Law and You > Constitutional Law > Equality of opportunity in matters of public employment (Article 16)

Article 16 talks about the equality of opportunity in matters of public employment. The term “equal opportunities” is very subjective in nature and various jurists have given different interpretations to it. However, in all the definitions, it is clear that this term not only talks about removing discrimination but also put an obligation on the state to create opportunities for the weaker or the backward section of the society. In this article we shall discuss the equality of opportunities in the area of public employment under the Constitution of India.

Fundamental Rights:

Part III of the Constitution is said to contain the Bill of Rights available to the people of India. This chapter of the Constitution has been described as `Magna Carta’ of India. The inclusion of a Chapter of Fundamental Rights (Chapter III) in the Constitution of India is in accordance with the trend of modern democratic thoughts. Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their government.

Fundamental Rights mentioned under Article 14-35 of the Constitution of India can be categorized as follows: 

• Right to Equality (Article 14-18): Right to equality including equality before the law, the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.
• Right to Freedom (Article 19-22):  Right to freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or Occupation.   Articles 20 and 21 cannot be suspended during the National Emergency.   It also recognized under the United Nations-Universal Declaration of Human Rights, and the International Covenant for Civil and Political Rights.
• Right against Exploitation (Article 23-24):  Right against exploitation prohibiting all forms of forced labour, child labour and traffic in human beings.
• Right to Freedom of Religion (Article 25-28):  Right to freedom of conscience and free profession, practise, and propagation of religion.
• Cultural and Educational Rights (Article 29-30):  Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
• Right to Constitutional Remedies (Article 32-35):  Right to Constitutional remedies for enforcement of Fundamental Rights.

Right to Equality:

Right to equality is very important in a society like ours. Right to Equality means that all citizens enjoy equal privileges and opportunities. The purpose of this right is to establish the rule of law where all the citizens should be treated equal before the law. It has five provisions (Articles 14-18) to provide for equality before law or for the equal protection of law to all the persons in India and also to prohibit discrimination on the grounds of religion, race, caste, sex or place of birth. Right to Equality includes five types of equalities

• Equality before law (Article 14)
• Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15)
• Equality of opportunities in matters of public employment (Article 16)
• Abolition of Untouchability (Article 17)
• Abolition of titles (Article 18)

Article 16:

Equality of Opportunity in Matters of Public Employment:

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 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.
   (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, 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.
5. (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 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
6. 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.

Important Features of Article 16:

1. Article 16 guarantees equality of opportunity in matters relating to employment or appointment to public services to all citizens.
2. It mandates the State to provide every citizen with equal opportunity in the matters of employment or appointment to any office under it. However, this does not prevent the State from laying down the requisite qualifications for recruitment in government services.
3. It also prohibits discrimination by the State in relation to employment or appointment to any office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. 
4. Clause (4) of Article 16 allows the State to reserve seats in favour of backward classes of citizens which according to State are not adequately represented in the services under the State.
5. Article 16 is only an incident to the application of the equality concept envisaged in Article 14.
6. It is to be noted that under Article 16 the guarantee against discrimination is limited to `employment’ and `Appointment’ under the State. Article 15, however, is more general and deals with all cases of discrimination, which do not fall under Article 16.

Article 14 and Article 16(1) are closely inter-connected with each other. Article 16(1) takes its roots from Article 14. Article 16(1) particularizes the generality of Article 14 and identifies, in a constitutional sense, “equality of opportunity” in matters of employment in state. The main difference between these two articles is that, Article 14 applies to all person but Article 16(1) applies only to citizens. We can say that Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State.

Art. 16 deals with a very limited subject, that is public employment. The Scope of Article 15(1) is much wider as it covers the entire range of state activities.

In Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564 case, the Supreme Court held that Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters does not mention descent as one of the prohibited grounds of discrimination as Article 16 does.

Article 16(1) states that there shall be equality of opportunities for all the citizens of the country in the matter of public employment or public services. It is important to note that this provision only apply to the offices of the state. This Provision also empowers the state to lay down qualification criteria for recruitment in order to ensure that the best and suitable candidate shall be appointed for the government posts. Further, the state can also bring out any suitable condition of employment with an objective to ensure discipline.

In Reserve Bank of India vs. Gopinath Sharma, 17 July, 2006 case, the Court held that adherence to the rule of equality in public employment is a being feature of our constitution and the rule of law is its core, the court cannot disable itself from making an order in consistent with article 14 and 16 of the constitution.

The principle of equal pay for equal work is enshrined under Article 16(1) as it puts an obligation on the state to ensure equality in all matters in relation to employment.

In Mackinnon Mackenzie & Co. Ltd v. Audrey D’Costa, AIR 1987 SC 1281 case, there was a difference in remuneration for the male and the female stenographer. The court held that this practice is against the right to equality and it violates Article 16(1) of the constitution.

In Randhir Singh v. Union of India, AIR 1982 SC 879, D.S. Nakara’s case AIR 1983 SC 130 and P.K. Ramchandra Iyer’s case AIR 1984 SC 541 cases, it has been held that equal pay for equal work, although not expressly declared to be a fundamental right is clearly a constitutional goal under Articles 14, 16 and 39(c) of the Constitution. It can be enforced by the courts in cases of unequal scales of pay based on irrational classification. This principle has been followed in a number of cases. These cases are commonly popularly known as Equal Pay for Equal Work Cases.

The qualifications criteria may entail minimum educational qualification, physical fitness, mental stability, moral integrity and sense of loyalty toward the state, etc. The term “matters relating to employment” involves all the matters before and after the period of employment. It basically allows the state to bring out such terms and conditions that may be applicable even after the period of employment. This clause is applicable to the initial employment, promotion and even to the termination of the period of employment. Further, all the matters in relation to salary, leave, provident fund, gratuity, etc are also governed under this section.

In Markandeya v. State of Andhra Pradesh, AIR 1989 SC 1308 case, there was a difference in the pay scale for a graduate and a non-graduate supervisor. However, the work performed by both people was the same. It was challenged before the court on grounds of violating the right to equality. The court held that Article 16(1) is not absolute and the state is empowered to make reasonable classification on the ground of some rational or valid difference between two persons. In this case, the difference was based on the qualification between both the persons, thus, the court held that it is valid.

In Subhash Chand Jain v. Delhi Electric Supply Undertaking, AIR 1981 SC 75, case, the Court held that establishing qualifications for a particular post can be a rational differentia and therefore, not violative of Article 16.

In C.B. Muthamma v. Union of India, AIR 1979 SC 1868 case, there was a provision in service rules that a female employee is required to obtain the permission of the Government in writing before her marriage is solemnized. The petitioner was denied promotion to Grade I of the Indian Foreign Service only on this ground that she had not taken such permission. The Court held that denying her the right to be promoted on the ground that the candidate was married woman was discriminatory against woman and hence unconstitutional. However, the Court made it clear that it does not mean that the men and women are equal in all occupations and in all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of social sectors of the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern.

Article 16(2) lays down specific grounds on the basis of which citizens are not to be discriminated against each other in respect of any appointment or office under the State. The scope of clause (1) of Article 16 is wider than the scope of clause (2), because discrimination on grounds other than those mentioned in clause (2) of the Article 16 has to be weighed and judged in the light of the general principles laid down in clause (1).

In Jankiraman v. State of Andhra Pradesh, AIR 1959 AP 185 case, a temporary government servant was removed by an order on the ground that he was not born in Andhra Pradesh. The Court held that such order is in violation of Article 16(2). Court also opined that Article 16(2) does not make any distinction between temporary and permanent posts.

In Pradip Jain v. Union of India, AIR 1984 SC 1420 case, the Court held that residence and place of birth are two district concept. Article 16(2) prohibits discrimination on the basis of place of birth and does not on the ground of residence.

Under article 16(3) Parliament May make a law to prescribe a requirement as to residence within a state or union territory for eligibility to be appointed with respect to a specified classes of appointments or post. In other words article 16(2) which bans discrimination of citizens on the ground of Residence, only in respect of any office or employment under the state, can be qualified as regards ‘residence’ and ‘residential qualification’ imposed on the right of appointment in the state for specified appointments.

Article 16(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 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 A.V.S Narasimha Rao vs. state of Andhra Pradesh, 1970 AIR 422 case, the Supreme Court declared that part of the Act unconstitutional which prescribed residence as qualification for government services in one part of Andhra Pradesh state. The court held that parliament can impose the residential qualification for services in the whole state, but not in part of the state.

In Pandurangarao v. Andhra Pradesh Service Commission, AIR 1963
SC 268, case, the validity of a rule prescribing that an applicant for the selection of District Munsif must at that time be practicing as an advocate in the Andhra Pradesh Court, was challenged under Article 16. The Court held that the rule is unconstitutional as there was no reasonable nexus between the qualification and the alleged object of an applicant possessing a knowledge of the local laws which could be acquired by any lawyer practicing in any court.

Article 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 the State, is not adequately represented in the service under the State.

In Mohan Kumar Singhania v. Union of India, 1991 SCR Supl. (1) 46 case, the supreme court held that article 16 (4) is an enabling provision conferring a discretionary power under state for making any provision observation of a appointments or posts in favour of any backward class of the citizen which in the opinion of the state, is not adequately represented in the service of the state. This clause neither imposes any constitutional duty nor confers any fundamental right on anyone for claiming reservation.

In K.C Vasanth Kumar vs State of Karnataka, AIR 1985 SC 1495 case, the supreme court laid down to test to determine backward classes; first they should be comparable to the scheduled caste and Scheduled Tribes in the matter of their backwardness; and, secondly 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.

In N. M. Thomas v State of Kerala Article AIR 1976 SC 490 case, the Supreme Court held that the preferential treatment of under-represented backward classes so far as such treatment was reasonable and had a rational nexus with the object in view was valid.

In Indra Sawhney v. Union of India, case, the issues were as follows:

• Whether caste on its own constitutes a different class and whether economic criteria could by itself be the determinant of a class.
• Whether Article 16(4) was an exception to Article 16(1) and is exhaustive in itself of the rights of reservation.
• Does Article 16(4) allow classification of ‘Backward Classes’ into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations.

The Apex Court put forward following rules:

• Backward classes under Article 16(4) cannot be identified on the basis of economic criteria but the caste system also needs to be considered.
• Article 16(4) is not an exception to clause 1 but an instance of classification as envisaged by clause 1.
• Backward classes in article 16(4) were different from the socially and educationally backward mentioned in Article 15(4).
• The concept of a creamy layer was laid down and it was directed that such a creamy layer be excluded while identifying backward classes.
• Article 16(4) does allow the classification of backward classes into backward and more backward.
• Reservation shall not exceed 50 percent, moreover, reservation in promotions shall not be allowed.
• Any new disputes regarding criteria were to be raised in the Supreme Court only.

Conclusion

Article 16 of the constitution guarantees every citizen the right to equality in public employment. This states that there shall be no discrimination on the basis of caste, sex, gender etc. However, it also empowered the state to take affirmative actions in the form of the reservation to ensure the adequate representation of backward categories of society. Further, Article 16(4) empowered the government to make reservations with a maximum limit of 50%. The legislature has also made provision for the reservation in promotion and reservation for the economically backward class of the society.

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