Article 16(4) VN Shukla

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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 tosalary, 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

1 General Manager, S. Rly. V Rangachari, AIR 1962 SC 36; Banarsi Das v State of UP, AIR 1956 SC 5202

High Court, Calcutta v Amal Kumar Roy, AIR 1962 SC 17043

Sukhnandan Thakur v State of Bihar, AIR 1957 Pat 6174

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 15595

General Manager, S. Rly. V Rangachari, AIR 1962 SC 366

Union of India v PK More, AIR 1962 SC 6307

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


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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.

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 ofequality 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 office11

[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 bythe 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 UOI13, 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

9Govt Bench Press v DB Beliappa, (1979) 1 SCC 477

10Ramesh Prasad Singh v State of Bihar (1978) 3 SCC 37

11Subs. 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 128313

AIR 1964 SC 179


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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

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 theConstitution. 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 case15. 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 l imit on reservations

has to be strictly observed. This position has been changed by inclusion of clause (4-B) in Article 16 by

the Constitution (81

st

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 UOI17

, 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

14MR 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 47716

AR Choudhury v UOI, AIR 1974 SC 53217

(1988) 4 SCC 147, 151: AIR 1989 SC 139, 142


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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.

This condition precedent may refer either to the numerical inadequacy of representation in the servicesor even to the qualitative inadequacy of representation.

19The 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 ofteaching 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 madeunder clause 4 or clause 4-A as a separate class of vacancies to be fil led 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.

18AIR 1997 SC 3505

19General Manager, S. Rly. V Rangachari, AIR 1962 SC 36

20Bharat Sevashram Sangh v State of Gujarat, (1986) 4 SCC 51

21Comptroller & Auditor General of India v Mohan Lal Mehrotra, (1992) 1 SCC 20;


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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

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

Article 16(4) VN Shukla

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