16.

Equality of opportunity in matters of public employment:

(1) There shall be equality of opportunity in all matters relating to employment or appointment to any
office under the State. :

The rule applies only in respect of employments or offices which are held under the State, i.e. in respect
of persons holding offices as subordinate to the State. What is guaranteed is the equality of opportunity.
The clause accordingly does not prevent the State from laying down the requisite qualifications for
recruitment for government services, and it is open to the authority to lay down such other conditions
of appointment as would be conducive to the maintenance of proper discipline among government
servants. Like all other employers, government is also entitled to pick and choose from amongst a large
number of candidates offering themselves for employment. 1 So long as an applicant, along with others,
has been given his chance, it cannot be said that he did not have an equal opportunity along with
others, who may have been selected in preference to him. 2

While clause (1) does not preclude an administrative authority from making a selection from numerous
candidates offering themselves for employment, the selection test must not be arbitrary. If the selection
test is not based upon some reasonable principle which has a nexus with efficient performance of the
duties and obligations of the particular office, the rule of equal opportunity for employment under the
State would be violated. The qualifications posted may, besides mental excellence, include physical
fitness, sense of discipline, moral integrity and loyalty to the State. Technical qualifications and
standards may be prescribed where they are necessary. 3

The expression ‘matters relating to public employment’ must include all matters in relation to
employment both prior and subsequent to the employment which are incidental to the employment
and form part of the terms and conditions of such employment. Thus, the guarantee in clause (1) will
cover (a) initial appointments4, (b) promotions5, (c) termination of employment6 and matters relating to
salary, periodic increments, leave, gratuity, pension, age of superannuation, etc. 7

Principle of equal pay for equal work is also covered by equality of opportunity in Article 16 (1). 8 The
same fundamental principle of equality of opportunity should apply in all these matters between
persons who are either seeking the same employment or have obtained the same employment.
‘Appointment’ in clause (1) will include termination or removal from service. Arbitrary invocation of
enforcement of a service condition terminating the service of a temporary employee may itself
constitute denial of equal protection and offend the equality clause in Articles 14 and 16(1)9.

1
General Manager, S. Rly. V Rangachari, AIR 1962 SC 36; Banarsi Das v State of UP, AIR 1956 SC 520
2
High Court, Calcutta v Amal Kumar Roy, AIR 1962 SC 1704
3
Sukhnandan Thakur v State of Bihar, AIR 1957 Pat 617
4
Krishan Chander Nayar v Central Tractor Orgn, AIR 1962 SC 602; General Manager, S. Rly. V Rangachari, AIR 1962
SC 36; Ram Sharan v Dy. IG of Police, AIR 1964 SC 1559
5
General Manager, S. Rly. V Rangachari, AIR 1962 SC 36
6
Union of India v PK More, AIR 1962 SC 630
7
General Manager, S. Rly. V Rangachari, AIR 1962 SC 36;
8
Randhir Singh v Union of India, (1982) 1 SCC 618; State of MP v Pramod Bhartiya, (1993) 1 SCC 539
9
Govt Bench Press v DB Beliappa, (1979) 1 SCC 477
It is not obligatory to make rules of recruitment before a service is constituted or a post is created or
filled up. In the absence of rules, qualifications for a post can be laid down in the selfsame executive
order creating the service or post and filled up according to those qualifications. 10 But there is no rule of
equality between members of separate and independent classes of service. Thus, the road-side station
masters and guards belong to two separate and distinct classes of service between whom there is no
scope for equality or inequality of opportunity in matters of promotion.

(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 11[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 favor of any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State.

This clause expressly provides for the reservation of appointments or posts in favor of any backward
class of citizens which, in the opinion of the State is not adequately represented in the services under
the State. The power conferred on the State can only be exercised in favor of a backward class and
therefore, whether a particular class of citizens is backward, is an objective factor to be determined by
the State. While the State has necessarily to ascertain whether a particular class of citizens is backward
or not, having regard to acceptable criteria, it is not the final word on the question. States determination
is justiciable and may be challenged if it is based on irrelevant considerations. 12

The scope of clause (4) first came up for consideration in Devadasan v UOI 13, where the court was called
upon to pronounce upon the constitutionality of the ‘carry forward rule’ framed by the Central
Government to regulate appointment of persons belonging to backward class in public services. By a
resolution of the year 1950, the government had indicated its intention to reserve 12.5 percent and 5
percent of the total available vacancies in any one year respectively for the SCs and STs. Supplementary
instructions issued by the government in 1952 provided that if in any particular year the number of
suitable candidates available was less than the number of reserved posts, the posts so in excess shall be
treated as unreserved for that particular year but in the next year the number of posts which would
have been otherwise reserved for such candidates in the normal course would be augmented by the
number which had been converted into non-reserved posts in the preceding year. This process of

10
Ramesh Prasad Singh v State of Bihar (1978) 3 SCC 37
11
Subs. By the Constitution (Seventh Amendment Act, 1956, S. 29 and Sch. For “under any State specified in the
First Schedule or any local or other authority within its territory, any requirement as to residence within that
State”.
12
Triloki Nath TIku v State of J&K, AIR 1967 SC 1283
13
AIR 1964 SC 179
carrying over which was to operate for one year at a time under the 1952 instructions was directed to
operate for two years at a time by an amendment in 1955.

The Court by a majority of four to one invalidated not the rule of carry forward as such but the rule as
amended in 1955 on the ground that the power vested in the State Government under Article 16(4)
cannot be so exercised as to deny reasonable equality of opportunity in matters of public employment
to members of classes other than backward. The object of that provision, the majority thought, was to
ensure that the backwardness of backward classes did not unduly handicap their members from
securing public employment and the State, when it made reservations in favor of backward classes did in
effect provide to the backward classes an opportunity equal to other classes, in matters of public
employment. From this premise, it went further to hold that where the reservation was so excessive in
its character as to deny in practice a reasonable opportunity to other classes it was a fraud upon the
Constitution. Since in the instant case, the number of vacancies reserved by virtue of the ‘carry forward
rule’ could be up to 54 percent of the total vacancies, which was not below the 50 percent limit laid
down in Balaji14, the rule was declared invalid.

Devdasan has been overruled in Mandal Commission case 15. The carry forward rule is valid so long as the
actual reservation in a particular year does not exceed 50 percent of the vacancies. The 50 percent limit
has to be worked out on the basis of the total vacancies in a particular year and not on the basis of the
total strength in a cadre or service. But barring extraordinary situations 50 percent limit on reservations
has to be strictly observed. This position has been changed by inclusion of clause (4-B) in Article 16 by
the Constitution (81st Amendment) Act, 2000.

For that reason, ‘if there is only one post in the cadre, there can be no reservation with reference to that
post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post.’ 16
The impact of clause (4-B) on this point is yet to be seen because primarily the Court decisions in this
regard rested on the argument that not more than 50 percent reservations could be made at a time.
Again, in P&T Scheduled Caste/Tribe Employees Welfare Association v UOI 17, the court has observed that
Article 16(4) ‘is only an enabling clause’ and ‘no writ can be issued ordinarily compelling the government
to make reservation’ under it. But in fact the court in that case directed the Central Government to
confer the same advantages on the SC and ST employees in the P&T department as enjoyed by the SC
and ST employees in the other departments of the government because the less advantageous
treatment of the P&T employees violated the ‘equality clause of the Constitution’. The Court took a
similar view in Jagdish Negi v State of UP18, where it directed the State to make reservation in all
educational institutions.

The condition precedent for the exercise of the powers conferred by Article 16(4) is that the States
ought to be satisfied that any backward class of citizens is not adequately represented in its services.
14
MR Balaji v State of Mysore, AIR 1963 SC 649, where a reservation of 68 % of seats in educational institutions
was held invalid.
15
Indira Sawhney v UOI, AIR 1993 SC 477
16
AR Choudhury v UOI, AIR 1974 SC 532
17
(1988) 4 SCC 147, 151: AIR 1989 SC 139, 142
18
AIR 1997 SC 3505
This condition precedent may refer either to the numerical inadequacy of representation in the services
or even to the qualitative inadequacy of representation.19 The advancement of the socially/
educationally backward classes requires not only that they should have adequate representation in the
lowest rung of services but that they should aspire to secure adequate representation in selection posts
in the services as well. Earlier in General Manager, S. Rly. V Rangachari, the Supreme Court had held
that the power of reservation which is conferred on the State could be exercised by it not only for
providing for reservation of appointments but also for providing for representation in selection posts as
well as promotional posts. Rangachari has, however, been overruled in the Mandal Commission case
and the Court has held that reservations can be made only in respect of direct recruitment at any level
but not in respect of promotions. However, short of reservations any special provisions may be made to
facilitate promotions of members of backward classes in the services. Reservation of vacancies of
teaching staff in registered private schools for SCs and STs has also been upheld under Article 16(4) 20.

Reservations under Article 16(4) may be made in the exercise of executive power without any legislation
support.21

(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters
of promotion to any class or classes of posts in the services under the State in favor of the SCs and STs
which, in the opinion of the State, are not adequately represented in the services under the State.

(4-B) 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 4-A 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 for 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.

19
General Manager, S. Rly. V Rangachari, AIR 1962 SC 36
20
Bharat Sevashram Sangh v State of Gujarat, (1986) 4 SCC 51
21
Comptroller & Auditor General of India v Mohan Lal Mehrotra, (1992) 1 SCC 20;
Article 16 is an instance of the application of the general rule of equality
before law laid down in Article 14 and the prohibition of discrimination
in Article 15(1) with respect to the opportunity for employment or
appointment to any office under the State. Explaining the relative scope
of Articles 14, 15 and 16, Das, J. said:
“Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in
favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter
being confined to matters relating to employment or appointment to any office under the State. Article
15 does not mention descent as one of the prohibited grounds of discrimination as Article 16 does.” 22

22
Gazula Dasaratha Rama Rao v State of AP, AIR 1961 SC 564