This article has been written by Ms. Damini Chauhan, a student of BBA.LLB (Hons), from United world school of law, Karnavati University, Gandhinagar. This author is a 5th year law student.

INTRODUCTION

One of the fundamental rights that the Indian Constitution gives to all of its residents is the right to equality. The equality of opportunity in areas of public employment is covered under Article 16. The definition of the phrase “equal opportunity” varies, and there is no universal agreement on its exact meaning. A broad interpretation of this provision is provided by the Indian Constitution. Principles of Equal Employment Opportunity (EEO) are applicable to:

• Jobs availability Conditions of employment
• relationship dynamics at work
• the process of assessing performance and
• the chance for education and professional advancement.

“Article 16 is an example of how the general rule is applied with particular reference to the possibility of appointments under the State. In terms of employment or appointment to any post under the State, it states that all citizens shall have equal opportunity. The rule of equality would be meaningless if it stood alone in a society with an unequal basic social structure; without practical application, it would remain only an idealistic concept. For this reason, the Constitution’s authors inserted clause (4) in Article 16.

“The phrase “nothing in this article” is a legislative technique to indicate its aim in the clearest possible terms that the authority granted thereby is not constrained in any way by the primary provision but instead is outside of it. Although it hasn’t truly made an exemption, it has maintained an authority that isn’t constrained by the other provisions of the Article.

Equal opportunity in matters of appointment to State functions is what Article 16 promises. According to the Supreme Court’s ruling in State of J. & K. v. K.V.N.T. Kholo, AIR 1974 S.C., equality of opportunity implies that every citizen shall be eligible for employment or appointment to any office under the State based on his qualifications and capability. Therefore, Article 16 does not exclude the State from establishing the requirements and screening procedures for hiring into government positions.

EQUITY OF OPPORTUNITY IN MATTER OF PUBLIC EMPLOYMENT: DETAILED DISCUSSION.-

(1) All citizens shall have equal access to employment opportunities and appointments to all positions held by the State. The restriction solely applies to positions held on behalf of the state, such as employment or office. i.e., the individual in a position of authority over the state. Accordingly, the clause does not prevent the state from establishing the necessary requirements for recruitment into government services, and it is permissible for the authority to establish any additional appointment conditions that would be helpful in upholding proper discipline among the servants.

Along with mental prowess, the criteria mentioned may also include physical fitness, a sense of discipline, moral integrity, and state allegiance. All matters related to employment, both before and after the employment, which are incidental to the employment and constitute portions of the terms and conditions of such employment, must be included under the word “Matters relating to employment and appointment.”

Therefore, the guarantee in clause (1) will include the following: (a) initial appointments, (b) promotions, (c) termination of employment, and (d) matters relating to the wage, periodic increases, leave, gratuity, pension, age of superannuation, etc. In section 16, the equal pay for equal work principle is also discussed (1). Justice V.R. Krishna Iyer correctly noted that the experience of reservation in practise showed that the benefits were, by and large, snatched away by the top creamy layer of the backward classes or classes, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the entire cake. This was due to the case of M Thomas v. State of Kerala. Significantly lessened by the passage of time, improvements in education, and other factors  of employment.

(2) No citizen will be excluded from or subject to discrimination in connection with any employment or office under the State solely on the basis of religion, race, caste, sex, descent, place of birth, or domicile, or any combination of them. Religion, race, caste, sex, descent, place of birth, residency, or any of these are prohibited debate topics. The phrase “any occupation or office under the State” makes it clear that only public employment is covered by Article 16(2).

The Supreme Court has suggested that the mean test should be used to determine whether reservations should be made in favour of backward classes in K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 S.C. 1495. It has also been suggested that the reservation policy be revisited approximately every five years to determine whether a class has advanced to the point where reservations are unnecessary. Its name ought to be removed from the group of obsolete classes.

In Indira Sawhney & Ors. v. Union of India, the Supreme Court (AIR 1993 SC 477)

• Upheld the introduction of distinct reservations for other underprivileged groups in positions with the national government.
• ordered to deny access to reservation services to the Creamy layer and other underprivileged classes.
• Restrict reservations to the 50% maximum as per order.
• ruled against the validity of special reservations for forward castes who are economically disadvantaged.

(3) Nothing in this article shall prevent Parliament from passing a law specifying a requirement for prior residence in the State or Union territory for any class or classes of employment or appointments to offices under the government of, or any local or other authority within, a State or Union territory. Mysore v. M. R. Balaji AIR 1963 SC 649 Almost all states, with the exception of Tamil Nadu (69%, under the 9th schedule) and Rajasthan (68% quota, including 14% for advanced castes, post-Gujjar violence 2008), have not exceeded the court-imposed 50% cap on reservations. In 1980, Tamil Nadu went over the allotment. In 2005, Andhra Pradesh attempted to go beyond the limit but was once more stopped by high court.

(4) Nothing in this article shall be construed as prohibiting the State from providing for the reserve of appointments or posts in favour of any disadvantaged class of people that the State deems to be insufficiently represented in the services rendered by the State.

In Devadasan v. Union of India, AIR 1964 S.C. 179, the Supreme Court examined the application of Article 16(4). In this instance, the “carry forward rule,” created by the government to control the appointment of people from underprivileged classes to government positions, was at play.

The “carry forward rule” was declared illegal by the Supreme Court on the grounds that the government cannot use its power in such a way as to deny members of classes other than backward classes fair equality of opportunity in areas of public employment. Due to the “carry forward rule,” the percentage of posts reserved for members of the underprivileged classes in this case exceeded 50% and increased to 68%.

The Supreme Court ruled that every year of recruiting must be taken into account separately, and that no year’s reserve should be substantial enough to establish a monopoly or inadvertently interfere with the legitimate entitlements of other members of society. Therefore, the court ruled that reserve should be less than 50%, but the exact percentage should depend on the circumstances at the time. State of Punjab v. Hiralal (1970(3) SCC 567), S. Rly. v. Rangachari (1962 SC 36), and Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246 are some cases that support this. Promotions were reserved for appointments or posts under Article 16(4).

This was overturned in Indira Sawhney & Ors v. Union of India, which declared that reservations cannot be used in promotions (AIR 1993 SC 477: 1992 SCC 217).

(4A) Nothing in this article shall prohibit the State from providing for reservations in matters of promotion, with consequential seniority, to any class or classes of posts in the State’s services in favour of the Scheduled Castes and the Scheduled Tribes that, in the State’s opinion, are not adequately represented in those services.

The choice about other underprivileged sections is unaffected by this clause, however the scheduled castes and scheduled tribes are excluded. The Court had once ruled that even the seniority gained by the promotion of the general class candidates for the Scheduled Castes and Scheduled Tribes candidates could not be damaged by the subsequent promotion of the general class candidates. Union of India v. S. Vinodkumar, 1996, 6 SCC 580 It was not acceptable to relax the evaluation criteria or qualifying marks in instances involving reservations for promotions.

(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). Such class of vacancies shall not be taken into consideration with the vacancies of the year in which they are being filled up for determining the ceiling. Regarding the overall number of openings for that year.

(5) The application of any law requiring the holder of a position in connection with the operations of any religious or denominational institution or any member of its governing body to be a person professing a particular religion or belonging to a particular denomination is unaffected by this article. According to the ruling in the case of UOI v. S. Kalugasalamoorthy, when a candidate is chosen based on his own seniority, there is no need to take him into account or count him toward the reserved quota.

The Supreme Court decided that reservations cannot be imposed on private, unaided educational institutions in the cases of T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 and P.A. Inamdar v. State of Maharashtra (2005) AIR (SC) 3226.

WHEN IS THE RESERVATION ALLOWED TO THE BACKWARD CLASS?

The Indian government uses the aggregate term Other Backward Class (OBC) to categorise castes that have social and educational disadvantages. Along with Scheduled Castes and Scheduled Tribes, it is one of the official classifications of India’s population (SCs and STs). The more crucial question is whether caste, religion, and other irrelevant factors should be allowed to supersede merit and efficiency standards in affirmative action programmes.

According to Aristotle, injustice occurs when both equals and unequals are treated unfairly. Problems can arise when deciding on the best distributional basis for preference. Individual need, status, merit, or entitlement have all been proposed as viable bases for benefit distribution under the right conditions.

Bernard Williams continues by illuminating the true meaning of equality of opportunity: “It requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but that the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them.”

We cannot include portions of the population that are only recognised by the qualities that are used to determine how the good is distributed because that would further exclude other segments of the population. Everyone will concur that merit is an appropriate criterion for admission to a medical college, where places are limited. Now, excluding potential candidates for a position based on criteria other than merit is ostensibly denying them equal opportunity.

It has been emphasised in Achill Bharitaya Soshit Karamchari Sangh that the scheduled caste and scheduled tribe classifications as a class could be justified as just and reasonable within the meaning of Articles 15(1) and 16(1) because these classes stand on a materially different footing from the rest of the Indian community in our Constitution.

According to him, by “other weaker section” in this sense, he meant dismally depressed sections that were comparable to Scheduled Castes and Scheduled Tribes both economically and educationally. In other words, according to him, the Scheduled Castes and Scheduled Tribes categorization as a distinct group might be justified in accordance with Articles 15(1) and 16(1), however the backward classes classification may need to be supported by Articles 15(4) and 16(1). (4).

ARE ARTICLES 15(4) AND 16(4) EXCEPTIONS?

On a simple reading of Articles 15 and 16, one is apt to get the idea that Article 15’s clause (4) is an exception to the rest of that article’s provisions and to Article 29’s clause (2), and that Article 16’s clause (4) is an exception to the rest of that article’s provisions. In other words, while clause (4) of Article 15 or clause (2) of Article 29 ban what the rest of those articles enable, clause (4) of Article 16 does the opposite.

Indeed, the Supreme Court first thought along these lines as well. Until some judges in the case State of Kerala v. N.M. Thomas expressed the opinion that clause (4) of Article 16 was not an exception to clause (1) or (2) of that article, this impression persisted. In his concurring opinion in A.B.S.K. Sangh v. Union of India, Chinnappa Reddy, J., reaffirmed this viewpoint from Thomas with much greater vehemence, and the court finally agreed with it in Indra Sawhney v. Union of India (the Mandal case).

Therefore, Article 16’s clause (4) is not an exception to the rest of the article; rather, it is a feature of the equality of opportunity provided in that article’s clause (1) and an efficient way to realise and implement it. Clause (4) adds substance to, rather than departs from, the provisions of Article 16’s clauses (1) and (2). It performs the same purpose as clauses (1) and (2), which is to ensure equality of opportunity (2). Therefore, it is obvious that it is a fundamental right much like paragraphs (1) and (2) or any other part of that paragraph.

CONCLUSION

The phrase “equality of opportunity” enjoys strong support from people in modern societies. When examined closely, equality of opportunity breaks down into multiple separate principles, some of which are antagonistic competitors. Which of these principles, if any, are morally acceptable and which should be imposed by coercion are debatable. A community free from prejudice based on presumptive traits like colour, ethnicity, religion, sex, or sexual orientation is commonly regarded as desirable in and of itself. Many people find the ideal to be more powerful than any justification that may be put out to support it.

REFERENCE

• M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009)
• State of J. & K. v. K.V.N.T. Kholo , AIR 1974 S.C.
• Mahendra P. Singh, V. N. Shukla’s Constitution of India 220-223 (11th ed., 2008) Academike
• https://www.lawctopus.com/academike/equality-opportunity-public-employment/ 

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