This article was submitted by Ms. Rayman Kaur, a legal counsel working with a prestigious pharmaceutical company. This article elaborately discusses the evolution of Article 16 of the Indian Constitution, along with its important aspects and judicial pronouncements.
This article has been published by Sneha Mahawar.
Table of Contents
Fundamental rights, as enshrined under Part III of the Indian Constitution, guarantee basic human rights to all the citizens of India, and a few of these rights are also enjoyed by non-citizens. These rights are known as ‘fundamental rights,’ as they are justifiable in nature, and any individual whose fundamental rights have been infringed or violated can move to court. The makers of our Constitution took great inspiration from the Bill of Rights of the United States while formulating the fundamental rights for India.
The Government of India has the authority to impose service conditions under Article 309 of the Indian Constitution. However, this is subject to Articles 14 and 16. Article 16 of the Indian Constitution is about equality of opportunity in public employment, i.e., under the office of the State, for its citizens. If Article 14 is the genus, it would not be wrong to call Article 16 its species. Article 16 is merely an extension of Article 14, in which both the rules against arbitrariness and the doctrine of reasonable classification apply as held in the case of Delhi Transportation Corporation v. DTC Mazdoor Congress (1991).
The Indian Constitution bestows six fundamental rights, which are enumerated below, along with the constitutional articles related to them:
- Right to Equality (Article 14-18)
- Right to Freedom (Article 19-22)
- Right against Exploitation (Article 23-24)
- Right to Freedom of Religion (Article 25-28)
- Cultural and Educational Rights (Article 29-30)
- Right to Constitutional Remedies (Article 32)
Article 16 of the Constitution of India aims at providing equal opportunity to its citizens in terms of public appointments and employment. The first two clauses of the Article state unequivocally that no Indian citizen shall face employment discrimination. By prohibiting discrimination based on religion, race, caste, gender, place of birth, or any other factor, these clauses lay the groundwork for equal employment opportunities.
What does Article 16 of Indian Constitution say
Article 16 of the Indian Constitution covers the right to equality of opportunity in matters relating to public employment. This right is specifically guaranteed to Indian citizens only. Article 16 (1) guarantees equality of opportunity in matters relating to ‘appointment’ or ’employment’ to any post under the State. It is applicable only to offices or employment relating to or held by the Government/State.
Article 16(2) states that no citizen shall be discriminated against in any employment or office under the State on the basis of race, caste, gender, place of birth, residence, or descent. Article 16 clause (1) provides for the general rule which entails that there shall be equality in appointment in public sector jobs and there shall be no discrimination for such employment under the State, only on the grounds of religion, caste, race, sex, place of birth, descent or residence. Furthermore, Article 16 (1) and (2) are only applicable to State appointments or employment. Clauses (3), (4), (4-A), (4-B) and (5) of Article 16 of the Indian Constitution provide for exceptions to the general rule of equality of opportunity.
Clause (3) of Article 16 states that the Parliament can enact any legislation requiring residence in a state or union territory as a pre-condition for particular employment or appointments in the respective state or union territory or in local authorities or other authorities within that state or union territory.
Clause (4) of Article 16 provides that the State can enact legislation for the reservation of posts in the government sector or jobs in favour of the backward classes of citizens, which the State considers to have not been adequately represented in the services of the State. The central government took the view that since the Indra Sawhney case relates to the backward classes only, the reservation in the promotion of SCs and STs should not be affected and shall continue. However, the Parliament enacted the 77th Amendment Act, 1995 and added clause 4-A to Article 16 of the Constitution, thereby enabling the Parliament to make provisions for reservation for SCs and STs in promotion posts. This simply meant that even after the judgement of mandal case, the reservation in promotion in government jobs, shall continue.
Clause (4-B) was added after Clause (4-A) to the Indian Constitution under Article 16 by way of 81st Amendment, 2000. It was added to the Constitution with the intent that the backlog vacancies which could not be filled due to unavailability of eligible candidates of the SEBC category in a previous or preceding year, shall not be clubbed with the 50 percent reservation for the SCs and STs and Other Backward Classes on the total number of vacancies in the next year.
Clause (5) exempts a law from the application of clauses (1) and (2), which require the incumbent of any office to be religiously qualified for appointment.
Clause (6) was added to Article 16 by the 103rd Amendment, 2019, which came into effect on January 14, 2019, and empowers the State to make various provisions for reservation in appointments of members of the Economically Weaker Sections (EWS) of society to government posts. However, these provisions must be within the 10% ceiling, in addition to the existing reservations.
Important aspects of Article 16 of Indian Constitution
One Hundred and Third Amendment Act, 2019
By way of the 103rd constitutional amendment, Clause (6) was inserted in Article 15 and Article 16, which came into effect on January 14, 2019.
Article 15(6) of the Indian Constitution empowers the State to make special provisions for the advancement of economically weaker citizens of India. These special provisions would help the economically weaker sections of the society in obtaining admissions in educational institutions including private institutes, either aided or non-aided by the State. Whereas, the amendment to Article 16(6) of the Constitution empowers the State to make provisions for reservation of the economically weaker citizens of the society, except the classes already reserved, in appointment in State jobs or Govt. posts. It must be noted that the reservation under both the newly added clauses, under Article 15(6) and Article 16(6), shall be subject to a maximum of 10% in addition to the existing reservations for SCs, STs, and non-creamy layer OBCs. Furthermore, the term ‘economically weaker sections’ mentioned under Articles 15(6) and 16(6) shall be the citizens who shall be culled out based on the income of the family and various other indicators of economic disadvantage by the State on a regular basis.
The 103rd Amendment was challenged on the ground of being violative of the basic structure of the Indian Constitution in Janhit Abhiyan v. Union of India, (2022). However, by a majority of 3:2, the amendment was held to be constitutionally valid. Justice Maheshwari explained that reservation is not only affirmative actions or measures to counter social and educational backwardness; instead, they help in fighting different kinds of disadvantages. The majority also held that a 10% EWS reservation above the existing 50% reservation limit, as established in Indra Sawhney Case, is constitutional. Furthermore, all three judges agreed that the 50% limit is flexible and may be exceeded, but only in exceptional circumstances. They further discovered that the 50% limit would be applicable only to reservations for socially and educationally backward classes and not to the rest.
Descent and Residence under Clause (2) of Article 16
Under clause (2) of Article 16 of the Indian Constitution, the words – “descent” and “residence” were added, thereby guaranteeing that no discrimination can be made on these grounds. ‘Descent’ is another reason for individual discrimination. In the case of Gazula Dasaratha Rama Rao v. State (1961), the Hon’ble Supreme Court held that the office of the village Munsif was an office under the State and that Section 6(1) of the Madras Act, which required the Collector to select persons from among the last holders of the office, discriminated on the grounds of descent only and was hence void for contravening Article 16(2).
Residence can be a ground for reservation
Clause (3) of Article 16 is an exception to Clause (2) of this Article, which prohibits discrimination based on residence. However, there may be compelling reasons for reserving certain posts in the office of the State for residents only. This Article empowers the Parliament to legislate the extent to which a State may deviate from the preceding principle. In the exercise of powers conferred by Article 16(3), the Parliament has enacted the Public Employment (Requirement as to Residence) Act 1957. It states that no one can be disqualified because they are not a resident of a particular state, though the Act makes an exception for employment in Tripura, Himachal Pradesh, Manipur, and Telangana. This exception is for a period of five years due to the backwardness of these areas.
Reservation for backward classes
Clause (4) of Article 16 is another exception to the general rule established in Article 16 clauses (1) and (2). It empowers the State to make special provisions for the reservation of appointments for posts in favour of the backward class of people who, in the opinion of the State, are underrepresented in the State’s services. Thus, Article 16(4) is applicable only if the following two conditions are met:
- The class of citizens is backward, and the said class is underrepresented in State services;
- The class of citizens is underrepresented in State services.
Catch-up rule and consequential seniority
Following the constitutional recognition of reservation in promotion, the reserved category candidates who were promoted ahead of their general class counterparts became their seniors due to their earlier promotion. The Hon’ble Supreme Court addressed this anomaly by introducing the concept of a catch-up rule in two cases: Union of India v. Virpal Singh (1995) and Ajit Singh v. State of Punjab (1996). According to this rule, the senior general category candidates who were promoted after SC/ST candidates would regain their seniority over general category candidates who were promoted earlier.
Consequential seniority allows reserved category candidates to maintain seniority over general category peers. In other words, it is open to the State to provide that the candidate promoted earlier by way of the reservation rule shall not be entitled to seniority over his senior in the general category and that as and when a general candidate who was senior to him is promoted, he will regain his seniority over the reserved candidate notwithstanding that he is promoted subsequently to the reserved candidate.
The concepts of catch-up rule and consequential seniority are not constitutional requirements; neither are they implied in Article 16 clauses (1) and (4), nor are they constitutional limitations. Obliteration of these rules does not change the equality code indicated by Articles 14, 15, and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the state from taking cognizance of the compelling interests of backward classes in society. Clause (4) of Article 16 refers to affirmative actions by way of reservation, under which the government is free to provide reservation if it is satisfied on the basis of quantifiable data that backward classes are inadequately represented in the service. Therefore, in every case where the States decide to provide reservation, there must be two circumstances, namely, “backwardness” and “inadequacy of representation.” These limitations have not been removed by the impugned amendments. If the States fail to apply these tests, the reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (Equality Code). The parameters mentioned in Article 16 (4) are retained. These amendments do not change the identity of the Constitution.
Carry forward rule
The Supreme Court considered the scope of Article 16(4) in T. Devadasan v. Union of India (1964). In this case, the constitutional validity of the “carry forward rule” which was framed by the government to regulate the appointment of people from the backward classes where state services were involved, was at issue. This rule states that in case a sufficient number of candidates belonging to the SCs and STs classes were not available for appointment to the reserved quota, then the vacancies that remained unfilled would be treated as unreserved and would be filled by the fresh available candidates; however, a corresponding number of posts would be reserved in the next year for SCs and STs in addition to their reserved quota for the next year. The result was to carry forward the unutilised balance and unfilled vacancies in the second and third years at one time. In actuality, 68 percent of the vacancies were reserved for SCs and STs. The Hon’ble Supreme Court, by a 4:1 majority, had struck down the carry forward rule, declaring it unconstitutional on the ground that the power vested in government under Article 16(4) cannot be exercised in order to deny reasonable equality of opportunity pertaining to matters of public employment for members of classes other than backward classes. The Court said that recruitment must be considered each year, and the reservation for backward communities each year should not be excessive enough to create a monopoly or interfere unduly with other communities’ legitimate claims. Accordingly, the Court held that the reservation ought to be less than 50 percent, but how much less than half would depend upon the prevailing circumstances in each case.
The Hon’ble Supreme Court, in Indra Sawhney v. Union of India, overruled Devadasan v. Union of India on the point and held the “carry forward rule” valid as long as it did not, in a particular year, exceed 50 percent of vacancies. The 50% limit can only be exceeded in extraordinary situations prevailing in a State, i.e., far-flung states such as Nagaland, etc.
Evolution of Article 16 of the Indian Constitution
The Mandal Commission Case
In Indra Sawhney v. Union of India, AIR 1993 SC 447, popularly known as the “Mandal Commission case” the Hon’ble Supreme Court thoroughly examined the scope and extent of Article 16(4) in this historic case.
The following were the facts of the case:
- On January 1, 1979, the government appointed the second backward classes commission under Article 340, chaired by Sri B.P. Mandal. This Commission was charged with investigating the socially and educationally backward classes within Indian territory and making recommendations to the government for their advancement, including the necessity of making provisions for the reservation of seats in State jobs for them.
- The Commission issued its report in December 1980, identifying 3743 castes as socially and educationally backward classes. The Commission also recommended that the government grant these castes 27 percent reservation.
- Meanwhile, the Janta Dal Government collapsed due to internal dissension, and the Congress Party came into power in the Centre. The Congress Party did not implement the recommendations given in the report of the Mandal Commission until 1989. In 1989, Janta Dal again came into power after defeating the Congress Party in the parliamentary elections and, thereby, decided to implement the recommendations of the Commissions report as promised to the electorate.
- The Government of India accordingly issued the Office Memoranda (also called OM) on August 13, 1990, thereby reserving 27 percent of seats for backward classes in the State/Government services, based on the Mandal commission report.
- The acceptance of the Mandal Commission Report resulted in a violent anti-reservation movement in the nation which went on for nearly three months, causing a huge loss of persons and property. Simultaneously, the Supreme Court Bar Association filed a writ petition challenging the validity of the OM and seeking a stay of execution. The Court’s Five-Judge Bench stayed the operation of the OM till the finality of the case, a judgment of which came on October 1, 1990.
- Subsequently, on September 25, 1991, the Government issued another Office Memorandum and made two changes to the OM issued on August 13, 1990:
(i) by incorporating an economic criterion for granting reservation by giving preference to the poorer sections of Socially & Economically Backward Classes in the 27% quota, and
(ii) reserving an additional 10% of vacancies for other Socially and Educationally Backward Classes ( or SEBCs) economically backward sections of higher castes. Separately, the economic criterion was to be specified.
- The matter was referred to a special Constitution Bench of 9 Judges due to the importance of finally settling the legal position relating to reservations as in several previous judgments, the Supreme Court did not speak in the same voice on this issue. Despite various adjournments, the Union Government failed to submit the economic criteria outlined in the September 25, 1991, Official Memorandum.
- A 6:3 majority of the Supreme Court’s Constitution Bench (Justice B.P. Jeevan Reddy, C.J.I. M.H. Kania, M.N. Venkatachaliah, and A.M. Ahmadi, with SR Pandian and SB Sawant) held in separate judgments that the Union Government’s decision to reserve 27% government jobs for backward classes was constitutionally valid provided socially advanced persons— the creamy layer among them— were eliminated.
- While clarifying its stance, the Supreme Court stated that reservations of seats should be limited to initial appointments rather than promotions, and the total reservation should not exceed 50%. The Court overturned the Congress Government’s OM reserving 10% of government jobs for economically backward classes among higher classes. The majority also agreed that the reservation should not exceed 50%. While 50% shall be the rule, certain extraordinary situations inherent in this country’s and its people’s great diversity must not be overlooked. In such a case, some relaxation of this rule may be required.
- The Court thoroughly examined the scope and extent of Article 16(4) of the Indian Constitution. It clarified the various issues on which there had been disagreements in previous decisions. The Supreme Court’s majority opinion can be summarised as follows:
- In Article 16 Clause (4), a backward class of citizens can be identified based on caste rather than on an economic basis, but caste cannot be the sole basis for consideration.
- The majority held that Article 16(4) is no exception to article 16(1) of the Constitution but an independent clause. Instead, reservation can be made under clause (1) of article 16 on the basis of reasonable classification, just like the Doctrine of Equality enshrined under Article 14.
- Backward classes under Article 16(4) are not similar to the socially and educationally backwardness prescribed under Article 15(4) of the Constitution. The majority in this regard has held that the backward classes of citizens contemplated under Article 16(4) are not the same as those referred to under Article 15(4) as socially and educationally backward classes. It is much wider. Clause (4) under Article 16 of the Constitution does not contain the qualifying words “socially and educationally”, as is Clause (4) of Article 15. The “backward class of citizens” under Clause (4) of Article 16 takes in SCs and STs and all other backward classes (OBCs) of citizens, including the socially and educationally backward classes. As a result, while certain classes may not qualify under Article 15(4), they may qualify under Article 16(4). Accordingly, the Court overruled the Balaji v. State of Mysore (1963) case, which held that the backward class of citizens mentioned in Clause (4) of Article 16 is similar to the socially and educationally backward classes, SCs and STs mentioned in Article 15(4). The Court ruled that it is not necessary for a class to be labelled as backward if it is geographically located similarly to the SCs and STs.
- The exclusion of the creamy layer from the backward classes must be done.
- It was determined that Article 16(4) of the Constitution allows for the classification of backward classes as “backward and more backward.”
- It was further held that identifying backward classes of citizens solely on the basis of economic criteria would defeat the very purpose of Article 16(4), which is to provide adequate representation of backward classes in State services in order to not only alleviate or uplift them but also to give that due share in state power to those who have remained out of it primarily due to their social, and thus educational and economic backwardness.
- The reservation of backward classes shall not exceed 50 percent.
- A provision under Article 16(4) can only be made by executive order and must be approved by Parliament.
- No reservation in promotions.
- Appointment of a permanent statutory body by the Union government, State Governments, and Union Territories to investigate complaints about the incorrect inclusion or exclusion of various groups, sections, and classes from the list of other backward classes.
- No opinion was expressed with respect to the Mandal Commission Report.
- The Court further clarified that all the objections with respect to the criteria evolved by the Central and State Governments for exclusion of socially advanced persons, creamy layer, from the other backward classes would be preferred before the Supreme Court only and not before any High Court or tribunal.
The 77th Amendment Act, 1995
The Parliament enacted the Constitution 77th Amendment Act, 1995, in order to bypass the Court’s ruling on the point of no reservation in promotions in government service.
This Amendment added a new Clause (4-A) to Article 16 of the Constitution, which states that the State has the authority to make provisions for reservations in matters of promotion in favour of SCs and STs if the State believes they are underrepresented in State services.
Therefore, with the intent of reservation in matters concerning the promotion of SCs and STs, Clause (4) was inserted in Article 16 of the Constitution by the 77th Amendment. Clause (4) states that “nothing in Article 16 of the Indian Constitution shall prevent the State from enacting any provision for reservation in matters concerning promotion in favour of the Scheduled Castes and Scheduled Tribes in any state or Government related job”. Thus, the reservation in promotion in government jobs will continue in favour of SCs & STs even after the verdict of the Indra Sawhney case if the government wants to do so.
The 81st Amendment Act, 2000
The Supreme Court ruled in Indra Sawhney v. Union of India that the 50% limit would apply to both current and backlog vacancies. The eighty-first amendment added a new clause (4-B) in Article 16 after Clause (4-A), removing the 50% ceiling on reservation for SCs/STs and OBCs in backlog vacancies that could not be filled in previous years due to a lack of qualified candidates. According to Art. 16, clause (4-B), vacancies that could not be filled in previous years are treated as a separate class of vacancies and will be filled in any succeeding years and are not considered together with the vacancies of the year or years, even if they exceed the 50% limit.
The 85th Amendment Act, 2001
The Amendment changed the words “in matters of promotion to any class” in Clause 4-A to “in matters of promotion, with consequential seniority, to any class.” This Amendment aimed to extend the benefit of reservation in favour of the SC/ST in matters of promotion with consequential seniority, effective from April 1995, when the 77th Amendment to the Constitution was enacted.
The Hon’ble Supreme Court unanimously held in M. Nagaraj v. Union of India AIR 2007 SC 71 that the provisions under Article 16(4A) and 16(4B) flow from Article 16(4), which do not alter the basic structure of Article 16(4) and are valid. It also stated that the insertion of Clauses (4A) and (4B) into Article 16 does not change Article 16(4) of the Constitution. It was stated that the aforementioned amendments to the Indian Constitution providing for reservations are enabling provisions that do not change the structure of Article 16. (4). They aid in the retention of the controlling factors, namely backwardness and inadequacy of representation, allowing the State to provide for reservation while keeping the overall efficiency of the State administration in mind under Article 335. These amendments apply only to SCs and STs and do not repeal constitutional requirements such as the 50% ceiling limit (quantitative limitation), sub-classification of OBCs, SCs, and STs, and the concept of creamy layer (qualitative exclusion).
In Jarnail Singh v. Lachhmi Narain Gupta (2018), the Hon’ble Supreme Court, by a larger bench of 7 judges, struck down its backwardness criterion, held in the Nagaraj case, however, introduced the principle of creamy layer exclusion. It was held that the creamy layer exclusion shall extend to SCs/STs, however, the state cannot grant reservations in the promotion to SC/ST individuals who are members of their community’s creamy layer.
Expert Report on ‘Creamy Layer’
The expert committee, known as the Justice Ram Nandan Committee, was appointed by the Union government in lieu of the Supreme Court’s direction in the case of Indra Sawhney v. Union of India. This Committee was responsible for identifying the “creamy layer” among the socially and educationally backward classes (or the “SEBC”). The report was submitted by the Committee on March 16, 1993, and was then accepted by the Union Government. The report helps in differentiating the “creamy layer” among the SEBC and excluding it from the list of Mandal beneficiaries. Furthermore, the Commission had also developed a mechanism to determine the criteria that would be applicable to distinguish the creamy layer from other backward classes.
The report suggests that certain constitutional posts qualify for the rule of exclusion, including the posts of President, Vice President, Judges of High Courts and the Supreme Court, Chairman and members of UPSC and State PSC, Comptroller and Auditor General of India, Chief Election Commissioners, Governors, Ministers, and Members of Legislatures. This exclusion rule includes class I officers of the Union and State services, the armed forces, public sector undertakings, paramilitary forces, etc. This reservation does not apply to children whose parents work in trades, industries, or professions such as medical professionals, law, income tax consultancy, sports professionals, chartered accountancy, engineering, financial or management consultancy, or are film artists or are involved in any other film profession, or are playwrights, media professionals, authors, media, or any other vocations of similar status, etc.
In the case of Rajeev Kumar v. Union of India (2016), it was held by the Hon’ble Supreme Court that the no reservation rule in promotions, as laid down in the Indra Sawhney case, has no applicability to citizens with disabilities.
The Indian Constitution provides for the right to equality under Article 14, which has two sub-categories, namely, equality before the law and equal protection of the law. As the name suggests, equality before the law means “everyone is equal before the eyes of the law and shall thus be treated equally.” However, equal protection of the law means “likes be treated alike but unlike shall not be treated alike“. For instance, in an examination, the time duration is two hours for students with no disability, but it is four hours for blind students. This is “reasonable discrimination,” which is to bring the unequal to the same pedestal as the equals and then treat them equally.
Furthermore, the Constitution provides for the reservation of disabled citizens in State services under Clauses (1) and (2) of Article 15. Also, Article 29 (2) of the Constitution provides for similar rights for disabled citizens in matters concerning education. It states under the Article that no citizen shall be denied admission to any educational institution that is either maintained by the State or receives any aid from the State, only on the ground of disability.
Relationship between Article 15(4) and Article 16(4) of Indian Constitution
It should be noted that the guarantee against discrimination under Article 16 is limited to employment and appointment under the State. However, Article 15 is more general and addresses all cases of discrimination that do not fall under Article 16. Article 16 embodies the specific application of the general rule of equality established in Article 14 with regard to appointment and employment under the State.
According to a cursory reading of Articles 15 and 16, clause (4) of Article 15 appears to be an exception to the rest of the provisions of that article, as well as clause (2) of Article 29 and clause (4) of Article 16.
Article 29(2) of the Constitution falls within the ambit of ‘Cultural and Educational Rights, which prohibits denial of admission to any citizen ‘into any educational institution which is either owned by the State or is maintained by the State or receives aid from the State funds, on grounds only of religion, caste, race, language, or any of them.”
In other words, clause (4) of Article 15 allows what the rest of the article or clause (2) of Article 29 prohibits, i.e., to say that, Article 15(4) empowers the State to make provisions for the advancement of socially and educationally backward classes or the SCs and STs, however, Article 29(2) prohibits denial of admission in any educational institution on the grounds of religion, caste, race, language, etc. Furthermore, clause (4) of Article 16 of the Constitution states that the State shall not be prevented from making special provisions for reservation in the appointments in state-related services to any backward class of citizens, who the State thinks is not adequately represented in the State services. This impression persisted until some of the judges in State of Kerala v. N.M. Thomas (1976), decided that Article 16’s clause (4) did not constitute an exception to Article 16’s clauses (1) or (2). Chinnappa Reddy, J., reiterated this point of view much more emphatically in his concurring opinion in, and it was eventually accepted by the Court in the Mandal Commission case. Therefore, Article 16, clause 4, is not an exception to the rest of the article; rather, it is a component of the equality of opportunity guaranteed in clause (1) of that article, as well as an effective method of realising and implementing it. Clause (4) does not contradict anything in Article 16 clauses (1) and (2), but rather provides positive support and content to them. It serves the same purpose as clauses (1) and (2), namely to ensure equality of opportunity (2). As a result, it is clearly a fundamental right, just like clauses (1) and (2) or any other provision of that article.
Equal pay equal work
In the case of Randhir Singh v. Union of India (1982), the Hon’ble Supreme Court held that equal pay for equal work, while not expressly declared to be a fundamental right, is unquestionably a constitutional goal under Articles 14, 16, and 39(d) of the Constitution of India and can thus be enforced by courts in cases of unequal pay scales based on irrational classification. This principle has been applied in several cases, including D.S.Nakara v. Union of India (1983); P.K. Ram Chander Iyer v. Union of India (1984), and has, thus, become a fundamental right. Furthermore, the doctrine of equal pay for equal work is applicable equally to both temporary and casual employees performing the same set of duties and functions.
This principle of “equal pay for equal work” does not apply mechanically in every case of similar work. In the same cadre of people performing the same or similar type of work or duties, there may be two pay scales. More often than not, the functions of two positions may appear to be similar or identical, but there may be a difference in the degrees of performance.
The expression mentioned under Article 16, which states that the “matters relating to employment” are not just confined to the initial matters, but instead would apply to matters that are subsequent to the appointment as well, for example, termination of employment as held in Union of India v. P.R. More (1962), or promotions to the selection posts, and the matters concerning the salaries, leave, gratuity, periodical increments, pension, age of superannuation, etc. as held in General Manager, Southern Railway v. Rangachari (1962).
The Supreme Court overruled the judgment passed in the Rangachari case in Indra Sawhney v. Union of India on the point that there cannot be any reservation in promotion to the selection posts. However, the Parliament, by way of the 77th Amendment, added a new clause (4-A) to the Constitution under Article 16 thereby enabling the Parliament to make any provisions with respect to the reservation of Scheduled Castes and Scheduled Tribes in the promotion posts. This meant that the reservation in promotion would continue even after the decision in the Mandal Commission Case.
Right to equality is considered the most important fundamental right provided to all individuals by the Indian Constitution. It aims to achieve social and economic justice by uplifting certain sections or classes of society. Article 16 provides for equality of opportunity in the case of employment or appointment in government jobs. However, the drafting committee made certain provisions in lieu of reservation for socially and educationally Backward Classes (SEBC) of the society for appointment in government jobs. The intent behind the same was to provide opportunities to those, who have always been in the darkness (i.e. the vulnerable sections of society) by bringing them forward and giving them the opportunity to represent in the state jobs, who had always been far outside the State administration in the past. The drafter of the Indian Constitution had been mindful of the existing inequality, which was at its peak during the 1990s. They understood that the country is divided into a backward class and the rich class, so in order to unite the two sections, such provisions were essential for the overall growth of the country.
Frequently Asked Questions
What are the exceptions to the right to equal opportunity in the public sector?
In order to protect the backward and vulnerable sections of society, Article 16 provides for such expectations as the right of equality of opportunity in matters concerning public employment. The Parliament draws its power from Clause (4-A) and Clause (4-B) of Article 16 to enact any law or make any provision to make reservations for the weaker sections of society in matters of employment as well as promotion in public sector jobs.
What is the limit for reservation in public employment?
In the Mandal Commission case, the Hon’ble Supreme Court put a cap of 50% on matters relating to reservation for the SCs, STs, and Other Backward Classes in public employment.
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