Constitution of India

Part III

Fundamental Rights

Right to Equality

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

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

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

(4A) Nothing in this article shall prevent the State from making any provision for reservation 3 [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour 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.

(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 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.

(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.

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.

Explanation/Comment -

("economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage - For the Purpose of Article 15 and Article 16.)

or

(According to family income and other indices of economic disadvantage, "economically weaker sections" shall be those that the State may from time to time notify.)

Article 16 provides, in terms of employment or appointment to any post under the State, there shall be equality of opportunity for all citizens, and 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 these factors.

The phrase "employment or appointments" is broad enough to encompass both temporary and permanent employment's tenure, duration, emoluments, duties, and obligations. These include not just the initial employment but also the salary, promotion, gratuity, leave, pension, and age at which superannuation begins. "Appointment or recruiting of temporary, contractual casual, daily pay, or ad hoc work outside the Constitutional scheme cannot be regulated," the Constitution states. Such opportunities are not protected by Article 16 and cannot be made permanent.

A state, union territory, local government, or other authority may require residence as a condition of employment or appointment, and the Parliament may impose such a requirement. And nothing in this article shall prevent Parliament from passing legislation that specifies a requirement for residence within a State or Union territory prior to employment or appointment to a class or classes of offices under the government of, or any local or other authority within, a State or Union territory.

However, as stated in the Supreme Court's ruling in the case of Indra Sawhney and Others vs. Union of India and Others, the reservation of appointments or posts under article 16(4) of the Constitution is limited to initial appointment and cannot extend to reservation in the matter of promotion. and it is vital to continue the current dispensation of offering reservations in promotion for the Scheduled Castes and the Scheduled Tribes since their representation in services in the United States has not achieved the requisite level. The Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. Accordingly, the Constitution (Seventy Seventh Amendment) Act, 1995, amended the Article 16 of the Constitution by inserting a new clause (4A) in the said article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes. Government employees from Scheduled Castes and Scheduled Tribes had been benefiting from consequential seniority when they were promoted based on the rule of reservation. In light of feedback from many sources and in an effort to safeguard the interests of government employees from Scheduled Castes and Scheduled Tribes, the government has examined the situation. Accordingly, In clause (4A) of article 16 of the Constitution, the phrase "in cases of promotion to any class" was substituted through Constitution (Eighty-fifth Amendment) Act, 2001, with the phrase "in matters of promotion, with consequential seniority, to any class."

The positions designated for members of Scheduled Castes and Scheduled Tribes that could not be filled through direct recruitment due to a lack of candidates from those groups were referred to as "Backlog Vacancies." These openings were handled as a separate group and weren't subject to the 50% reservation cap. And the number of vacancies to be filled on the basis of reservations in a year, including carried forward reservations, should in no case exceed the maximum of fifty percent, the Supreme Court of India ruled in its decision in the Indra Sawhney against Union of India case. Accordingly, the Constitution (Eighty-first Amendment) Act, 2000 amended the Article 16 of the Constitution by inserting a new clause (4B) that nullified the decision on open positions on the backlog. This enables the state to classify the reserved positions that go unfulfilled in a given year as a distinct class of vacancies that will be filled in the subsequent year or years. When calculating the 50% reservation on the total number of vacancies in a given year, such classes of vacancies are not to be added to the vacancies of the year in which they are being filled. It eliminates the 50% cap on reservations for backlog vacancies, to put it briefly.

The State may make any provisions for the reservation of appointments or postings in favour of any disadvantaged class of citizens that, in the State's opinion, is not adequately represented in the services under the State without being restricted by the provisions of this article. Any disadvantaged group that is underrepresented in the state workforce may be granted appointments or positions by state policy. A legislation may mandate that a person holding a position of authority within a religious institution or a member of its governing body must be of that institution's particular faith or denomination. The State's reservation policy should be in line with its commitment to maintaining administrative effectiveness.

Further, the Constitution (One Hundred and Third Amendment) Act, 2019, along with other provisions, added clause 6 in Article 16, and accordinly nothing in this article shall prevent the State from providing, in addition to the existing reservation and subject to a maximum of 10% of the posts in each category, for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4).