Article 309 of the Constitution of India allows the Government to make service conditions. However, this is subject to Article 14 and Article 16. Article 16 of the Constitution of India is, briefly put, about equality of opportunity in public employment, i.e., under the office of the State, for citizens. If Article 14 is the genus, Article 16 would be the species – article 16 is merely an extension of Article 14, where both rules against arbitrariness and the doctrine of reasonable classification apply to both (DTC v. Mazdoor Congress, AIR 1991 SC 101).
However, there are marked differences between Article 14, 15 and Article 16. A couple of instances:
- While Article 14 applies to “any person”, Article 16 only applies to “citizens.”
- Article 16 has additional grounds for declaring a law ultra vires: descent, and place of residence
- While article 14 and Article 15 apply to all state activities, Article 16 only apply to public employment and equality of opportunity
UNDERSTANDING THE CONCEPT OF EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT
The provision is reproduced as hereunder:
(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 regards to 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.
(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 of any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which, in the opinion of the State are not adequately represented in the services under the State
(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 religions denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Features of Article 16
- Article 16 only applies to citizens
- The first clauses are interpreted widely, and beneficially – the general protection and the clause which lays down the grounds for discrimination. However, the other clauses are interpreted strictly (General Manager v. Rangachari, AIR 1962 SC 36, 41).
- If discrimination is only on the grounds mentioned in Article 16(2), then action shall proceed under that, else for any other ground action shall proceed under Article 16(1).
- It only pertains to appointment or employment under the “office of the State” (Public employment): Here, the term “State” can mean local authorities, States and Union territories. Also, the term “employment or appointment” can mean anything from the salary, increments, revision of pay, promotion, gratuity, leave, pension and age of superannuation, tenure, duration, enrolments, duties, and obligations (See Sukhnandan v. the State of Bihar, AIR 1967 Pat 617). It also extends to work of temporary or permanent nature.
- Improper appointments/ ad hoc appointments, however, shall not be regularised as they’re only temporary appointments dehors the rule, and a right to regularisation does not arise as a consequence (J&K Public Service Comm. V. Dr Narinder Mohan, (1994) 2 SCC 630, 637). However, such an appointee can freshly apply for the same post to be considered on merits.
- Article 16(3)-(5) have been given the status of permissible cases of classification, rather than exceptions in Indra Sawhney v. Union of India (AIR 1993 SC 477), also known as the Mandal Commission case which is of special import in the context of reservations.
- Reservation: This is the most contented matter under Article 16 – Article 16(4), (4A). The controversies arose, as pointed out in Rajendra v. Union of India (AIR 1968 SC 567), because the quantum of reservation allowed has not been specified. In Balaji v. State of Mysore (AIR 1963 SC 649) the govt. had issued a govt. The order which reserved 68% of the seats in educational institutions for the Scheduled Caste (SC), Tribes (ST) and Other Backwards Classes (OBC). The court struck the provision down as “excessive reservation.” A landmark decision. The jurisprudence did not end there – in T. Devadasan v. Union of India (AIR 1964 SC 179) the provisions had a “carry over” clause which resulted in a total 45% being allotted, although it was held valid the court observed that the Govt. must keep within the legitimate expectation of the people, and should not ignore the Fundamental Rights of the rest of the citizens. It was also held decisively that the quota of reserved seats would depend on the circumstances of the particular case. In-State of Kerala v. N.M Thomas (AIR 1976 SC 490), the court laid down that the basis for a reservation shall be backwardness, with a rational nexus with the object sought to be achieved and overall consideration of administrative efficiency consistent with other safeguards such as under article 16, 46 and 335. These cases have been largely followed across subsequent cases of the matter.
Article 16 assumes extreme importance in a social context. It stretches the application of article 14 into the sphere of public employment explicitly and ensures fairness in another wing of State’s functions. Due to its role, it becomes important to understand the nuances of the same as hereinbefore mentioned.
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