ARTICLE 16: EQUALITY IN PUBLIC OPPORTUNITY:
ARTICLE 16 IN COMPARISON WITH ARTICLE 14, 15 AND OTHER ARTICLES:
ü Art: 16(1) is a part of Art. 14. It deals with“equality of opportunity” in employment under state.
ü Art. 14 applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens.
What does Art 16 provide?
ü Art 16 (1) : Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
ü Art. 16(2) : no citizen can be discriminated against, or be ineligible for any employment or office under the state, on the grounds only of religion, race, caste, sex, descent, place of birth or residence or any of them.
The Constitution, therefore, provides equal opportunities for women implicitly as they are applicable to all persons irrespective of sex.
What is the meaning of term of office ? Synonymous with the term ‘office’ used in Arts. 102(a) and 191(a) .
‘Office’ = subsisting, permanent, substantive position, having an existence independent of the person who fills it, which is filled in succession by successive holders and which has more or less a public character to which duties are attached #Kanta Kathuria v. Manak Chand Surana.
Whether Art 16 is applied to all stages of services ? YES !
CASE LAW : Gen. Manager, S. Rly. v. Rangachari, Ganga Ram v. Union of India.
HOW ? The expression ‘matters relating to employment’ in Art. 16(1) is not restricted only to the initial stage of appointment
SO ! 16(1) includes all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment or which form part of the terms and conditions of such employment, such as, salary, periodical increments, leave, promotion, fixation of seniority, gratuity, pension, superannuation and even termination of employment.
REASON : The guarantee of Art. 16(1) could become illusory if narrowly construed.
OVER RULED : A 9- member bench in INdra Shawney case : No reservation in promotion.
AMENDMENT : Later by 77th amendment Art: 16 (4 A) : Art 16 applied to all stages of employment.
TWO IMPORTANT LAND MARK CASES:
CASE LAW : C.B. Muthumma v. Union of India : HELD : Rules denying appointment of married woman as IFS officer and rule which required government approval for marriage of woman IFS officers before the age of 45 : was declared invalid.
CASE LAW : Air India v. Nargesh Meerza : HELD : The Regulations stating an air-hostess could not get married before completing four-years of service: declared invalid.
What does Art : 16 (3) say ? Parliament empowered to prescribe a requirement as to residence within a State or Union Territory for eligibility to be appointed with respect to specified classes of appointments or posts.
What is the significance of this provision ? Art. 16(2) which bans discrimination of citizens on the ground of ‘residence’ is qualified by this proviso clause.
Who has the power to impose residential qualification ? Parliament and not to the State Legislatures .
REASON : As the State Legislatures being subjected to greater local pressures might have been tempted to create all kinds of barriers in the matter of public services so power given to Parliment.
What are the instances of exercise of power under Art: 16 by parliament ? Public Employment (Requirement as to Residence) Act, 1957.
What this Act do ? The Act repeals all laws in force prescribing a requirement as to residence within a State or Union Territory except Himachal Pradesh, Manipur, Tripura and Telengana.
CASE LAW : A.V.S. Narasimha Rao v. State of Andhra Pradesh
WHAT HAPPENED ? Part of the Act prescribing a residence qualification for government services in Telengana—a part of the State of Andhra Pradesh : Held invalid.
REASON : Under Art. 16(3), Parliament can impose a residential qualification for services in the whole State, but not in a part of the State.
RESERVATION FOR EMPLOYMENT FOR BACKWARD CLASSES IN INDIA: POSITIVE DISCRIMINATION IN CASE OF EMPLOYMENTS :
What does Art: 16(4) do ? It provides reservation of appointments or posts for backward class of citizens.
WHEN ? In the opinion of the state if such class is not adequately represented in the services under the state.
STATE MEANS ? Denotes both Central and state governments and their instrumentalities. # Triloki Nath v. State of J & K, State determination must be justiciable and may be challenged if it is based on irrelevant considerations.
What is the nature of the power under this Art ? Mohan Kumar Singhania v. Union of India a discretionary power : neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation.
What parameters to be considered while demarcating the specified beneficiary class ? The state government takes the total population of the backward class and their representation in the state services etc.
What are “backward classes U/Art. 16(4) of the constitution? "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.
FORE FATHERS VIEW :), Dr. B.R. Ambedkar: “backward classes” are which nothing else but a collection of certain castes.
- `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 .
In M.R. Balaji v. State of Mysore, it was held that the caste not single test to determine backwardness.
The two tests should be conjunctively applied in determining backward classes:
ü one, they should be comparable to the Schedule Castes and Schedule Tribes in the matter of their backwardness; and,
ü 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.
NOTE : 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.
ART.16 (4) AN EXCEPTION TO ART.16 (1):
The cl.(4) has over ridding effect on cls. (1) and (2) but could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all
ARTICLE 16(4) AND 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”.
CENT PERCENT RESERVATION NOT PERMISSIBLE: The state is not entitled to make a cent percent reservation. That would be violative of Art.16 of the Constitution.
CONDITION : Unless there is plurality of posts in a cadre, the question of reservation will not arise .
REASON : Any-attempt at reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented.
EXTENT OF RESERVATION : THE EXTENT OF RESERVATION SHOULD NOT EXCEED 50% : Indira Sawhney case
It also pointed out that 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.
CONCEPT OF CREAMY LAYER:
Who comes under creamy layer ? Creamy layer = socially advanced members of the backward class # Mandal commission case.
CONCLUSION : The benefit of reservation under Article 16(4) can only be given to a class which remains after the exclusion of the “creamy layer”.
What this article provides ? It says law may prescribe that the incumbent of an office in connection with the affairs of a religious or denominational institution, or a member of the governing body thereof, shall belong to the particular religion or denomination.