The equality of opportunity in the field of public employment is discussed in this article. Equal opportunity is a very individualized concept, and many jurists have assigned it varying interpretations. However, it is evident from all of the definitions that this term refers to more than just eliminating discrimination; it also places responsibility on the state to provide chances for the less advantaged or backward members of society.

Through some affirmative actions, the state is given the authority to create chances. To achieve social fairness, affirmative action is a tool. In this action, the state raises the status of a specific minority or backward group by giving them a quota or other incentives. Additionally known as positive discrimination.

It is important to note that Article 16 only guarantees equality in the matter of state services. As per this Article, if a person possesses the prescribed qualification for a post, then he should get it without any discrimination.

Ingredients of Articles 16

There are various elements of Articles 16 which are as follows –

Article 16(1)

Article 16 stipulates that all citizens of the country must have equal access to jobs and other public services. It’s crucial to keep in mind that only services covered under the concept of “state” are mentioned in this paragraph. In other words, it will only be applicable to state offices. In order to ensure that only the most competent candidates are chosen for government employment, this article also grants the state the power to set recruiting standards. Additionally, the state may impose any pertinent job conditions with the goal of guaranteeing discipline.

Equal Pay for Equal Work

As Article 16(1) requires the state to ensure equality in all employment-related concerns, it upholds the idea of equal compensation for equal effort. First mention of the idea was made in Mackinnon Mackenzie’s (1987) 2 SCC 469. The pay for the stenographers in that instance was different for the male and female. The court determined that this conduct breaches both Article 16(1) of the constitution and the right to equality.

Article 16(2)

This clause of Article 16 put an obligation on the state to ensure that there shall be no discrimination between two individuals or classes on the basis of their caste, religion, sex, birth, colour, etc. in the matter of public employment. This section is also applicable only to the offices falling under the ambit of state offices.

For Illustration – If State X issued a notification of 10,000 government jobs in the railway sector with a condition that only the male candidates are eligible to apply as the work involves great physical work. This condition will be violative of Article 16(2) of the constitution and this notification will be struck off.

Article 16 (3)

This Article empowers the union parliament and the state legislature to make any law in the matter of public employment for a Particular class in their respective jurisdictions. In other words, they can make any law for an office falling under the state, local or in the union territory.

However, while making laws, the states need to abide by the provision of the Constitution and particularly Article 16. The state needs to ensure that there shall be no discrimination and if it wants to give reservation then it shall be based on some reasonable differentia. Further, the quantum of the reservation shall not exceed 50% in any case.

Article 16 (4)

This clause is the heart of the entire Article. This provision states that the state can make a provision of reservation for backward castes if they are not adequately represented in the public services. The main criteria behind granting the reservation are the backwardness of a particular class or a caste. It can be determined through social, educational and economic factors.

Article 16(4A)

This Article allows the state to make reservations in the matter of promotion.

In simple words, this article states that if the state feels that the scheduled Classes or the scheduled tribes are not adequately represented, then it can make provision of reservation in their promotion on the basis of seniority. Prior to some decades, there was a minimal representation of the people hailing from the SC and ST category in the public employment. Further, if they get appointed then they hardly get promoted. So, in order to remove that backlog, the centre promulgated the 77th and 81st Constitutional amendment.

However, In the judgement of Indira Sawhney vs Union of India,  the Supreme court held that Reservation is restricted only to initial appointments and not in the matter of promotion. So, in order to nullify the effect of the judgement, this section 16(4A) was incorporated through the 85th Constitutional amendment in 1995 that provides reservation in promotion.

Article 14(4B)

This article was incorporated through the 81st constitutional amendment. Through this amendment, the legislature put a step ahead in the legality of the carry-forward rule. This section states that the unfilled vacancy can be carried forward to the next year. The important point to notify is that these carried forward vacancies will be treated as a different class of vacancy and they will have no bearing on the reservation ceiling of 50 per cent. In other words, these vacancies will not be taken into consideration while computing the totality of the 50% reservation limit. The validity of this clause was upheld in the landmark case of M.Nagaraj Vs. Union of India AIR 2007 SC 71

Article 16(5)

This clause is the non-obstante provision that overrides all other provisions enshrined under Article 16 of the constitution. This provision states that no law will affect the appointment in an office that is connected with some religious or denominational institution. It is empowered to appoint any person which is professing that particular religion or is related to that religious denomination.

Article 16(6) of the Indian Constitution

The union parliament through the 103rd constitutional amendment incorporated Article 16(6) into the constitution. This section allows a reservation of a maximum of 10% for the economically backward class or economically weaker section in public employment.

An NGO named Youth for Equality challenged this provision on the grounds of violating the 50% reservation rule as given in the Indira Sawhney case. The court refused to put a stay on this reservation and held that this reservation will be in addition to the existing quantum of 50% reservation and the additional post will be created for it. Thus, it doesn’t violate the same.

27% Reservation to the Other backward caste (OBC)

The reservation to the OBC has also been a top topic since the emergence of the concept of reservation. Other Backward Class (OBC) is a  term used by the Government to classify such castes that are educationally and socially backward. They are in addition to the  Scheduled Castes and Scheduled Tribes (SCs and STs).

Object :

The Article guarantees equality of opportunity when it comes to public employment. The first two clauses of the Article elucidate the fact that no citizens of India shall face discrimination in respect of employment. These two clauses lay the foundation for equal employment opportunity and eliminate compartmentalization in the name of religion, race, caste, sex, place of birth, or any other.

As one of the important constitutional provisions for deprived sections, Article 16 gives Parliament the power to make any law prescribing the requirements “for a class or classes of employment or appointment to an office under the Central Government or any local authority.” Clause 4 of the Article acts as a guideline for the government for making any provision for the reservation of appointments in favour of any backward class of citizens who are “not adequately represented in the services under the State”.

CONSTITUTIONAL AMENDMENTS:

 The 77th and 81st amendments are considered as technical amendments to protect reservation to SC/ST employees in promotions and in filling backlog of vacancies.”

It was through the 85th amendment of the Constitution that Article 16 (4A) was inserted and amended to give state the power “to provide quota in promotions with consequential seniority.” The clause 4A was inserted after the Supreme Court observed that the reservation of appointments/posts under Article 16(4) is restricted to initial appointment and it cannot extend to reservation in the matter of promotion.

While upholding the insertion of clause 4A, the Supreme Court imposed a condition – every time a government wants to exercise its power under Article 16(4A), “it must take up a specific exercise to demonstrate that the SCs/STs were not adequately represented.”

As the Supreme Court verdict in M. Nagaraj v. Union of India AIR 2007 SC 71 made it compulsory for the government to demonstrate the backwardness of SC/ST beneficiaries every time reservations were provided for promotion, it took another stand, which was heavily criticized for lacking constitutional merit. In its judgment, the apex court had observed that individuals “in the ‘creamy layer’ of OBCs” don’t have the right to be the beneficiaries of the reservation policy. However, the court held that no such exclusion would be applicable for SCs/STs.

The 117th Constitution Amendment Bill was passed to clarify that all SCs/STs are deemed to be backward.

CASE LAWS:

Randhir Singh Vs Union of India & Ors AIR 1982 SC 879 

The Supreme Court observed that although the principle of ‘equal pay for equal work’ did not find an explicit place in the fundamental rights, it certainly constitutes a constitutional goal, therefore, it is capable of being enforced through constitutional remedies under Article 32 of the Constitution.

Thammu Panduranga Rao & Anr. Vs State of Andhra Pradesh (1975) 4 SCC 709 It is not open to the Government to choose a candidate for appointment as a District Judge from the Bar unless and until the High Court recommends this person for appointment. Suggest as a rut for employment, says the phrase “recommend.” The Government was not obligated to adopt all of the High Court’s recommendations, but it might explain to the High Court why it did not accept specific suggestions. If the High Court agreed with the arguments in a specific case, the recommendation in that case was withdrawn, and there was no chance of him being appointed. But it was clearly improper and inept of the government to write to the High Court and request that it produce a list of those it thought had a credible claim to the position.

‘The High Court’s reply was by no means a recommendation by the High Court that all of the candidates interviewed had reasonable claims or, in other words, that the High Court had no further remarks to offer.

K.C. Vasanth Kumar Vs State of Karnataka AIR 1985 S.C. 1495

The Supreme Court stated in this case that reservations in favour of backward classes must be based on the mean test. It has also been suggested that the reservation policy be reassessed every five years or so, and if a class has progressed to the point where it no longer requires reservations. The name of this backward class should be removed from the list.

Conclusion

Every citizen has a constitutional right to equality in public employment, as stated in Article 16. According to this, there must not be any discrimination on the basis of caste, sex, gender, or other factors. However, it also gave the government the authority to implement positive measures, such as reservations, to guarantee that socially disadvantaged groups were fairly represented.

Additionally, Article 16(4) gave the government the authority to make reservations up to a maximum of 50%. The legislature has also included provisions for promoting and reserving positions for members of the social class who are less affluent economically.