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Article 16
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ACKNOWLEDGEMENT
I owe a great many thanks to a great many people who helped and supported me during the
writing of this project.
Article 16
My deepest thanks to my Constitutional Law Lecturer, for guiding me and correcting various
documents of mine with attention and care. He has taken pain to go through the project and
make necessary corrections as and when needed.
I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.
TABLE OF CONTENTS
INTRODUCTION....................................................................................................... 3
Article 16 vs. Article 15................................................................................................ 4
Equality of Opportunity- State may lay down Qualifications or Conditions [Article 16(1)]..............5
Members of Separate and Independent Classes of Service...................................................5
Educational Qualifications as Basis of Classification.........................................................6
Article 16
[Article 16(4A)]............20
Exclusion of 50% Ceiling w.r.t. Carry Forward Reserved Vacancies [Article 16(4B)]...............20
Reservation in Promotion: Catch-up Rule Negated- 85th Amendment, 2001..........................20
Principles of Reservation do not apply to Isolated Post.....................................................21
Offices under a Religious or Denominational Institution [Article 16(5)]...................................21
Equal Pay for Equal Work........................................................................................... 22
ARTICLE 16 AS A BUNDLE OF CONTRADICTIONS.....................................................23
AN EPILOGUE........................................................................................................ 24
BIBIOGRAPHY....................................................................................................... 25
INTRODUCTION
Part III of the Constitution of India, titled as Fundamental Rights (Articles 12 to 36),
secures to the people of India, certain basic, natural and inalienable rights. The inclusion of a
chapter on Fundamental Rights, in the Constitution, is in accord with the trend of modern
democratic thought. These rights are basic to a democratic polity. The guarantee of certain
basic human rights is an indispensable requirement of a free society.
Article 16
Article 16
Article 16
(ii)
if there be no cut-off date appointed by the rules, than such date as may be appointed
for the purpose, in the advertisement calling for applications; that
(iii)
If there be no such date appointed then the eligibility criteria shall be applied, by
reference to the last date appointed, by which the applications have to be received by
the competent authority.
Article 16
Article 16
Further that the Government is under no obligation to fill up all the posts for which
requisition and advertisement are given.
Article 16
Article 16
10
citizens to claim reservation. Article 16(4) has been held not mandatory. How reservation is
to be made, is a matter of policy.
The Supreme Court in E.V. Chinnaiah v. State of A.P., while striking down the Andhra
Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000, ruled that while
reasonable classification is permissible, micro-classification or mini-classification is not.
The State, thus, has no power to sub-divide, sub-classify or sub-group the castes which are
found in the Presidential List of Scheduled Castes, issued under Article 341. The Court
explained that the principle of sub-classification of Backward Class into backward and more
backward was not applicable to Scheduled Castes and Scheduled Tribes.
If a State or Union Territory makes a provision whereunder the benefit of reservation is
extended only to such Scheduled Castes/Tribes which are recognized as such, in relation to
that State/Union Territory, then such a provision would be perfectly valid.
In Indra Sawhney v. Union of India, the Supreme Court ruled that Clause (4) of Article 16
is not an exception to Clause (1) rather it is an instance of classification implicit in and
permitted by Clause (1).
The term reservation in Article 16(4) implies a separate quota which is reserved for a
special category of persons. The very purpose of reservation is to protect the weaker category,
against competition from the open category candidates. Reservation implies selection of less
meritorious person. Thus, grant of relaxation in passing marks to SC/ST candidates in
examinations, would be covered by Article 16(4).
Article 16
11
Rule, the members belonging to Scheduled Castes/Tribes were granted a longer period and
were given two extra years to pass the test.
With a view to settle the law, relating to the reservations in an authoritative way, a special
Bench of nine Judges of the Supreme Court, was, for the first time, constituted in Indra
Sawhney v. Union of India, which is popularly known as Mondal Commission case. The
issue was thoroughly examined by the Court in its historical prospective. The majority
opinion on various aspects of reservations may be summarised as follows:
(1)
Until a law is made or rules are issued under Article 309 with respect to reservation in
favour of backward classes, it would always be open to the Executive (Government)
to provide for reservation of appointment/posts in favour of Backward Classes by an
executive order.
(2)
(3)
(4)
Clause (4) of Article 16 is exhaustive of the special provision that can be made in
favour of the backward class of citizens.
(5)
(6)
The word class in Article 16(4) is used in the sense of social class. It is not
antithetical to caste. The Constitution is meant for the entire country and for all time
to come.
(7)
For Identification of backward classes, one has to begin somewhere with some group,
class or section. Neither the Constitution nor the law prescribes the procedure or
method of identification of backward classes. Nor is it possible or advisable for the
Court to lay down any such procedure or method. It must be left to the authority
appointed to identify. It can adopt such method/procedure as it thinks convenient.
(8)
(9)
Article 16
12
(10)
(11)
(12)
(13)
In order that the backward classes are given adequate representation in the State
services and to ensure that the benefit of reservation reach the poorer and the weakest
section of the backward class, the creamy layer should be excluded in that class, from
claiming the benefit. The Court, therefore, directed the Government of India to
specify the basis of exclusion- whether on the basis of income, extent of holding or
otherwise- of creamy layer.
(14)
The reservation contemplated in Clause (4) of Article 16 should not exceed 50%
However; in extraordinary situation this percentage may be exceeded. But, every
excess over 50% will have to be justified on valid grounds.
(15)
(16)
The rule of 50% shall be applicable only to reservations proper, it shall not be, indeed,
cannot be, applicable to exemptions, concessions or relaxations, if any, provided to
Backward Classes under Article 16(4).
(17)
For the purpose of applying the rule of 50%, a year should be taken as the unit and not
the entire strength of the cadre, service or the unit, as the case may be.
(18) The carry forward of unfilled reserved vacancies is not per se unconstitutional. However,
the operation of carry forward rule should not result in breach of 50% rule.
(19)
Article 16(4) does not contemplate or permit reservation in promotions as well. The
reservations are thus confined to initial appointments only.
(20) Reservation for backward classes should not be made in services and position where
merit alone counts.
Article 16
13
otherwise of creamy layer. In accordance with this direction, the Government of India
appointed an expert committee known as Justice Ram Nandan Committee, to identify the
creamy layer among the socially and educationally backward classes. The Committee
submitted its report on March 16, 1993, which was accepted by the Government. It was
published in Column 3 of the Schedule to the Government of India, Ministry of Personnel
Department Office Memorandum, and dated 8-9-1993.
In Ashok Kumar Thakur v. State of Bihar, the Supreme Court quashed the criteria laid
down by the States of Bihar and Uttar Pradesh for identifying the creamy layer and
excluding the affluent sections of the Backward Classes for the purposes of job reservation.
The Supreme Court held that the conditions in addition to those laid down in Mandal case,
for applying the rule of exclusion laid down by the States had no nexus with the object sought
to be achieved and were arbitrary, and hence violative of Articles 16(4) and 14 as also against
the law laid down in Mandal case.
A three-Judge Bench of the Supreme Court in Indra Sawhney v. Union ofIndia ruled that
non-exclusion of creamy layer in backward classes was violative of Articles 14 and 16(1) and
also of Article 16(4).
Reservation in Super-Specialities
In Indra Sawhney v. Union of India, the majority of the Supreme Court had opined that
there were certain services and positions where, either an account of the nature of duties
attached to them or the level (In the hierarchy) at which they were obtained, merit alone
would count. It, therefore, meant that the rule of reservation would not be applied in cases of
super-specialities.
In K. Duraisamy v. State of Tamil Nadu, the Supreme Court in this respect, observed:
It is by now a proposition well settled that at the super speciality level in particular and even
at the Post-Graduate level reservations of the kind known as protective discrimination in
favour of those considered being backward should be avoided as being not permissible.
Article 16
14
In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R.
Ambedkar, expressed his views that backward classes are which nothing else but a
collection of certain castes.
Incidentally, it is also necessary to point out that the Supreme Court in all its decisions on
reservation has interpreted the expression `backward classes' in Article 16 (4) to mean the
"socially and educationally" backward. It also emphatically rejected "economic
backwardness" as the only or the primary criterion for reservation under article 16 (4) and
observed that economic backwardness has to be on account of social and educational
backwardness. The true meaning of this expression has been considered in a number of cases
by the Supreme Court starting from Balaji to Indira Sawhney.
(1) In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons cannot
be the sole or even predominant factor though it may be a relevant test for ascertaining
whether a particular class is backward or not. The two tests should be conjunctively
applied in determining backward classes: one, they should be comparable to the Schedule
Castes and Schedule Tribes in the matter of their backwardness; and, two, they should satisfy
the means test, that is to say, the test of economic backwardness laid down by the State
government in the context of the prevailing economic conditions. Poverty, caste, occupation
and habitation are the principal factors contributing to social backwardness.
(2) In R. Chitralekha and Anr. v. State of Mysore and Ors. and Triloki Nath v. J & K
State and K.C. Vasanth Kumar v. Karnataka
The Apex Court explaining the meaning of Class observed that The quintessence of the
definition of Class is that a group of persons having common traits or attributes coupled
with retarded social, material (economic) and intellectual (educational) development in the
sense not having so much of intellect and ability will fall within the ambit of 'any backward
class of citizens' under Article 16 (4) of the Constitution.
(3) Further in R. Chitralekha v. State of Mysore, it was stated that:
...what we intend to emphasize is that under no circumstances a "class" can be equated to a
"caste", though the caste of an individual or a group of individual may be considered along
with other relevant factors in putting him in a particular class.
(4) In State of Andhra Pradesh v. P. Sagar, it has been observed that:
The expression "class" means a homogeneous section of the people grouped together because
of certain likenesses or common traits and who are identifiable by some common attributes
such as status, rank, and occupation, residence in a locality, race, religion and the like. In
determining whether a particular section forms a class, caste cannot be excluded altogether.
But in the determination of a class a test solely based upon the caste or community cannot
also be accepted.
Article 16
15
(5) In Triloki Nath v. J & K State -Shah, J., speaking for the Constitution Bench has
reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for
the purpose of Article 16 (4) in determining whether a section forms a class, a test solely
based on caste, community, race, religion, sex, descent, place of birth or residence cannot be
adopted, because it would directly offend the Constitution.
The expression backward class is not used as synonymous with backward caste or
backward community. The members of an entire caste or community may in a social,
economic and educational scale of values at a given time be backward and may on that
account be treated as a backward class, but that is not because they are members of a caste or
community, but because they form a class.
(6) In A. Peeriakaruppan, etc. v. State of Tamil Nadu
The Supreme Court observed that A caste has always been recognised as a class. If the
members of an entire caste or community at a given time are socially, economically and
educationally backward that caste on that account be treated as a backward class. This is not
because they are members of that caste or community but because they form a class.
(7) Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and
Anr. was of the view that In ascertaining social backwardness of a class of citizens it may
not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made
the sole or dominant test...
(8) In Indira Sawhney and Ors. Vs. Union of India and Ors., the Court observed that:The meaning of the expression backward classes of citizens is not qualified or restricted by
saying that it means those other backward classes who are situated similarly to Scheduled
Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be
judged by the general level of advancement of the entire population of the country or the
State, as the case may be.
There is adequate safeguard against misuse by the political executive of the power u/Art.
16(4) in the provision itself. Any determination of backwardness is neither a subjective
exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any group or class of citizens
could be treated as backward. If the executive includes, for collateral reasons, groups or
classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
Caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of
Article 16 (4) for ascertaining the social and educational backwardness of any section or
group of people so as to bring them within the wider connotation of 'backward class'.
Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in
determining the backwardness of a class of citizens.
Unless 'caste' satisfies the primary test of social backwardness as well as the educational and
economic backwardness which are the established and accepted criteria to identify the
Article 16
16
'backward class', a caste per se without satisfying the agreed formulae generally cannot fall
within the meaning of 'backward class of citizens' under Article 16 (4), save in given
exceptional circumstances such as the caste itself being identifiable with the traditional
occupation of the lower strata indicating the social backwardness. And Class has occupation
and Caste nexus; it is homogeneous and is determined by birth. It further
approved Chitralekha case.
(9) Further in case of Jagdish Negi v. State of U.P it was held Backwardness is not a static
phenomenon. It cannot continue indefinitely and the State is entitled to review the situation
from time to time.
Article 16
17
counts. In such situations, it may not be advisable to provide for reservations. For example
technical post in Research and Development organisations/departments/institutions,
superspecialities in medicine, engineering etc.
Article 16
18
Article 16(4) falls within Part III of the Indian Constitution, it cannot be called as a negative
right but its a positive right.
As Article 16(4) falls within the purview of Part III of the Constitution, it is called as a
fundamental right of the citizen. The first impression which comes into our mind, when we
says that Article 16(4) is a Fundamental Right, is that, in Hohfeldian Concepts it must be a
claim right. But a bare reading of the Provision reflects in our mind that the Right which is
given under Article 16(4) is actually a privilege which is conferred into the hands of the State.
Also if we analyse the decision of the Court in the case of P&T Schedule Caste/ Tribe
Employees Association v. U.O.I, in which the Court has observed that Article 16(4) is only
an enabling clause and no writs can be issued ordinarily compelling the government to make
reservation, we are clear that Article 16(4) is not a Claim right. As we know that, the Jural
correlative of Claim Right is Duty, if the backward classes would having a Claim right, then
the State would have under a Duty to provide reservation. But the decision of the Court in the
abovementioned case, clearly says that, the State is under no duty to provide reservation on
the wish of the Backward classes. Thus, as there is no correlative duty on the part of the State,
it is quite clear that, Article 16(4) is not a claim right for the backward classes of the society.
Hohfeld described privilege or liberty as, to have a liberty to engage in a certain action is to
be free from any duty to eschew the action, likewise, to have a liberty to abstain from a
certain action is to be free from any duty to undertake the action. Like any right, each liberty
is held by a specific person or group of persons against another specific person or group of
persons. The person against whom the liberty is held has a no-right concerning the activity or
state of affairs to which the liberty pertains.
Under Hohfeldian concept, the jural correlative and jural opposite of Privilege is No-right
and Duty. When Article 16(4) gives privileges to the State in providing reservation, it means
that the class which is favoured by this reservation has no-right to claim and at the same time
the State is also under no Duty to perform what it has been asked to do. This very concept of
privilege has been clearly proved by the decision of the Court in the case of P&T Schedule
Caste/ Tribe Employees Association v. U.O.I., in which the Court clearly held that the State
is under no duty to give reservation.
Under Hohfeldian concept of rights, Power denotes ability in a person to alter the existing
legal condition, whether of oneself or of another, for better or for worse. The correlative of
power is liability which denotes the position of a person whose legal condition can be so
altered.
Now, if we construe the term power as stated in Indra Sawhney v. U.O.I with that of the
term power as defined by Hohfeld, we will see that a lot of conflict will arise between the
two. If the State has power under clause (4) of Article 16 of the Constitution, then in
Hohfeldian sense it will mean that the State is vested with all the power of altering the
existing legal condition. In contrast it means that, the community, i.e. the legal condition of
the backward class is easily susceptible. Also, it has been mentioned that power itself doesnt
have any correlative duty attached to it. This also means that the State is under no duty to act,
which is to provide reservation to the backward classes.
Article 16
19
Let us go back to the debate over negative rights and positive rights, which we discussed
earlier. We found that, though Article 16(4) falls within the purview of Part III of the
Constitution, it is not a negative right in contrast that Fundamental Rights are negative rights,
but its a positive right which the State uses to provide reservation to the backward classes of
the community. Now, this was concluded from a bare reading of the provision which reads as
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. Now, lets analyse the
debate over positive rights and negative rights while referring to the interpretation given by
our Supreme Court while defining the scope of Article 16(4). The Court held that, the
provision gives power to the State to make reservation in favour of the backward classes of
the society. Thus, the debate over negative and positive rights clearly states that Privileges
and powers cannot be negative rights; and privileges, powers, and immunities cannot be
positive rights. For example the right to enter into a binding agreement, and the right to veto a
bill, are neither negative nor positive. Thus, we have seen that, it is neither a positive right nor
a negative right.
If this is the power which the Constitution provides to the State under Article 16(4), then
there will be a great conflict. The main conflict which will arise is that, whether we should go
by the interpretation which was made by the Court while defining the Scope of the provision
or we have to go by the provision itself which is given under part III of the Constitution.
From the above discussions, we have seen that, the State is either having a privilege or power
in Hohfeldian concept and thus it is not bound by the people of the backward class to provide
any benefit to the particular community, for which the provision was added into our
Constitution.
Thus, if we would look at the provision of Article 16(4) of our Constitution in terms of
Hohfeldian Concept of Rights, we will find that it is not a Fundamental Right of the Citizens.
The very nature of the Fundamental Rights is to limit the power of the State and to give the
Citizens of the State an upper hand. But from the above discussions we have seen that, it is
the State which is incurring power from the very provision of the Constitution and it is in
contradiction to the very nature of Fundamental Rights.
Thus, we can conclude that, if we look at the provision of Article 16(4) of the Constitution,
from Hohfeldian Concept of Rights, then Article 16(4) of our Constitution, though its come
within the purview of part III of the Constitution, is not a Fundamental Right of the Citizen.
But, from a general understanding of Rights and as understood by every person, Article 16(4)
is still considered as a Fundamental Right. So, we can say that the Hohfeldian Concept of
Rights is an abstract notion and we cannot apply it into any statutes e.g., like our
Constitution, and if we would try to apply this to any working legal system then everything
will go haywire.
Article 16
20
Article 16
21
To negate the effect of the above judgments, Article 16(4A) has been amended by the
Constitution (85th Amendment) Act, 2001. In the amended Clause (4A) of Article 16, in
place of the words in matter of promotion to any class, the words in matter of promotion
with consequential seniority to any class have been substituted.
Article 16
22
Article 16
23
Granting different pay scales to employees belonging to same cadre, based on educational
qualifications has been held not discriminatory. Likewise, distinction between trained and
untrained lecturers, for purposes of prescribing pay scales, has been held valid and
reasonable.
The rule of equal pay for equal work is not always easy to apply. There may be inherent
difficulties in comparing and evaluating work done by different persons in different
organisations or even in the same organisation. It is not an abstract doctrine. The judgment of
administrative authorities concerning the responsibilities which attach to the post and the
degree of reliability expected of an incumbent, would be a value judgment of the authority
concerned, which if arrived at bona fide, reasonably and rationally, was not open to
interference by the Court. The nature of world the sphere of work, duration of work and other
special circumstances, if any, attached to the performance of duties, would have also to be
taken into consideration while working the doctrine of equal pay for equal work. The rule
has been held not applicable where there was difference in the mode of recruitment,
qualifications and promotion among persons though holding same posts and performing
similar work.
Again, pay parity, between employees of State Government and Central Government cannot
be claimed on the basis of identity of designation. Also, temporary Ad hoc, daily wagers or
casual workers like N.M.Rs., have been held not entitled to equal pay with regularly
employed permanent staff in the establishment.
In S.C. Chandra v. State of Jharkhand, the Apex Court held that teachers in schools could
not be equated with clerks in Government Corporation or State Government.
The Court also referred to the decision in State of T.N. v. M.R. Alagappan, wherein the
Apex Court observed that substantial similarity in duties and responsibilities and
interchangeability of posts, might not also necessarily attract, the principle of equal pay for
equal work when there were other distinguishing features.
Article 16
24
employment or appointment to any office under the State. This Article also provides that no
citizen shall be ineligible for any office or employment under the State on grounds only of
religion, race, caste, sex, descent, and place of birth or any of them.
After having stated the above, several exceptions are also provided for. Place of residence
may be laid down by the legislature as a condition for particular classes of employment or
appointment in any State or any local authority. Further, the State may reserve any post or
appointment in favour of any backward class of citizens, who, in the opinion of the State, are
not adequately represented in the services under that State. In addition, the offices connected
with the religious or denominated institutions may be reserved for the members practicing
that particular religion.
The most important and controversial exception pertains to the provisions of Article 16(4)
relating to the claims of the members of the Scheduled Caste and Scheduled Tribe
communities in the matters of appointment to the services and posts under the Union and the
States, to be consistent with efficiency in administration as far as possible (Article 335). The
Supreme Court has held that while the provisions of Article 16(4) are without any limitation
upon the power of reservation, yet it has to be read with the provisions of Article 335 for
maintenance of efficiency in administration. The Apex Court also held that the total
reservation under Article 16(4) should not exceed 50 per cent.
Detailed study of the provisions of the Article 16 reveals that while originally this Article
aimed at protecting the rights of common man with regard to equality of opportunity but
gradually, due to the need felt by the government to extend the benefit of reservation to the
other backward classes and also the political considerations, its focus has now shifted to
providing the benefit of reservation to the backward classes and the SC/ST. But one thing has
been confirmed that the extension of the benefit cannot be arbitrary.
Various pronouncements of the Supreme Court of India during the past almost six decades
have plugged the gaps in the provisions of this Article and also provided a standard
framework for extending the benefit of reservation in future to any other categories. The
measures that looked to be controversial initially have also been settled by the judgments of
the highest court of law in the country.
AN EPILOGUE
The reservation policy in India in all sectors has become a disturbing and cyclical process.
Initially with the introduction of constitution it provided reservation for only SCs and STs
but later on OBC were included and now the other minorities are demanding reservation as
well, which would ultimately lead to a situation where the seats left for the majority would
not be proportional with their population. This therefore, becomes an unending issue, rather
than an equal opportunity issue.
Its not that only developing or underdeveloped countries are facing sociological problems
because these problems still persist in the most developed nation in the world like that of
USA. But in USA there is no reservation policy as such and there is an affirmative action
Article 16
25
program for the minorities and especially for the African-Americans. India being a
developing country is slogging in almost all facets to achieve its 2020 mission but for that
there is a serious need for reconsideration of the reservation policy in India because the
reservation policy compromises with the efficiency of a Country by not sincerely recognizing
the merits of backward classes which therefore hamper the development of a country.
BIBIOGRAPHY
BOOKS
Article 16
26
WEBSITES
<http://www.competitionmaster.com/Category.aspx?ID=e3d407c1-73b7-43dfae5c-0c449475070c>
<http://www.lawyersclubindia.com/articles/Article-16-4-of-IndianConstitution-and-Hohfeldian-Concepts-1847.asp>
<http://www.goforthelaw.com/articles/fromlawstu/article60.htm>