1

Project report on:

ARTICLE-16

SUBMITTED TO: SUBMITTED BY:

DR. SHRUTI BEDI GURTIRATH KAUR
CONSTITUTIONAL LAW B.A.LLB.[ IV TH SEM.]
U.I.L.S. P.U. CHD. SECTION- A
ROLL NO.- 24/13
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ACKNOWLEDGEMENT

I sincerely appreciate the inspiration; support and guidance of all those people who
have been instrumental in making this project a success. I am extremely grateful to
my professor Dr. Shruti Bedi, for the confidence bestowed in me and entrusting my
project entitled ARTICLE 16.
I would also like to thank my friends for their critical advice and guidance without
which this project would not have been possible.
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Table of Contents
Acknowledgement 1
Table of cases 3
Table of abbreviations4
Introduction 5
Article-16 EQUALITY OF OPPROTUNITIES IN MATTERS OF PUBLIC
EMPLOYMENT 6
Article -16[1]Equality of opportunity 6
Article-16[2] NO DISCRIMINATION ON THE GROUND OF RELLIGION, RACE, ETC.
10
Article-16[3] REQUIREMENT AS TO RESIDENCE IN A STATE 10
Article -16[4 RESERVATION OF POSTS FOR BACKWARD CLASSES] 10
Article -16[4A] RESERVATION IN PROMOTION 15
Article-16[4B] EXCLUSION OF 50% CEILING W.R.T. RESERVED CARRY FORWARD
VACANCIES 16
Article-16[5] OFFICES UNDER A RELIGIOUS OR DENOMINATIONAL INSTITUTION
18
Conclusion 19
Bibliography 20
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TABLE OF CASES

1. ALL INDIA NON-SC/ST EMPLOYEE ASSOCIATION[RAILWAY] V. V.K.

AGARWAL, AIR 2002 SC 2875
2. ALL INDIA STATION MASTERS ASSOCIATION V. GENERAL MANAGER
CENTRAL RAILWAY,AIR 1960 SC 384
3. ASHOK KUMAR THAKUR v. STATE OF BIHAR, AIR 1996 SC 75
4. C.B. MUTHAMMA V. UNION OF INDIA, AIR 1979 SC 1868
5. DEV DUTT V. UNION OF INDIA,AIR 2008 SC 2513
6. DIPITIMAYEE PARIDA V. STATE OF ORRISA, AIR 2009SC 935
7. FACULTY ASSOCIATION OF AIIMS V. UNION OF INDIA, AIR 2013
8. INDRA SAWHNEY V. UNION OF INDIA,AIR 1993SC 477
9. K.C. VASANTH KUMAR V. STATE OF KARNATAKA, AIRAIR 1985 SC 1495
10. LEEELADHAR V. STATE OF RAJASTHAN,AIR 1981 SC 1777
11. M/S EASTERN COALFIELDS LTD. V. ANIL BADYAKAR,AIR 2009 SC 2534
12. PANDURANGRAO V. ANDHRA PRADESH PUBLIC SERVICE COMMISSION,AIR
1963 SC 268

13. RANDHIR SINGH V. UNION OF INDIA, AIR 1982 SC 879

14. R.K. SABBARWAL V. STATE OF PUNJAB, AIR 1995 SC 1371
15. STATE OF BIHAR V. KUMAR PROMOD NARAIN SINGH,JT 1997[5] SC 677
16. STATE OF KARNATAKA V. K. GOVINDA, AIR 2009 SC 618
17. STATE OF MYSORE V. NARASINGA RAO,AIR 1968 SC 1687
18. STATE OF U.P.PAWAN KUMAR TIWARI, AIR 2005 SC 658
19. STATE OF U.P. V. RAM ADHAR,AIR 2008SC 3243
20. SUPERINTENDING ENGINEER, PUBLIC HEALTH,U.T. CHANDIGARH V.
KULDEEP SINGH, AIR 1997 SC 2133
21. T.DEVADASAN V.UNION OF INDIA,AIR1964 SC 179
22. UNION OF INDIA V. HARNAM SINGH, AIR 1993 SC 1367
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TABLE OF ABBREVIATIONS

1. AIR- ALL INDIA REPORTER

2. SC- SUPREME COURT
3. ART.- ARTICLE
4. UOI- UNION OF INDIA
5. SCs- SCHEDULED CASTE
6. STs- SCHEDULED TRIBES
7. pg.- PAGE
8. Ed.- EDITION
9. HC- HIGH COURT
10. U.T.- UNION TERRITORY
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INTRODUCTION

A right is defined as the power or claims possessed by an individual against others,

recognized and upheld by the State. The rights which essential to man for the
development of his personality are called fundamental rights. These rights are
fundamental because they are the most essential for the development of individual
personality. 1 The denial of these rights will check the moral and spiritual
development of individual personality. These rights must be ascertained to citizens
in a true democratic state. Part III of the Constitution of India [Article 12-35]
contains the list of fundamental rights. These rights have not been defined in the
Constitution but they are described as fundamental because they are superior to
ordinary laws.
These fundamental rights are broken down into three parts:
1. Rights granted exclusively to citizens of India.
2. Rights granted to all persons residing in India irrespective of the fact whether
they are the citizens of India or not.
3. Rights grants to a group of citizens
These rights have been made justiceable i.e., there is force of law behind them. The
courts have been entrusted with responsibility to enforce them when and where they
have been violated. They are thus the props of the Indian democracy.
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. 2
These fundamental rights provide liberty to the people.
DR. B.R. AMBEDKAR said that the fundamental rights are the Heart and Soul of
the Constitution.
MR. JUSTICE JACKSON of the American Supreme Court while explaining the
Bill of Rights observed: the very purpose of Bill of Rights was to withdraw certain
1 Biswaranjan Mohanty, Constitution , Government and Politics in India, Ed.-june2009, pg.-
190

2 Matthew H. Kramer, N.E. Simmonds, Hillel Steiner, A Debate Over Rights, Indian Ed.-Oxford University Press,
2003, Pg.-10
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subjects from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal principles to be
applied by the courts. 3

ARTICLE- 16 EQUALITY OF OPPROTUNITIES IN MATTERS OF

PUBLIC EMPLOYMENT

The application of general principle of equality is also enshrined in Article 16 of

The Constitution of India.
This article doesnt prevent the state from prescribing the requisite qualifications
and the procedure for recruitment or appointment.

Article-16. Equality of opportunity in matters of public employment.

[1]Equality of opportunity
There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
The appointing authority can lay down pre-requisite conditions of
appointment as would be conducive to the maintenance of proper discipline
amongst government servants.
The court cannot direct the employer to prescribe a qualification for recruitment.

In the case of STATE OF MYSORE V. NARASINGA RAO 4 , The apex court

observed that the qualifications prescribed may include mental excellence,
physical fitness, sense of discipline, moral integrity and loyalty to the state
However the qualifications or the selective test must not be arbitrary. These
must be based on reasonable ground and must have nexus with the efficient
performance of the duties and the obligations of the particular office or post.
The qualifications cannot be altered or applied with retrospective effect so as
to deprive the recruitees of their right to the posts to which they were
recruited.
In the case of PANDURANGRAO V. ANDHRA PRADESH PUBLIC SERVICE
COMMISSION 5 , the rule relating to the qualifications for the appointment to the
posts of District Munsiffs, by direct recruitment prescribed that the applicant must
have been practicing as an Advocate in the High Court and must have been actually

3 Supra-1, pg.- 191

4 STATE OF MYSORE V. NARASINGA RAO,AIR 1968 SC 1687

5 PANDURANGRAO V. ANDHRA PRADESH PUBLIC SERVICE COMMISSION,AIR 1963

SC 268
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practicing in the Courts of Civil or Criminal jurisdiction in India for a period not
less than three years. The object was that the persons to be employed should have
knowledge of local laws as well as the knowledge of the regional language and
adequate experience at the bar. The application of the petitioner was rejected as he
was at that time practicing at the Mysore High Court and not at the Andhra Pradesh
High Court.
The Supreme Court held that the RULE which required which required that only a
lawyer practicing in the Andhra Pradesh High Court, had introduced a
classification between one class of Advocates and the rest and the classification
was irrational as there was no nexus between the basis of classification and the
object intended to be achieved by the said Rule.
The Rule was struck down as unconstitutional and ultra vires.

MEMBERS OF SEPARATE AND INDEPENDENT CLASSES OF

SERVICE

There can be no rule of equality between members of separate and independent

classes of services.
In the case of ALL INDIA STATION MASTERS ASSOCIATION V. GENERAL
MANAGER CENTRAL RAILWAY 6 , a Rule which provided for the promotion of
guards to the posts of Station Masters while ignoring the Road- Side Station
Masters , was held to be valid since the Guards ad Roadside station masters were
recruited separately and trained separately and had separate avenues of promotions.
They, thus formed two distinct and separate classes and for that reason there was no
scopr for predicating equality or inequality of opportunity in the matters of
promotion.
In the case of STATE OF BIHAR V. KUMAR PROMOD NARAIN SINGH 7 , the
SC ruled that selection made preparing a merit list and appointment if made, by pick
and choose would be arbitrary exercise of power, contrary to Article 16 of the
Indian Constitution.

CORRECTION OF DATE OF BIRTH

An application for the correction of date of birth in service record is to be made

within reasonable time and not on the eve of retirement, unless prima facie evidence
of impeachable character is produced. 8

6 ALL INDIA STATION MASTERS ASSOCIATION V. GENERAL MANAGER CENTRAL

RAILWAY,AIR 1960 SC 384

7 STATE OF BIHAR V. KUMAR PROMOD NARAIN SINGH,JT 1997[5] SC 677

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In the case of UNION OF INDIA V. HARNAM SINGH 9 , the SC cautioned that the
courts, the tribunals, or the high court that an application for correction of the date
of birth should not be dealt with keeping in view only the public servant concerned.
The Court pointed out that any such direction for correction of the date of birth of
the public servant concerned had a chain reaction, inasmuch as others waiting for
years, below him for their respective promotion got affected in the process and
some might suffer irreparable injury. The Court thus said that the court or tribunal
must be slow in granting an interim relief or continuance in service, unless prima
facie evidence of unimpeachable character was produced.

CUT-OFF DATE FOR ELIGIBILITY

The qualifications or extra-qualifications laid down for the recruitment should be

considered as on the last date for filling the application. 10

In the case of DIPITIMAYEE PARIDA V. STATE OF ORRISA 11 , the appellant , a

candidate for the post of Anganwadi worker was held not entitled to extra 3 marks
reserved for married woman , since the last date for filling the application was 20-9-
2000 and she got married in 2001. The selection committee, in considering her
marital status as on the date of selection rather than on the last date of preferring
applications was held to have acted with patent illegality.
In this regard three rules were laid down by the Apex Court-
1. The date appointed by the relevant service rules.
2. 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.
3. 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.

8 P.M.Bakshi,The Constitution of India,Ed.-12th , pg.-37

9 UNION OF INDIA V. HARNAM SINGH, AIR 1993 SC 1367

10 Prof. Narender Kumar, Constitutional Law of India,Ed.-2011,pg.- 178

11 DIPITIMAYEE PARIDA V. STATE OF ORRISA, AIR 2009SC 935

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WRITTEN TEST OR ORAL TEST

Holding that it was not for the court to lay down whether interview test should be
held at all or how many marks should allowed for interview test, the court in
LEEELADHAR V. STATE OF RAJASTHAN 12 case, said that the marks must be
minimal so as to avoid charges of arbitrariness, though not necessarily always. The
court opined that rigid rules could not be laid down in these matters and that the
matter might more appropriately be left to the wisdom of the experts.
Distinguishing a written examination from a viva-voce test the court observed:
While a written examination assesses the candidates knowledge and intellectual
ability, viva voce test seeks to assess a candidates overall intellectual and personal
qualities.

ANNUAL CONFIDENTIAL REPORT- COMMUNICATION OF ENTRIES

In the case of DEV DUTT V. UNION OF INDIA 13 , the SC holding that fairness and
transparency in public administration required that all entries whether poor, fair,
average, good or very good, in ACR, must be communicated ruled that non-
communication of even a single entry which might have the effect of destroying the
carrier of an officer, would be arbitrary and as such violative of ART. 16 and 14.

FILLING UP POSTS OVER AND ABOVE THOSE ADVERTISED

The state cannot make appointment to the posts over and above than the number of
posts advertised.

REGULARISATION OF AD HOC EMPLOYEES

It has been ruled that appointment made on contract basis or on daily wages or in
violation of rules, being void ab initio cannot be regularized. Also that
regularization can only be done in accordance with the rules and not the dehors the
rules.
In the case of STATE OF U.P. V. RAM ADHAR 14 , the Apex Court ruled that a
temporary employee had no right to the post. There was no principle of law, the
court said that a person appointed in a temporary capacity had a right to continue

12 LEEELADHAR V. STATE OF RAJASTHAN,AIR 1981 SC 1777

13 DEV DUTT V. UNION OF INDIA,AIR 2008 SC 2513

14 STATE OF U.P. V. RAM ADHAR,AIR 2008SC 3243

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till regular selection. Long continuance of such employees on irregular basis, would
not entitle them, to claim equality with regularly recruited employees.

COMPASSIONATE APPOINTMENT/ DIE- IN- HARNESS SCHEME

In the matter of appointment, the state is obligated to give effect to the

constitutional scheme of equality as adumbrated under Art. - 14 and 16 or
appointments, therefore must confirm to the said constitutional scheme.

In the case of M/S EASTERN COALFIELDS LTD. V. ANIL BADYAKAR 15 ,

One Kalo Dome in service of ECL died in 1981. There being dispute between his
wife and his daughter as to who was the heir of the deceased, it took almost 12
years when all heirs of the deceased submitted No Objection in favor of the
respondent, who was then appointed on compassionate ground. However, t he
appointment was cancelled.

NO DISCRIMINATION ON THE GROUND OF RELIGION, RACE, ETC.

ARTICLE-16[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.
In the case of C.B. MUTHAMMA V. UNION OF INDIA 16 , the Supreme Court
held Rule 8(1) of Indian Foreign Servi ce (Conduct and Discipline) Rules, 1961
and Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre Seniority and
Promotions) Rules, 1961, as discriminatory against women. Rule 8(1) provided that
a woman member of the service would obtain permission of the Government, in
writing, before her marriage was solemnized and could be required to resign from
service after her marriage, if the Government was satisfied that her family and
domestic commitments were likely to come to the way of the due and efficient
discharge of her duties as a member of the service. It follows that women may be
barred from employment in a particular employment if the discrimination is based
not solely on the ground of sex but on account of their non-suitability. Likewise, the
early retirement age of 50 years from flying duties for female members of the Air
India Cabin Crew, With an option to them to accept ground duties beyond 50 years
up to the age of 58 years, being a service condition agreed to and incorporated in a
binding agreement reached with the employer, cannot be held either arbitrary or
discriminatory under Articles 15 and 16. It cannot be said to be a discrimination
against females only on the ground of sex.

15 M/S EASTERN COALFIELDS LTD. V. ANIL BADYAKAR,AIR 2009 SC 2534

16 C.B. MUTHAMMA V. UNION OF INDIA, AIR 1979 SC 1868

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REQUIREMENT AS TO RESIDENCE IN A STATE ARTICLE -16[3]

Clause[3] constitutes an exception to clause[1] and [2] of Article-16.

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.

RESERVATION OF POSTS FOR BACKWARD CLASSES ARTICLE-16[4]

Article 16(4) also, no doubt, fall within Part III of the Constitution comprising the
fundamental rights.
Article 16(4) of the Indian Constitution states that
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.
Article 16(4) provides for reservation for Backward Classes in cases of
inadequate representation in public employment. 17
This Article is enacted as a remedy for the past historical discriminations
against a social class.
The expression backward class of citizens includes the Scheduled Castes
and Scheduled Tribes.

ARTICLE 16[4] IS NOT AN EXCEPTION TO ARTICLE-16[1]

It is an enabling provision, enacted to secure egalitarian equality. This article has
been held not mandatory.

SCOPE OF ARTICLE-16[4]

In T.DEVADASAN V.UOI 18 , popularly known as carry forward rule case, the SC

considered the scope of Article-16[4]. In this case the carry forward rule, regulating
reservation of vacancies for candidates belonging to scheduled castes and scheduled
tribes, was struck down by the court, as invalid and unconstitutional.

17 Dr. Durga Das Basu, Introduction To The Constitution Of India, Ed. -21st , pg. 101

18 T.DEVADASAN V.UNION OF INDIA,AIR1964 SC 179

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As a result of the application of the impugned Rule, in the year 1961, out of the 45
vacancies, actually filled, 29 went to the candidates belonging to SCs/STs. That
came to about 64% of reservation.

In the case of K.C. VASANTH KUMAR V. STATE OF KARNATAKA 19 , five

honble judges constituting the Bench of the SC, expressed separate opinions on the
issue of reservations. The propositions which are discernible from their opinion may
be summarized as follows:

1. That reservation in favor of SCs and STs must continue as at present, without
the application of a means test, for a further period not exceeding 15 years.
However, reservation must not be allowed to become vested interest.
2. In so far as the other Backward Classes are concerned , two tests should be
conjunctively applied for identifying them for the purpose of reservations,
namely:
They should be comparable to the SCs/STs in the matters of their
backwardness
They should satisfy the means test such as a State Government ,may lay down
in the context of prevailing economic conditions, since social and economic
backwardness differs from area to area.
That the policy of reservation should be revised every five years or so. Such
review would afford an opportunity-
1. To the state of rectifying distortions arising out of particular facets of the
reservation policy.
2. To the people to ventilate their views in a public debate on the practical
impact of the policy of reservation.

MANDAL COMMISSION CASE

In the case of INDRA SAWHNEY V. UNION OF INDIA 20 , which is popularly

known as the MANDAL COMMISSION CASE. Out of the bench of nine judges of
the SC, the majority opinion on various aspects of reservations may be summarized
as follows:

1. Until a law is made or rules are issued with respect to reservation in favor of
backward classes, it would always be open to the executive to provide for
reservation of appointments/ posts in favor of backward classes by an
executive order.
2. Clause[4] of Article 16 is not an exception to Article 16[1].
19 K.C. VASANTH KUMAR V. STATE OF KARNATAKA, AIRAIR 1985 SC 1495

20 INDRA SAWHNEY V. UNION OF INDIA,AIR 1993SC 477

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3. The words provisions for the reservation of appointment/posts in Article

16(4) do not contemplate only one form of provision namely reservation
simpliciter.
4. Clause (4) of Article 16 is exhaustive of the special provision that can be
made in favor the backward class of citizens.
5. Clause (4) of article 16 is not exhaustive of the concept of reservations. It is
exhaustive of reservations in favor of backward classes alone.
6. The word in article 16 (4) is used in the sense of social class.
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.
8. It is not necessary for a class to be designated as a backward classes that it
is situated similarly to the Schedules Castes/Scheduled Tribes.
9. The backwardness contemplated by Article 16(4) is mainly social
backwardness. It should not be correct to say that the backwardness under
Article 16(4) should be both social and educational.
10. A backward class cannot be determined only and exclusively with reference
to economic criterion.
11. It is permissible for the Government or other authority to identify a
backward class of citizens on the basis of occupation-cum-income without
reference to caste.
12. There is no constitutional bar to classify the backward classes of citizens
into backward and more backward categories.
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.
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.
Reserved category candidates getting selected in open competition on the
basis of their merit, should not be counted against the quota reserved for
them.
15. Article 16(40 speaks of adequate representation and not proportionate
representation. The adequacy of representation is not to be determined
merely on the basis of the overall numerical strength of the backward
classes in the services. Different levels of administration and grades have to
be taken into account.
16. The rule 50% shall be applicable only to reservation proper.
17. For the purpose of applying the rule 50%, a year should be taken as the unit
and not the entire strength of the cadre, service or un9it as the case may be.
18. The carry forward rule or unfulfilled vacancies is not per se
unconstitutional. However the operation of carry forward rule should not the
result in breach of 50% rule.
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The court has overruled Devadasan wherein the carry forward rule was
struck down on the ground that its application resulted in reservation of
more than 50% vacancies in favor of the backward classes.

19. Article 16[4] does not contemplate or permit reservation in promotions as

well. The reservations are confined to initial appointments only.
20. Reservation for backward classes should not be made in services and
position where merit alone counts.

In the case of FACULTY ASSOCIATION OF AIIMS V. UNION OF INDIA 21 .

The question before the Apex court, 5 Judge Constitutional bench headed by Former Chief
Justice of India Altamas Kabira rising out of appeal from Special Leave Petition was whether
reservation was in applicable to Specialty and super-specialty Faculty posts in AIIMS. The
Petitioner in this case, the Faculty of AIIMS, had submitted that reservation should not be
allowed at the specialty and super-specialty level and submitted further that introduction of
concept of reservation at the specialty and super-specialty subjects or for the appointment of the
Faculty in AIIMS, would defeat the very purpose for which the institute was established.
Petitioner further submitted that to achieve excellence at the level of super-specialty, no
compromise could be made in either imparting education or recruiting those persons who shall
be imparting education at the level. The petitioner further submitted that the decision of the High
Court was against the decisions rendered by Apex Court where it had been held that there should
be no type of reservation at super-specialty stage. The apex Court also observed in aforesaid
matter that in Indra sawhney case, the Apex Court had provided a caution that it was not
advisable to provide reservation in those services where only merit counts on account of nature
of duties and hierarchy at which they are stood. The apex Court also said that very concept of
reservation implied mediocrity and it shall have to take into consideration the observations laid
down in Indra Sawhney case. The Apex Court thus upheld the decisions rendered in Indra
Sawhney case.

CREAMY LAYER

The government of India appointed an expert committee known as Justice Ran

Nandan Committee, to identify the creamy layer among the socially and
educationally backward classes.
The significance of creamy layer was reiterated and it was held that once backward
cannot always be backward. The creamy layer has no place in the reservation
system. 22

21 FACULTY ASSOCIATION OF AIIMS V. UNION OF INDIA, AIR 2013

22 Supra-9, pg.-208
 16

If the creamy layer is not excluded or forward castes get included in the backward
classes, there will be a breach not only of Article 14 but of the basic structure of the
constitution.

CREAMY LAYER-IMPACT OF EXCLUSION

It was urged that if the creamy layer is eliminated there may be no representation
for a particular backward class in the public services because the remaining
members (non-creamy layer) may not have reached to the level or standard
necessary to qualify for entrance into the service even within the reservation quota.

In ASHOK KUMAR THAKUR v. STATE OF BIHAR 23 , 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 additional conditions 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.

In the Tribune 15-10-2008,20. A five-Judge Bench of the Supreme Court, recently,

deprecated the governments decision of raising the income ceiling to Rs. 4.5 lakh a
year for OBC families for identifying the creamy layer. The court observed that
the Government was trying to benefit the Cream out of the Creamy Layer by
raising the income ceiling.
`

RESERVATION IN PROMOTION- SEVENTY-SEVENTH AMENDMENT, 1995

[ARTICLE 16 (4A)]

In INDRA SAWHNEY V. UNION OF INDIA 24 , (The Mandal Commission Case),

after taking into consideration all the circumstances, said that Article 16(4) did not
contemplate or permit reservation promotions.

The Court observed that while it was certainly just to say that a handicap should be
given to backward classes of citizens at the stage of initial appointment, but it
would be a serious and unacceptable inroad into the rule of equality of opportunity

23 ASHOK KUMAR THAKUR v. STATE OF BIHAR, AIR 1996 SC 75

24 INDRA SAWHNEY V. UNION OF INDIA, AIR 1993 SC 477

 17

to say that such a handicap should be provided at every stage of promotion

throughout their career.

The above rule laid down by the Superme Court has been modified as regards the
members belonging to the Scheduled Castes and the Schedules Tribes, by the
Constitution (Seventy-seventh Amendment) Act, 1995, which has added a new
Clause (4A) to Article 16 was added which provides:

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

RESERVATION IN PROMOTION: CATCH-UP RULE NEGATED-85 T H

AMENDMENT, 2001

Article 16(4A) has been amended by the Constitution (85 t h 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 to any class , the words
in matter of promotion with consequential seniority to any class have been
substituted. 25

The constitutional validity of the Constitution (Eighty-fifth Amendment) Act,

2001 has been upheld by a Constitution Bench of the Supreme Court in M. Nagaraj
v. Union of India 26 ,The Court ruled that obliteration of the catch-up rule or
insertion of the concept of consequential seniority code did not violate the basic
structure of the equality code enshrined in Articles 14, 15 and 16.

EXCLUSION OF 50% CEILING W.R.T. RESERVED CARRY FORWARD

VACANCIES [ARTICLE 16(4B)]

ARTICLE 16(4B):
Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or
clause (4A) as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered together
25 Supra-10, pg.- 212

26 M. Nagaraj v. Union of India, AIR 2007 SC 71

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with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent. reservation on total number of
vacancies of that year.

In addition, via the 81st Amendment , the government had also inserted
Article 16(4B) into the Constitution, which read, in relevant part:

[The State may consider] any unfilled vacancies of a year which are reserved for being
filled up in that year as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for determining the ceiling of fifty
per cent reservation on total number of vacancies of that year.27

This is known as the carry-forward rule. Given the total reservation cannot exceed 50% in any
given year, this rule allows the government to do an end run around that rule by carrying
forward unfilled reserved posts from one year to the next; so suppose there are 100 posts, out of
which 50 are reserved.

For example, in year x, for whatever reason, only 30 out of 50 reserved posts are filled. Then, in
year x + 1, the twenty unfilled posts can be carried forward that is, the reserved posts in year
x + 1 can be 50 + 20 = 70, and so onwards through the years.

Articles 16(4A) and 16(4B) were challenged before a Constitution Bench in

2007, in M. Nagaraj v. Union of India.

PRINCIPLE OF ALTERNATIVE EXCHANGE

In SUPERINTENDING ENGINEER, PUBLIC HEALTH,U.T. CHANDIGARH V.

KULDEEP SINGH, 28 the Supreme Court ruled that as per principle of alternative
exchange, where no Scheduled Tribe was there, Scheduled Caste has to be
considered for promotion. It was further held that in such a case, promotion could
not be given to a candidate from general category in preference to the eligible
Scheduled Caste candidate.

FILLING OF VACANCIES BELONGING TO DIFFERENT

CATEGORIES

27 https://indconlawphil.wordpress.com/2014/03/ accessed at 8p.m. on 18/3/2015

28 Superintending Engineer, Public Health, U.T. Chandigarh v. Kuldeep Singh, AIR 1997 SC
2133
 19

In R.K. SABBARWAL V. STATE OF PUNJAB 29 , the court held that once the
total cadre has full representation of the Scheduled Castes/Tribes and Backward
Classes, in accordance with the reservation policy, then, the vacancies arising
thereafter in the cadre, were to be filed amongst the category of persons to whom
the respective vacancies belonged.

A three-Judge Bench of the Supreme Court, in State of U.P. v. Pawan Kumar

Tiwari 30 , while holding that reservation exceeding 50% would be unconstitutional,
laid down that while determining the number of posts on the basis of percentage
quota for different categories, the rule of rounding off required, if part is one-half
or more, its value shall be increased by one and if part is less than half then its
value shall be ignored.

RESERVATION AND FIXATION OF QUOTA

In IMDIAN RAILWAY CLASS ll OFFICERS FEDERATION V. ANIL KUMAR

SANGHI, the Apex Court has rules that the power to vary quota would be violative
Article 16. Provision in Recruitment Rules for variation of quota, has been held
equivalent to power of relaxation. It has also been held that for determining the
quota of direct recruits, both temporary and permanent posts are to be counte d and
taken into consideration.

RESERVATION AND RESTRUCTURING OF POSTS

The Apex Court in All INDIA NON-SC/ST EMPLOYEEES

ASSOCIATION[RAILWAY] V. V.K. AGGARWAL 31 , has ruled that the principle of
reservation would not be applicable to restructuring of posts. It has been clarifies
that if as a result of reclassification or re-adjustment, there is no additional post
which is created, the principle of reservation would not be applicable. Where, as a
result of upgradation, the existing employees were re-distributed into different
scales of pay, no new post being created, the principle of reservation would not be
applicable.

PRINCIPLES OF RESERVATION DO NOT APPLY TO ISOLATED

POST

29 R.K. Sabbarwal v. State of Punjab, AIR 1995 SC 1371

30 State of U.P. v. Pawan Kumar Tiwari, AIR 2005 SC 658

31 All India Non-SC/ST Employee Association (Railway) v. V.K. Agarwal, AIR 2002 SC 2875
 20

The Supreme Court in STATE OF KARNATAKA V. K. GOVINDA 32 , held that in

the cadre of lecturers single and isolated posts in respect of different disciplines
could exist as a separate cadre.

OFFICES UNDER A RELIGIOUS OR DENOMINATIONAL

INSTITUTION [ARTICLES 16(5)]:

(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.

EQUAL PAY FOR EQUAL WORK

In RANDHIR SINGH V. UNION OF INDIA 33 , the Supreme Court enunciated the

principle of equal pay equal work. The Court observed that it was true that the
principle of equal pay equal work was not expressly declared by the Constitution
to be a fundamental right. But, it certainly was the constitutional goal. The court
held that this principle could be deducted from Articles 14 and 16, when these
provisions were construed in the light of the Preamble and Article 39(d) of the
constitution.

CONCLUSION
32 State of Karnatake v. K. Govinda, AIR 2009 SC 618

33 Randhir Singh v. Union of India, AIR 1982 SC 879

 21

Article 16 of the Constitution of India is a bundle of contradictions, as on the

one hand it deals with equality of opportunity in matters of public employment, and,
on the other, it enables the government to provide for reservation in public
employment 34 . 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
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.

.
.

BIBLIOGRAPHY

34 https:// indconlawphil.wordpress.com/2014/03 accessed at 5 p.m. on 21/3/2015

 22

1. Bakshi, P.M.,The Constitution of India,Ed.-12th ,Universal law publishing co.

2. Dr. Basu, Durga Das , Introduction To The Constitution Of India, Ed. -21 st , lexis nexis
publishers
3. Mohanty, Biswaranjan , Constitution , Government and Politics in India, Ed.-june2009,
New Century Publications
4. Matthew H. Kramer, N.E. Simmonds, Hillel Steiner, A Debate Over Rights, Indian Ed.-Oxford University
Press, 2003
5. Prof. Narender Kumar, Constitutional Law of India,Ed.-2011

WEBLIOGRAPHY
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