Article 16 of Indian constitution

Article 16 of Indian constitution

 Article 16 of Indian Constitution talks about Equality of opportunity in matters of public employment.

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 or, 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 favor of any backward class of citizens which, in the opinion of the State, is 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 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

Article 16(1) of Indian constitution

Article 16 of the Indian ConstitutionClause (1) lays down the general rule that there shall be equal opportunity for citizens in matters relating to ”employment” or ”appointment to any office” under the State. It gives the right only to equal opportunity, i.e. the right to be considered for employment or appointment. It does not give the right to be employed or appointed to any office under the State. The rule applies only in respect of employment or offices which are held under the State, i.e. in respect of persons holding office as subordinate to the State. What is guaranteed is the equality of opportunity. The clause accordingly, does not prevent the State from laying down the requisite qualifications for recruitment for government services, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like all other employers, the government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. long as an applicant, along with others, has been given his chance, it cannot be said that he did not have an equal opportunity along with others, who may have been selected in preference to him. While Article 16 clause (1) does not preclude an administrative authority from making a selection from numerous candidates offering themselves for employment, the selection test must not be arbitrary. If the selection test is not based upon some reasonable principle that has a nexus with the efficient performance of the duties and obligations of the particular office, the rule of equal opportunity for employment under the State would be violated. 

The qualifications posited may, besides mental excellence, include physical fitness, sense of discipline, moral integrity and loyalty to the State. Technical qualifications and standards may be prescribed where they are necessary”

The expression ”matters relating to employment or appointment” must include all matters in relation to employment both prior and subsequent to the employment which is incidental to the employment and form part of the terms and conditions of such employment. Thus, the guarantee in clause (1) will cover: 1) initial appointments; 2) promotions; 3) termination of employment; and 4) matters relating to salary, periodical increments, leave, gratuity, pension, age of superannuation, etc. Logically and going by numerous precedents determination of seniority must also fall within it. But a three-judge Bench of the court has held that ”Seniority is not a fundamental right”. The principle of equal pay for equal work is also covered by equality of opportunity in Article 16(1). The same fundamental principle of equality of opportunity should apply in all these matters between persons who are either seeking the same employment or have obtained the same employment. ”Appointment” in clause (1) will include termination or removal from service. Arbitrary invocation of enforcement of a service condition terminating the service of a temporary employee may itself constitute a denial of equal protection and offend the equality clause in Articles 14 and 16(1).

It is not obligatory to make recruitment rules before a service is constituted or a post is created or filled up. In the absence of rules, qualifications for a post can be laid down in the executive order creating the service or post and filling up according to those qualifications.” But there is no rule of equality between members of separate and independent classes of service. Thus, the road-side station masters and guards belong to two separate and distinct classes of service between whom there is no scope for equality or inequality of opportunity in matters of promotion. Article 16(1), accordingly, is not infringed by rules enabling guards to be promoted faster than road-side station masters to the posts of station masters. Likewise, Article 16(1) has no application to persons occupying different grades in the same service. Accordingly, if Income Tax Officers of Class I are eligible for appointment as Assistant Commissioners, but Income Tax Officers of Class II are not, there can be no question of denial of equality of opportunity. Similarly, irregular, ad-hoc or temporary appointees cannot claim equality with regular and permanent appointees. So also classification between deputationists and departmental candidates is justified. But if different standards of promotion are laid down in relation to the same class of Income Tax Officers, Article 16 is violated?” Government action has been held invalid where the seniority of the person was disregarded. While promoting persons of one grade or class to the higher rade, no discrimination can be made between those who came to the existing grade through promotion and those who came through direct recruitment. The right to be considered for promotion is recognized as a fundamental right under this article. There is nothing wrong with providing different grades for persons who have higher educational qualifications. The distinction may be drawn between the degree, diploma and certificate holders. The State may also decide not to observe such a distribution. There is no denial of equality if the service rules permit the premature retirement of government servants.” So also equality of opportunity in matters of employment does not prohibit the prescription of compulsory retirement? It is one thing to lay down appropriate qualifications and requisite experience for a particular job, but complete neglect without a valid reason, of the requisite experience, on the sole ground of drawing a particular amount of salary on a particular date cannot be countenanced.

Article 16 (2)

“Article 16 of Indian Constitution” -Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated against one another 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 Article 16 has to be weighed and judged in the light of the general principles laid down in clause (1). The prohibited grounds of discrimination are religion, race, caste, sex, descent, place of birth, residence, or any of them. The words, ”any employment or office under the State” make it clear that Article 16(2) also applies only to public employment. There is no constitutional prohibition against private persons or bodies employing people on grounds prohibited in Article 16(2)

ALSO READ- ARTICLE 1 OF INDIAN CONSTITUTION

In Gazula Dasaratha Rama Rao v. State of AR”, the Supreme Court invalidated Section 6(1), Madras Hereditary Village Offices Act, 1895 which had required the Collector to select persons from among the last holders of offices because it amounted to discrimination on the ground of descent. The office of the hereditary village munsif is an office under the State because the appointment is made by the Collector, emoluments are granted by the State, and the Collector has the power to remove, suspend, or dismiss him. In B. Venkataramana v. the State of Madras”, reservation of posts in favor of Hindus, Muslims, and Christians was held to be violative of Article 16(2). Section 3, Andhra Pradesh Employment (Requirement as to Residence) Act, 1957 gave the power to make rules in respect of certain classes of employment in certain areas. The rules prescribed the requirement of residence for appointment to certain posts within the Telangana area of the State. In A.V.S. Narasimha Rao v. State of AP. , the petitioners, who were non-domiciled persons appointed to the posts reserved for domiciles of Telangana and were by an order relieved from their posts and employed in other regions of the State, questioned the validity of the Act. The Supreme Court held that Section 3 of the Act insofar as it related to Telangana and the rules made the reunder were ultra vires the Constitution. A circular of the State of Rajasthan assigning grace marks for the employment of primary school teachers on the ground of residence in the district and rural area was also invalidated. A district-wise preparation of list of selected teachers in Uttar Pradesh was also invalidated by the court. The difference in the pay scales and promotional avenues between male and female employees is also prohibited by this provision. Provision for appointment of sons, daughters or widow of a deceased employee on compassionate grounds is not violative of Article 16(2) but its extension to near relatives is invalid under this provision. In view of the history of Sikkim and its special annexation to the Union of India, a provision for the appointment of the locals to services in that state has not been found inconsistent with Article 16(2).“ Sexual harassment at the workplace has also been held as gender discrimination and is prohibited by law. As we have noted above under Article 15(3), special provisions including reservations for women in employment have been upheld by the court. Sex in this clause also includes transgenders and, therefore, they can also not be discriminated in matters of State employment.

Article 16(3)

Under this clause, Parliament is competent to regulate the extent to which it would be permissible for a State to depart from the law laid down in clause (2). It is Parliament alone which can prescribe such conditions, and that too in regard to State and not the Union appointments. In exercise of the power conferred by this clause, Parliament in 1957 passed the Public Employment (Requirement as to Residence) Act. The Act repealed all the laws in force prescribing any requirement as to residence within a State or Union territory for any public employment in that State or Union territory. Whatever exceptions the Act initially made hm also expired.

ALSO, READ- SECTION 125 OF CRPC

Article 16(4) of the Indian constitution

This clause expressly provides for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The power conferred on the State can only be exercised in favour of a backward class and, therefore, whether a particular class of citizens is backward, is an objective factor to be determined by the State. While the State has necessarily to ascertain whether a particular class of citizens is backward or not, having regard to acceptable criteria, it does not have the final say in the matter. The state’s determination is justiciable and may be challenged if it is based on irrelevant considerations. These matters have been discussed in detail under Article 15(4)

Article 16(4a) of the Indian constitution

AS the Mandal Commission case laid down a 50 percent upper limit. for reserva{ions in a year under clause (4) and upheld 49.5 percent reservations, no scope Was left to fill in the backlog vacancies and to hold Special recruitment drives. To overcome this handicap, the Constitution (81st Amendment) Act, 2000 introduced an exception to the 50 percent limit for the purpose of filling the backlog vacancies. Unlike clause (4-A) clause (4-B) is not confined to the SCs and STs. Although no specific case has yet been decided by the court under this clause, in Nagaraj” it suggested that to ensure the efficiency of administration required by Article 335 “in each case, the appropriate government will now have to introduce the time cap depending upon the fact situation” to fill in the backlog vacancies. It is interesting to note that Article 335 which applies only in the case of the SCs and STs has been extended to clause (4-B) which is not confined to those classes. 

In Nagaraj, a five-judge Bench 0f the court unanimously upheld the validity of the above amendments introducing clauses (4-A) and (4-B) in Article 16. 

Impact of reservation.-An authentic countrywide data of the impact of reservation in all the services under the Union and the States is not yet available but information sought by The Indian Express from the Union Government shows that in 71 0f 91 departments of which the information was supplied, the SCs and STs occupy 17.6 per cent and 7.7 per cent jobs respectively as against their reserved quota of 15 per cent and 7.5 per cent respectively, while the SEBCs and persons with disability, for whom law reserves 27 and 3 percent jobs respectively occupy only 17.7 percent and 0.3 percent jobs respectively. The reason for this discrepancy could be the late provision for the reservations in the latter categories in 1994 and 2004 respectively while for the SCs and STs provision was made in early 19505. The percentage of SCs and STs is much higher in the lowest services and gets successively reduced in the higher service‘ Let us hope that in near future the constitutional goal of adequate representation of reserved categories in State services will be achieved and these provisions will become matters of the past. 

THIS ARTICLE HAS BEEN WRITTEN WITH THE HELP OF V.N SHUKLA OF INDIAN CONSTITUTION

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