ART. 16 Equality of opportunity in matters of public employment

Vaibhav SonuleAsst.Prof, School of Law

Alliance UniversityBangalore

SCOPE

• Equality of opportunity to all citizen in employment under State.

• Discretion of State.• The reservation to class who not adequately

represented in the service of State. • Those who are unequal can not be treated by

identical standard.

Art. 16 (1)

“There shall be equality of opportunity for all citizen in matters relating to employment or appointment to any office under the State.”

• Equality of opportunity to all citizen.• Includes all matters relating to employment.

Equality of Opportunity

Two Concepts 1. Affirmative Action – equalizing result with

various classes2. Non- Discrimination – Level playing

• Not absolute • Reasonable classification is allowed in Art. 16

Art 16 (2)

No citizen shall, on ground 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.

• Scope is restrictive than Art 15• Negative form of Right but assures the effective

enforcement of equality

• Discriminated against – To prevent discrimination not only in

appointment but treatment after appointment .

Unfavorable act

• Descent – hereditary succession Permitted in case of death of employee

• Residence – bar on discrimination on ‘NOT’ residence of State. Discrimination in educational institution permitted Geographical classification permitted based on scientific study

• Place of Birth – Differ from Residence.

• Sex – Prohibit discrimination in equal circumstances but grant special treatment under Art. 15 (3)

Art. 16 (4)

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

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

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

Not provide any Fundamental Right to reservation but discretion to State to providing reservation

provision

• Reservation may be made not only by Statute but also an executive order.

(Indra Sawhney v/s UOI AIR 1993 SC 477)• Positive Discrimination • But to get benefit, social and other relevant

criteria is applicable.

Reservation

• Reservation implies Separate Quota for category.

Vertical Reservation – S.C./S.T/O.B.C. u/A 16 (4)Horizontal Reservation – physically disable 16 (1)

Any Backward Class

• Wider than Art. 15 (4)• Indentified on the basis of caste, occupation,

poverty, Social Backwardness • The classes do not qualify u/A 15 (4) may

qualify u/A 16 (4).

Not adequately represented

• Subjective satisfaction of Govt.• Govt. must consider all relevant circumstances• Decided by reference to numerical (size of

class) and qualitative test

Art. 16 (4) A (77th amnd, 1995)

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

In matters of promotion [with consequential seniority ] (85th Amnd, 2001)

In the service In favour of SC & ST If not adequately represented in service

under the State.

History of Amendment

• To overcome the decision in Indra Sawhney “No reservation in promotion could be made

in Art 16 (4) and is confined to initial appointment only.”

The provision is only a enabling provision

M.R.Balaji v/s State of Mysore AIR 1963 SC 649

S.C. observed The order bad on several grounds as the

classification is merely based on caste.Art 15 (4) does not make classification

between backward and more backward. Economical backwardness is yardstick to

determine social backwardness. Art. 15 (4) is an exception to Art 15 (1)

• The fundamental Right of the rest of society were to be completely ignored.

• For looking after the advancement of Backward Classes, the State would be justified in ignoring altogether advancement of rest of society.

• So maximum limit should not be more than 50%.

T. Devdasan v/s Union of India AIR 1964 SC 179

• Art. 16 (4) is an exception to Art. 16 (1) [ 4: 1] • A reasonable number is one which strikes the

balance between claims of backward class and other citizens.

• Carry forward rule is invalid.Dissenting Opinion “ The idea of equality of opportunity in Art 16 is

to provide special reference to deprived classes of citizen.”

S.V. Balram v/s State of Andhra Pradesh AIR 1972 SC1375

Supreme Court observed The Commission prepared list not only on the

basis of caste but poverty, occupation, caste and educational backwardness.

So it is not violation of Art. 15 (4).

State of Kerala v/s N.M.ThomasAIR 1976 SC 490

• Art. 16 (4) is not exception to Art. 16 (1)• Art 16 being a facet of Doctrine of equality

under Art.14 which permits reasonable classification.

• Criteria laid down by S.C. The basis of classification has to be backwardness Rational nexus to object Administrative efficiency kept in view.

Minority View The principal of classification could not be

extended to confer preferential treatment.

Akhil Bhartiya Shoshit Karmachari Sangh v/s Union of India AIR 1981 SC 298

• The Fundamental Right of Equality justifies classification to SC/ST.

• Art 16 (1) itself permits Reasonable Classification.

• Adequate Representation u/A 16 (4).• There is no fixed limit to reservation for SC &

ST though generally Reservation may not be excess of 50 %. (carry forward rule held valid)

Indra Sawhney v/s Union of India AIR 1993 SC 477

Questions Raised - • Reservation under Articles 16 (1) and 16 (4) of

Constitution of India • Backward Class ?• Adequate representation ?

• Quantum of Reservation • Reservation in Promotion• Carried forward Rule• Creamy layer amongst backward class of

citizens

Art 16 (1) & (4)

• Reservation can be made by Executives also u /A 16 (4)

• Art 16 (4) is not an exception to Art 16 (1) but the classification is inherent in clause (1).

• Reservation also be provided u/ A 16 (1) but it has to be adjusted as per the level of representation.

• All supplementary provisions can be provided u/A 16 (4)

Backward Class

• Classes deserving special treatment.• It has been classified by Constitution itself.• Social Backwardness not solely based on caste

or economics. • Court has left this task to Commission to

define Backward Class.

Adequate Representation• Subjective satisfaction of Govt.

Promotion• Reservation can not be called Anti-Meretian• Art 16 (4) does not permit reservation in

Promotion• Confined to initial appointments only.

Quantum of Reservation

• Should not exceed 50% with exception on account of extraordinary situation.

• Carry forward rule considered as valid but should not exceed 50 %.

• The sub classification is invalid (poor and more poor )

• 10 % reservation in favour of other economically backward class people not covered by existing scheme is struck down.

Creamy Layer

• Socially advancement member of Backward class should be excluded

• Social advancement also includes Economic Advancement

• Excluded from the benefit of Reservation. • Court directed Govt to specify basis of Creamy

Layer on the basis of income and extent of holding.

Dissenting View

JUSTICE SAWANT

• Art 16 (4) is not exhaustive of reservations that can be made for classes other than backward classes under Article 16(1).

• Backward classes other than the Scheduled Castes and Scheduled Tribes are entitled to the benefit of the reservations under Article 16(4).

• The expression "weaker sections" of the people does not necessarily refer to a group or a class. This weakness may be on account of factors other than past social and educational backwardness.

• The economic backwardness of the backward classes under Article 16(4) has to be on account of their social and educational backwardness.

• Adequacy of representation, serves as a guide for the percentage of reservations.

• If the percentage of reservations is disproportionate or unreasonable , it denies the equality of opportunity to the unreserved classes and violates Article 16(1).

JUSTICE THOMAS• Such classification must stay strictly within the

remedial actions. • Such programme must be consistent with the

fundamental objective of equality.• Any such action by the State must necessarily be

subjected to periodic administrative review by specially constituted authorities so as to guarantee that such policies and actions are applied correctly and strictly to permitted constitutional ends.

• What is sought to be identified is not only caste but social and educational backwardness, generally manifested by disabilities such as illiteracy, poverty, incurable diseases, etc.

• The kind of backwardness which is required to attract the special provisions protecting the backward classes of citizens under Article 16 in respect of public employment is identical to the social and educational backwardness mentioned in Article 15(4).

• Efficiency of administration is im

• the focus in any such action must be on the victims and not on the wrong doers

• Any unfair and undue deprivation of any class of people is constitutionally impermissible.