Article 16: Equality of opportunity in matters of public employment. Fundamental Rights – Part III of the Constitution

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.

 (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.

(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.

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten percent of the posts in each category.

• There are three exceptions to this general rule of equality of opportunity in public employment:

1. Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority
2. The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
3. A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

Mandal Commission and Aftermath

• It submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes. They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs). The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs and OBCs) amounts to 50% in 1990 that the V P Singh Government declared reservation of 27% government jobs for the OBCs.
• In 1991, the Narasimha Rao Government introduced two changes: (a) preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and (b) reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not covered by any existing schemes of reservation.
• In the famous Mandal case (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions.
• In order to nullify the ruling with regard to reservation in promotions, the 77th Amendment Act was enacted in 1995. It added a new provision in Article 16 that empowers the State to provide for reservation in promotions of any services under the State in favour of the SCs and STs that are not adequately represented in the state services.
• Again, the 85^th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.
• The ruling with regard to backlog vacancies was nullified by the 81^st Amendment Act of 2000. It added another new provision in Article 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. Such classes of vacancies are not to be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% reservation on total number of vacancies of that year. In brief, it ends the 50% ceiling on reservation in backlog vacancies.
• The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far exceeding the 50 per cent ceiling.
• The Constitutional (103rd Amendment) Act got the assent of President of India on 13th January, 2018. It provides reservation of jobs in central government jobs as well as government educational institutions. It is also applicable on admissions to private higher educational institutions. It applies to citizens belonging to the economically weaker sections from the upper castes. This reservation is “in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category”

• In case Indira Sahani versus Union of India, 16th November 1992, popularly known as Mandal Commission.
• Reservation cannot be given only on economic parameters.
• 16 (4) is not an exception,  it is instance of classification on the basis of intelligible differentia having relationship with its object.
• 16 (4) is different from 15 (4) because 15(4) is qualified  while 16 (4) is general.
• Giving reservation to the backward castes, creamy layer must be segregated. Also reservation shall not be given more than 50% except for exceptional circumstances.
• Reservation is one time event that is no reservation shall be given in promotion.
• Reservation can be given by executive order.
• Disputes on the basis of reservation can only be heard in Supreme Court.
• Parliament 77th amendment 1995 added 16 (4A) in the constitution providing reservation in promotion.

• In Union of India vs Veerpal Singh Chauhan, 1995, Judiciary interpreted that for giving promotion  to SCs and STs  in seniority,  the seniority of general Candidate should not be affected.
• Subsequently in Nagaraj vs Union of India, 2006 Judiciary identified that inadequacy of representation must be qualitatively verified for giving reservation in promotion.

• 81st Amendment Act was passed in 2000 and 16 (4B) was added where in for unfulfilled vacancies more than 50% reservation can be given. 
• In case Valsamma Paul (Mrs) Vs Cochin University, 1996,  it was interpreted that reservation is not a Transferable right.

  Is Reservation A Fundamental Right??

• In case Balaji MR Vs State of Mysore 1963 reservation is a inhabiting right, it is not a fundamental right.
• In case Ashok Kumar Gupta Vs State Of Uttar Pradesh 1997 reversing its earlier judgement, it was interpreted that reservation is a fundamental right.