Article 16

Equality of Opportunity in Public Employment

Clause (1) 

It guarantees equality of opportunity for all citizens in matters of ‘employment’ or ‘appointment’ to any post under the State.

Clause (2) 

It provides that no citizen, 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.

Clauses (1) and (2) of Article 16 lay down the general rule of opportunity or appointment under the State and that no citizen can be discriminated against or be ineligible for any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence.

 These two clauses apply only in respect of employment or office under the State. Clauses (3), (4), (4-A), (5) and (6) of Article 16 are exceptions to this general rule of equality of opportunity.

Clause (3) 

It provides that “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.”

Clause (4) 

It enables the State to make provision for reservation of posts in government jobs 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.

The expression Backward class of citizens means only SC and ST. 

Article 16(4) is an enabling provision, enacted to secure egalitarian equality. Reservation for a backward class is not a mandate. It has been held to be a prerogative of the State. It confers a discretionary power on the State to make reservation of appointments in favour of backward classes of citizens not adequately represented in the services of the State either numerically, or qualitatively. It confers no right on citizens to claim reservation. Article 16(4) has been held not mandatory.

How reservation is to be made, is a matter of policy.

Scope of Article 16 (4)

1. Reservation should be for entry level in job or in the matter of Promotion.

In Indra Sawhney case, the court ruled after taking into consideration all the circumstances, that Article 16 (4) did not contemplate or permit reservation in promotions. Parliament enacted the 77^th amendment act inserting Article 16(4A), thereby enabling the government to make laws providing quota in promotion for SCs and STs.

Rules of Promotion: The concept of the Catch-up Rule was first introduced in the Union of India Vs. Virpal Singh (1995) and Ajit Singh Vs. State of Punjab (1996). It was upheld that the senior general candidates, who were promoted after SC/ST candidates, would regain their seniority over general candidates who were promoted earlier. The Parliament later repealed the Catch-up Rule in the 85th & 117th Amendment that introduced the principle of Constitutional Seniority. The Catch-up Rule was found to be biased as for the interest of the reserved category. Therefore, the Constitution of India had given the power to each State to reserve certain posts for the granting promotion to the SCs/STs who have not been adequately represented in the government services.

Consequential seniority:

• Let us assume that A, belonging to the General Category, currently holds Level 3 of a government post.
• B, appointed under the Scheduled Caste quota, is junior to A in Level 3.
• When promotions to Level 4 are to be decided, let us assume further, that due to reservations in promotions B has to be promoted to Level 4 before A because there are no Scheduled Caste candidates at a seniority similar to that of A.
• The question that then arose was whether A would regain seniority over B when she is promoted to Level 4 in due course.
• ‘Consequential Seniority’ means that A will not regain her seniority and B will now be considered senior to A within Level 4

M. Nagaraj vs Union of India (2006), where a five-judge bench approved Parliament’s decision to extend reservations for SCs and STs to include promotions with three conditions.

It required the government to:

• Provide proof for the backwardness of the class benefitting from the reservation.
• Provide for its inadequate representation in the position/service for which reservation in promotion is to be granted.
• To show how reservations in promotions would further administrative efficiency.

 Issues after Nagraj Case:

• Whether the Nagraj Judgement needed reconsideration by a seven-judge bench.
• The second issue questioned whether the States had to collect quantifiable data to prove the backwardness and inadequacy of the class while being promoted.
• The third issue was whether the creamy layer among the scheduled castes and the scheduled tribes should be barred from obtaining promotions through the reservation.

Jarnail Singh Vs Lachhmi Narain Gupta case (2018):

Nagraj Judgement was challenged in 5 judge bench in Jarnail Singh case.

• The provision that the State must collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes is contrary to the nine-Judge Bench in Indra Sawhney case making this provision invalid.
• It was also seen in the Indra Sawhney Case that any discussion on the ‘creamy layer’ has no relevance in the context of Scheduled castes and Scheduled tribes. 
• The Court held that socially, educationally, and economically advanced cream of Scheduled Castes/Scheduled Tribes communities must be excluded from the benefits of reservation in government services to transfer quota benefits to the weakest of the weaker individuals. The court viewed the principle of the creamy layer as a principle of identification and not of equality.

B K Pavitra case (2019)

Karnataka Government has extended consequential seniority to persons belonging to SC/ST. SC in this case has upheld the validity of extension of consequential seniority to person of SC/ST Community but rejected the pleas seeking exclusion of creamy layer among the communities. The Supreme Court had investigated the 3 elements to apply the policy of reservation in promotion and put forward the following:

• Regarding Backwardness: It was held that the creamy layer test could be applied at the stage of reservation in promotion. Therefore, for Consequential Seniority, it cannot be applied.
• Regarding Inadequate Representation: The court had accepted the inadequate representation claim and stated that SCs/STs are inadequately represented in the State Government Services in Grade A, B, and C. In contrast, they are adequately represented in Grade D. The Court had further upheld the Reservation Act 2018 and allowed reservations up to 15% and 3% for SCs/STs, respectively.
• Regarding Administrative Efficiency: The Supreme Court had accepted the claim that Karnataka Government had given high performance in various sectors though it had a reservation in public sector jobs. The court further stated that ‘administrative efficiency’ would mean ‘equal representation,’ and it criticized the merit-based approach to maintain administrative efficiency.

2. Reservation should have carried Forward Rule or not.
   • Carry Forward Rule states that if reserved seats for a post are not filled by candidates belonging to reserved categories in a particular round of recruitment (due to a lack of eligible candidates), then those seats are carried forward to the next round of recruitment.
   • Indira Sawhney Case: ‘Carry Forward Rule’ is valid but it shall not violate the aforesaid 50% cap.
   • To nullify the Carry Forward Rule’s 50% cap set by Mandal Case, Constitution (81st Amendment) Act was passed. It inserted clause (4B) in Article 16, which reads as follows:
   • 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 percent reservation on total number of vacancies of that year.”

3. Whether there should be creamy layer amongst SC/ST or not.

The five-judges Bench in Nagaraj case although upheld the constitutional validity of all amendments, but the following two validations by the Supreme Court in this case became the bone of contention:

1. First: State is not bound to make reservation for SC/ST in the matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.
2. Second: It reversed its earlier stance in Mandal case, in which it had excluded the creamy layer concept on SCs/STs (that was applicable on OBCs). The verdict in Nagaraj case made clear that even if the State has compelling reasons (as stated above), the State needs to ensure that its reservation provision does not lead to excessiveness- breaching the ceiling-limit of 50%, or destroying the creamy layer principle, or extending the reservation indefinitely. Therefore, the Court extended the creamy layer principle to SCs and STs too in this verdict.

The Centre asked the Court to review its stance on the above two issues: The Court clarifying its stance in Jarnail Singh vs Lachhmi Narain Gupta case (2018) refused to refer the above issue to a larger bench.

• However, it invalidated the requirement of collecting quantifiable data by states on the backwardness of SCs and STs while granting quota in promotions as laid down by the Court in Nagaraj verdict, but states need to back it with appropriate data showing the inadequate representation of SCs & STs in the cadre.
• On the creamy layer principle for excluding the well-off amongst the SC/ST communities from availing the benefit, the Court followed the Nagaraj verdict. The Court held that socially, educationally, and economically advanced cream of Scheduled Castes/Scheduled Tribes communities must be excluded from the benefits of reservation in government services to transfer quota benefits to the weakest of the weaker individuals and not be snatched away by members of the same class who were in the “top creamy layer”.
• The Court also observed that it will not be possible to uplift the weaker sections if only the creamy layer within that class bags all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they were.

4. Sub categorisation of OBC.

The Mandal commission submitted its report in December 1980 in this report the commission identified about 3743 castes as socially & educationally backward classes and recommended for reservation of 27% in Government jobs. Matter went to 9 judge benches in Indra Sawhney case:

• Uphold reservation for OBC but Introduced creamy layer.
• But now the applicability of reservation has been questioned.
  • The policy of reservation was designed as an ad hoc policy for ten years. But it is continuing and getting extended after the end of every ten years. It is creating some sort of frustrations among the high caste people evident in Jat, Maratha, Gujjar, Patidar calls for reservation.
  • It has created a “new class of vested interest” in society.
  • Contrary to the principle of equality. Special privileges and extra protection to certain classes of people is against the policy of equality. It violates the very spirit of democracy. 
  • Violating the efficiency and merit system of recruitment.
  • Given rise to the politics of casteism in the Indian political system.

Findings of the G Rohini committee report so far

• In 2018, the Commission analysed the data of 3 lakh central job given under OBC quota over the preceding five years and OBC admissions to colleges over the preceding three years.
• The findings were: 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs.
• 95% of these jobs and seats have gone to 10 OBC communities.
• 37% of the total OBC communities—983 OBC communities—have zero representation in jobs and educational institutions.
• 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

5. Understanding of Vertical and Horizontal Reservation

Reservation is of two types: Vertical reservation means reservation for SC/ ST/OBC, and horizontal reservation means equal opportunity to other categories like women, veterans, transgender community etc.

But this reservation does not mean a separate quota but accommodation of SC women within SC quota, ST women within ST quota like this.

The Question is if OBC Disabled or women got the number equal to or more than the general category cut off, whether he will take the seat of General category quota or from OBC category only.

SC in Three Judge bench: The principle that groups eligible for horizontal reservation cannot be excluded from the open category seats because they are from other vertically reserved category communities, like SC or OBC. Women from all categories are eligible to be considered for the open category or General Category.

The Court has disapproved the view taken by some High Courts that, at the stage of accommodating candidates for effecting horizontal reservation, the candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the “Open category”.

6. All India quota: The AIQ scheme was introduced in 1986 under the Supreme Court’s directions to provide for domicile-free merit-based opportunities to students from any state aspiring to study in a good medical college in another state. The all-India quota consists of 15 per cent of the total available UG seats and 50 per cent of the total available PG seats in government medical colleges. Initially, there was no reservation in the AIQ scheme up to 2007.

• In 2007, the Supreme Court introduced 15 per cent reservation for the Scheduled Castes (SCs) and a 7.5-per cent quota for the Scheduled Tribes (STs) in the scheme.
• When the Central Educational Institutions (Reservation in Admission) Act became effective in 2007, providing for a uniform 27 per cent reservation to the Other Backward Classes (OBCs), the same was implemented in all the central educational institutions such as the Safdarjung Hospital, the Lady Hardinge Medical College, the Aligarh Muslim University and the Banaras Hindu University. 
• Accordingly, the number of seats in the medical and dental colleges was increased over the next two years (2019-20 and 2020-21) to accommodate this additional 10 per cent EWS reservation so that the total number of seats available for the unreserved category does not reduce. In the AQI seats, however, this benefit was not extended to the OBCs and EWS until recently. 
• As per the commitment to the OBCs and EWS, the govt announced “27 per cent reservation for OBCs, 10 per cent reservation for EWS” in AIQ seats for all the undergraduate/postgraduate medical/dental courses from the current academic year 2021-22.

Clause (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. 

Clause (6)

The Constitution (One Hundred and Third Amendment) Act, 2019 has inserted clause (6) in Article 16 to provide ten percent reservation of posts for economically weaker sections of citizens in addition to the existing reservation in each category. 

Restriction on women from permanent commission in army

The Supreme Court in Secretary, Ministry of Defence vs Babita Punia, 2021, provided equal opportunity to women in Army post and equal treatment with men counterparts commenting on the stereotype mentally and blanket ban restrictions on army women services. Justice D.Y Chandrachud and Justice Ajay Rastogi held that.

1. All serving women officers on SSC shall be considered for the grant of Permanent Commission.
2. The expression “in various staff appointments only” and “on staff appointments only” in the 2019 circular shall not be enforced.
3. Short Service Commission women officers who are granted Permanent Commission in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits in parity with male counterparts.
4. Blanket ban restrictions on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reasonability.
5. Upholding the Judgement of Delhi High Court, court-ordered to take necessary steps for compliance with this judgement shall be taken within three months from the date of this judgement.