitrariness, though not necessary 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

20 See S.P. Bhattacherjee v. S.D. Majumdar, AIR 2007 SC 2012; P. Mohanan Pillai v. State of Kaerla, AIR 2007 SC 2840; Rajasthan P.S.C. v. K.K. Paliwal, AIR 2007 SC 1746.21 See Yogesh Kumar v. Gobernment of NTC, Delhi, AIR 2003 SC 1241.22 AIR 1981 SC 1777.23 Supra note 22.


ARTICLE 16

vis-à-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. 24

Annual Confidential Report-Communication of Entries

In Dev Dutt v. Union of India,25 the Apex Court, holding that fairness and transparency in

public administration required 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

violative of Article 16 read with Article 14.

Filling up the Posts Over and Above Those Advertised

It is trite that the State cannot make appointment to the posts over and above than the number of

posts advertised.26 In Mukul Saikia v. State of Assam,27 the Assam Public Service Commission

(APSC) advertised 27 posts of Child Development Project Officers (CDPOs). Pursuant to it a

selection process was held. The final select list prepared and published by Commission contained

the names of 64 candidates far in excess of the notified vacancies. The Apex Court, referring to

their earlier pronouncements,28 held that appointment could be made only to 27 posts and the

selection list got exhausted when all the 27 posts were filled.

Regularisation of Ad Hoc Employees

The Supreme Court has repeatedly deprecated the regularization and absorption of working as

part-time employees or an ad hoc basis,29 as it had become a common method of allowing back

door entries.30 It has been ruled that appointment made on contract basis or on daily wages or in

violation of Rules, being void ab initio cannot be regularised.31 Also that, regularization can only

be done in accordance with the Rules and not dehors the Rules.32 In State of U.P. v. Ram

24 S.P. Gupta v. State of J & K, 2004 (5) SCALE 90.25 AIR 2008 SC 2513.26 State of Orissa v. Rajkishore Nanda, AIR 2010 SC 2100.27 AIR 2009 SC 747.28 See Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319.29 Karnataka State Pvt. Colleges Stop-Gap Lecturers Association v. State of Karnataka, (1992) 2 SCC 29.30 Ashwani Kumar v. State of Bihar, AIR 1997 SC 1628.31 State of Karnataka v. Umadevi, AIR 2006 SC 1806.32 Indian Drugs and Pharmaceuticals v. Workmen, (2007) 1 SCC 408.


ARTICLE 16

Adhar,33 the Apex Court ruled that a temporary employee had no right to the post. There was no

principle of law, the Court said that a person appointed in a temporary capacity had a right to

continue till regular selection. Long continuance of employees on irregular basis, would not

entitle them, to claim equality with regularly recruited employees.34

Absorption of Eligible persons

In Union of India v. Parul Debnath,35 the Supreme Court distinguished between absorption of

eligible persons from regularisation of ad hoc employees. In this case, the respondent claimants

were appointed under the Andaman and Nicobar Islands H.G. Regulations, as members of the

Home Guard Organisation for three years. Since then they were continuously made to perform

duties of a regular nature. They were also deployed to work under the operational control and

supervision of the Police and the overall control of the administration without any break. They

had been working for periods ranging from 12 to 23 years. The High Court directed the appellant

to frame a scheme for the absorption of the respondents in the regular establishment of the

Andaman and Nicobar Islands, in one go and not in phases. Upholding the directions of the High

Court, the SC ruled that absorption of the respondents did not amount to new appointments and

that there would not arise any question of reservation of vacancies. The scheme was framed by

the authorities which provided for reservation of 20% of the vacant posts to accommodate the

respondents in a phased manner, while setting apart 80% of vacancies for other candidates. The

scheme framed was set aside by the Apex Court as it was held to be arbitrary and discriminatory.

The Scheme would have created a class within a class.

Compassionate Appointment/Die-in-harness Scheme

In matter of appointment, the State is obligated to give effect to the constitutional scheme of

equality as adumbrated in Articles 14 and 16. The Court, however, has carved out an exception

in favour of the children or other relatives of the officer who dies or who becomes incapacitated

33 AIR 2008 SC 3243.34 Government of A.P. v. K. Brahmanandum, AIR 2008 SC 3170.35 AIR 2009 SC 2809.


ARTICLE 16

while rendering service. The application for such appointment must be made without any

reasonable delay. In National Hydroelectric Power Corpn. V. Nanak Chand,36 application for

compassionate appointment, made after ten years of death of the father, was held improper. In

M/s Eastern Coalfields Ltd. V. Anil Badyakar,37 one Kalo Dome, in service of ECL died in

1981. There being dispute between his wife and his daughter as to who was the heir of the

deceased, it took almost 12 years when all heirs of the deceased submitted “No objection” in

favour of the respondent, who was then appointed on compassionate ground. The appointment,

however, was cancelled, being made after 12 years of the death of the employee.

ARTICLE 16(2)

No Discrimination on the Ground of Religion, Race, Etc.

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" in Article 16(2) bears the same meaning as in Article 15 and signifies differentiation

with a bias against a particular class or individual. Therefore, if the differentiation and bias are

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 C.B. Muthamma v. Union of India,38 the Supreme Court held Rule 8(1) of

Indian Foreign Service (Conduct and Discipline) Rules, 1961 and R 18(4) of the Indian

Foreign Service (Recruitment, Cadre Seniority a, Promotions) Rules, 1961, as discriminatory

against women. Rule 8(1) provided that a woman member of the service would obtain

permission of Government, in writing, before her marriage was solemnised39 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. But women may be barred from

employment in a particular employment if the discrimination is based not solely on the ground

36 AIR 2005 SC 106.37 AIR 2009 SC 2534.38 AIR 1979 SC 1868.39 See also Maya Devi v. State of Maharashtra, 1986(1) SCR743, wherein requirement that a married woman should obtain her husband’s consent applying for public employment was held invalid as unconstitutional.


ARTICLE 16

of sex on account of their non-suitability.

Article 16(3)

Requirement as to Residence in a State

Clause (3) empowers the Parliament to make "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".

In the exercise of the power conferred by Clause(3) of Article 16, Parliament enacted

the Public Employment (Requirement as to Residence) Act, 1957. The Act repealed all the laws

in force, prescribing any requirement as to residence, within a State or Union Territory, for

employment or appointment in that State or Union Territory with few exceptions.

In Narasimha Rao v. State of Andhra Pradesh,40 the Supreme 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 of a 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.

ARTICLE 16(4)

Clause (4) of Article 16 expressly permits the State to make "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''.

Scope of Article 16(4)

40 AIR 1970 SC 422.


ARTICLE 16

In T. Devadasan v. Union of India,41 popularly known as "carry forward rule case", the

Supreme Court considered the scope of Article 16(4). In this case, the carry forward rule,

regulating reservation of vacancies for candidates belonging to Scheduled Castes and Scheduled

Tribes, was struck down by the Court, as invalid and unconstitutional.

As a result of the application of the impugned 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.

In K.C. Vasanth Kumar v. State of Karnataka,42 five Hon’ble Judges constituting the

Bench of the Supreme Court expressed separate opinions on the issue of reservations. The

propositions which are discernible from their opinion may be summarised as follows—

(a) That, reservation in favour of Scheduled Castes and Scheduled Tribes must continue as

at present, without the application of a means test, for a further period not exceeding

15 years. However, reservation must not be allowed to become vested interest.

(b) In so far as the other Backward Classes are concerned, two tests should be

conjunctively applied for identifying them for the purpose of reservations, namely: (i)

they should be comparable to the SCs/STs in the matters of their backwardness; and

(ii) they should satisfy the means test, such as, a State Government, may lay down in

the context of prevailing economic conditions, since social and economic

backwardness differs from area to area.

(c) That, the policy of reservation should be revised every five years or so. Such review

would afford an opportunity—

(i) to the State of rectifying distortions arising out of particular facets of the

reservation policy, and

(ii) to the people to ventilate their views in a public debate on the practical impact of

the policy of reservation.

With a view to settle the law, 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,43

which is popularly known as Mandal Commission case. The issue was thoroughly examined

41 AIR 1964 SC 179.42 AIR 1985 SC 1495.43 AIR 1993 SC 477.


ARTICLE 16

by the Court in its historical prospective. The majority opinion on various aspects of

reservations may be summarised as follows:—

(1) 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.

In so laying down, the Court overruled M.R. Balaji44 and Devadasan45 and reiterated with

approval Thomas.46

(2) The words "provisions for the reservation of appointments/posts" in Article 16(4) do

not contemplate only one form of provision namely reservation simpliciter. The words

take in other forms of special provisions like preferences, concessions and

exemptions.47

(3) 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.48

(4) 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.49

(5) 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. The majority thus overruled M.R.

Balaji,50 and approved Balram.51

(6) 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

44 M.R. Balaji v. State of Mysore, AIR 1963 SC 649.45 T. Devadasan v. Union of India, AIR 1964 SC 179.

46 46 State of Kerala v. N.M. Thomas, AIR 1976 SC 490.47 The Court explained that Article 16(4 )permitted not only reservation of appointments/posts which was the highest form of special provision, but also preferences, concessions and exemptions, which were lesser forms of special provision.

48 Relying on this judgment, the Gujarat High Court in Asha D. Bhatt v. Director of Primary Education, AIR 2003 Guj. 197, held reservation to the extent of 2% for economically backward classes as contrary to Article 15.

49 See also on this aspect, Chitralekha v. State of Mysore, AIR 1964 SC 1823.50 M.R. Balaji v. State of Mysore, AIR 1963 SC 649.51 See also A.P.B.C.S. v. J.S.V. Federation, AIR 2006 SC 2814.


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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.

(7) 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. Reserved category

candidates getting selected in open competition on the basis of their merit, should not

be counted against the quota reserved for them.52

(8) 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.

(9) The carry forward of unfilled reserved vacancies is not per se unconstitutional.

However, the operation of carry forward rule

(10) It should not result in breach of 50% rule.53 The Court has overruled Devadasan54

wherein the carry forward rule was struck down on the ground that its application

resulted in reservation of more than 50% vacancies in favour of the backward classes

of citizens.

(11) Article 16(4) does not contemplate or permit reservation in promotions as well. The

reservations are thus confined to initial appointments only.55

(12) Reservation for backward classes should not be made in services and position where

merit alone counts.

Reservation in Promotion [Article 16(4A)]

In Indra Sawhney v. Union of India,56 (the Mandal Commission case), after taking into

52 The rationale behind imposing an upper ceiling of 50% enabled by Article 15(4) and 16(4) cannot be readily extended to the domain of political representation at the Panchayat level in Scheduled Areas. See Union of India v. Rakesh Kumar, AIR 2010 SC 3244. See also M. Sreedevi v. Union of Medical Sciences, A.P., JT 2000(8) SC 314. Such candidates are required to pay coaching fee at subsidised rate like other reserved candidates and not full fee required from general category candidates. See State of Rajasthan v. Jyoti Bala, AIR 2004 NOC 361 (Raj.).

53 After the incorporation of Clause (4B) in Article 16 by the Constitution (81st Amendment) Act, 2000, this observation would not stand in the way of the State to reserve posts in excess of 50% in respect to carry forward vacancies.

54 T. Devadasan v. Union of India, AIR 1964 SC 179.55 This rule wasaffirmed in Union of India v.Virpal Singh Chauhan, AIR 1996 SC 448. This rule stands nullified by the 77thAmendment, 1995 inrespect to SCs/STs.

56 Ibid 43. The Court overruled the law laid down over 30 years back in G.M., Southern Railway v. Rangachari,


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consideration all the circumstances, said that Article 16(4) did not contemplate or permit

reservation in promotions, though the expression "appointment" in Article 16(4), included

appointment by direct recruitment or by promotion or by transfer. The above rule laid down by

the Supreme Court has been modified as regards the members belonging to the Scheduled

Castes and the Scheduled Tribes, by the Constitution (Seventy-seventh Amendment) Act,

1995, which has added a new Clause (4A) to Article 16 which provides :

Nothing in this Article shall prevent the State from making any provision for reservation in

matters of promotion to any class or classes of posts in the services under the State in favour of

the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State are not

adequately represented in the services under the State.

Constitution Bench of this Court in M. Nagaraj vs. Union of India,57 observed:

State will have to show in each case the existence of the compelling reasons, namely,

backwardness, inadequacy of representation and overall administrative efficiency before making

provision for reservation. The State is not bound to make reservation for SC/ST in matter of

promotions. However if they wish to exercise their discretion and make such provision, the State

has to collect quantifiable data showing backwardness of the class and inadequacy of

representation of that class in public employment in addition to compliance of Article 335. It is

made clear that even if the State has compelling reasons, as stated above, the State will have to

see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit

of 50% or obliterate the creamy layer or extend the reservation indefinitely.

ARTICLE [16(4B)]

The enactment of the Constitution (Eighty-first Amendment) Act, 2000, which has added the

following Clause (4B) to Article 16:

(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

AIR 1962 SC 36., holding reservation in promotion permissible under Article 16(4). See also Union of India v. Virpal Singh Chauhan, AIR 1996 SC 448. Later, the majority of the Supreme Court in State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296, held that even if under Article 16(4), the State proposed to provide reservation on the ground of inadequate representation of certain Backward Classes in Services, if it was considered by the appropriate authority that such reservation would adversely affect the efficiency of the administration, then exercise under Article 16(4) would not be permissible. See also Indra Sawhney v. Union of India, AIR 2000 SC 498.57 (2006) 8 SCC 212.


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the vacancies of the year in which they are being filled up for determining the ceiling of fifty per

cent reservation on total number of vacancies of that year.

In Suraj Bhan Meena & Anr. v. State Of Rajasthan,58 applying the width test and identity test,

the Constitution Bench held that firstly it is the width of the power under the impugned

amendments introducing amended Articles 16(4-A) and 16(4-B) that had to be tested.

ARTICLE 16(5)

It 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.

Clause (5) of Article 16 is the third exception to the general rule of equality of opportunity

contained in Article 16(1). Clause (2) prohibits discrimination in the matters of employment

under the State, on the ground of "religion". Clause (5) of Article 16, 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 30.59

EQUAL PAY FOR EQUAL WORK

In Randhir Singh v. Union of India,60 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

58 SLP No. 6385 OF 2010.59 See generally Articles 25 to 28 and Articles 29 and 30.60 AIR 1982 SC 879.


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properly applied to cases of unequal scales of pay based on no classification or irrational

classification.

In State Of West Bengal & Anr. v. West Bengal Minimum Wages,61 the Court observed that

the benefit of higher pay scale can only be claimed by establishing that holders of the subject

post and holders of reference category posts, discharge duties and functions identical with, or

similar to, each other and that the continuation of disparity is irrational and unjust.

61 Civil Appeal No. 3855 of 2007.


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