Equal Opportunities in Public Employment

“Injustice arises when equals are treated unequally and also when unequal are treated equally.”

ARISTOTLE

 Introduction:

The essence of equality constructs the Constitution of India, as the main aim of the constitution-makers was to create a democratic society in which justice in all forms such as social, economic and political justice prevailed, along with the equality in status and opportunities. Positive action objects to promote societal equality through the special treatment of socio-economically disadvantaged people. Societal acceptance of any law is very important because any law cannot accomplish its objective until society accepts it. Right to equality is the very basic and one of the most important features of the Indian constitution and it guarantees to all the citizens of India. If we want to bring equality in the society then the individual of every class must get an equal opportunity in every field, so that they can be part of the society without any discrimination. And that’s why equal opportunity in Public Employment is important. The Constitution harmonies Article 16, it states the Equality of Opportunity in the matters of public employment and it instructs wide commitment among the members of current services. “Equal opportunities” is a broadly used phrase which promotes the idea that everyone within an organization should have an equal chance to apply and be selected for posts, to be trained and promoted and to have their employment terminated equally and fairly. Equality or treating all classes of people equally and as one has the same relation in employment i.e. is Equal Employment Opportunity. Equal Employment Opportunity (EEO) is not just a theory, it should be practicable and also a requirement under law. Consequently, both employers and employers have to safeguard they practice Equal Employment Opportunity.

Equal Employment Opportunity (EEO) principles apply to:

  • Access to jobs
  • Conditions of employment
  • Relationships in the workplace
  • The evaluation of performance and
  • The opportunity for training and career development

Equality of opportunity means that every citizen shall be eligible for employment or appointment to any office under the State according to his qualifications and capability, as held by the Supreme Court in the case of State of J. & K. v. K.V.N.T. Kholo.

General federal laws state that a prospective employee cannot be deprived or discriminated against due to the following:

  1. Gender
  2. Race
  3. Age
  4. Incapacity/ Disability
  5. Sexual orientation
  6. Religion

Article 16 also provides such provisions and we are going to discuss this in detail. Articles 16(1) and 16(2) states a general instruction that there shall be equal opportunity for all the citizens of India in the government jobs. Though, the Article 16(3), 16(4), 16(4A) and 16 (4B) deliver the additional strength to all the kinds of the discrimination among the people on account of their unequal status. In addition to that, the Article 16(3) permits the state to make any law relating to residence qualifications which are necessary in the case of the government jobs, accordingly for making the domicile provisions stronger. The Constitution 103rd Amendment Act, 2019 has inserted clause (6) in Article 16 to provide ten per cent reservation of posts for economically weaker section of citizens in addition to the existing reservation in each category.4

Relation of Article 14,15 & 16:

Article 14 discusses the widest form of equality i.e., Equality before the law and equal protection under the law. It means that any privileges are absent to a section of people or any individual under the eyes of the law and similar people will be treated alike and no one will be favoured and discriminated, the law will provide equal protection to all the citizens of India. Article 15 protects equality and prohibits discrimination on five grounds i.e., religion, race, caste, sex or place of birth. At the same time, this Article provides power to the state to make laws and special provisions for the upliftment of citizen on these grounds. But Article 16 is limited to employment and appointment. This Article also prohibits the discrimination on the grounds which is mentioned in Article 15(1) along with additional two grounds i.e., descent and place of birth. It provides equality in the matters of employments and appointments, and also enables the state to make rules and eligibility criteria for the selections in jobs and the State can also make reservation in government jobs for backward classes, if the government found it needed in a particular area.

Article 14, 15 and 16 along with each other create Constitutional Right to Equality. Article 15 and 16 after being together give effect to Article 14. It means if either Article 15 or Article 16 is being violated then it is certainly the violation of Article 14 but violation of Article 14 does not necessarily the violation of above two. Same when Article 16 is being violated then Article 15 automatically violated but not vice versa. Further, the prohibited grounds of discrimination under Article 16(2) are somewhat wider than those under Article 15(2) because Article 16(2) prohibits discrimination on the additional ground of descent and residence apart from religion, race, caste, sex and place of birth. In the case of Sukhnandan Thakur v. State of Bihar, Patna High Court followed by Sampath v. State of Madras, Madras High Court held that Article 16 guarantee discrimination against employment and appointment only but Article 15 is wider and deals with those cases which do not fall within the purview of Article 16.

Though, earlier, Articles 15(4) and 16(4) were considered exceptions to Articles 15(1) and 16(1) because the plain reading of the provisions give this impression and this was the opinion of the Supreme Court also. But the views were changed in the case of State of Kerala v. N.M. Thomas and the court held that Article 16(4) is not an exception to clause (1) and (2) and then in the case of Indra Sawhney v. Union of India was held that Articles 15(4) and 16(4) flow out of Articles 15(1) and 16(1) respectively, and can never be considered as exceptions to Article 15(1) and Article 16(1). It is a facet of equality of opportunity guaranteed in Article 16(1) and an effective method to realising and implementing it.


Detailed Discussion on Article 16: –

Article 16 is given to only citizens of India. In this regard Constitution of India give following provisions relating to equal opportunity in public employment:

Article 16(1) provides the scope, which states equality of opportunity on employment or appointment in the state job with no discrimination. The assurance in clause (1) will cover the primary appointments, Promotions, Termination of employment, matters of payment, Periodical increments, Leave, Bonus, Pension, Age of retirement and many more and Principle of equal pay for equal work is also covered in this provision. It empowers the state to prescribe the necessary qualifications and selective tests for recruitment for government services. The qualifications may include physical fitness, sense of discipline, moral integrity, loyalty to the state along with mental excellence. If the selection criteria are changed during the selection process, it is violative of article 16 of the constitution.

Equality of opportunity in matters of employment under Article 16(1) means equality between members of same class of employees and not equality between members of separate independent classes. And equal pay for equal work is not expressly mentioned in the provisions of constitution bur the fundamental rights make it somehow enforceable and court can make it enforce when there are unequal scales of pay based on irrational classification.Article 16(2) provides that no discrimination can be done on the grounds of religion, race, caste, sex, descent, place of birth and residence. It is to be noted that there are two additional ground in this article i.e., ‘descent’ and ‘residence’ which are not in the article 15. This is for the confirmation that parochialism and nepotism is eliminated in the matters of appointment in Government Services. The clause 1 of the Article 16 has wider scope than clause 2 because when the discrimination is being occurred on those ground other than mentioned in the clause 2, then it will have to judged and weighted in the light of clause 1.

And the words of Article 16(2), “any employment or office under state” make it clear that Article 16(2) applies only to public employment. It makes no constitutional prohibition against private persons or bodies employing people on grounds prohibited in Article 16(2).

In B. Venkataramana v State of Madras reservation posts in favour of Hindus, Muslims and Christians were held to be violative of Article 16(2). Sexual Harassment at workplace has also been held as gender discrimination and is prohibited by law. As we have noted above under Article 15(3), special provision including reservation for women in employment have been upheld by the court. Sex in this clause also includes transgender and, therefore, they can also not be discriminated in matters of State Employment.

Clause 3 states that the parliament has the power to provide reservation on the basis of residence. We can consider it is as an exception to Article 16(2). There are many reasons for such reservation as there are many areas in many states which are under developed, for bring equality in every section of society it is very important that we bring them on an equal footing. And by this way speedy upliftment and equal opportunity to them can be possible. In exercise of the power conferred by this clause, Parliament in 1957 passed the Public Employment (Requirement as to Residence) Act. This Act repealed all the laws in force prescribing any requirement as to residence within a State or Union territory for any public employment in that state or Union territory.

Clause 4 provides reservation for backward class; it gives power to the state to provide reservation for SCs and STs and those who don’t have adequate representation. In the case of Balaji v. State of Mysore, held that this provision applies only when these two conditions are satisfied;The class of citizens is backward; and

The said class is not adequately represented in the services of the state.

The second test cannot be the sole criterion.

This Article must be interpreted in the light of Article 335 which says that the claims of the SCs and STs shall be taken into consideration and reservation of the backward classes should not be unreasonable.

Article 16(4) must be interpreted in the light of Article 335 which says that the claims of the SCs and STs shall be taken into consideration consistently with the maintenance of efficiency of administration. The reservation of the backward class should not be unreasonable. It should be considered having regard to the employment opportunities of general public. In the case of Devadason v. Union of India the constitutional validity of carry forward rule has been challenged; this rule allows the government to do an end run around that rule by ‘carrying forward’ unfilled reserved post from one year to next. The Supreme Court struck down this rule as unconstitutional on the ground that the power of state cannot be exercised in that manner that it violates equality of opportunity of members other than the backward class. Later in the case of Indra Sawney v. Union of India the court overruled previous case and held that the carry forward rule is valid as long as it did not in a particular year exceed 50 per cent of vacancies. And this 50% limit can only be exceeded in the case of extraordinary situation prevailing in a state.

In Indra Sawney v. Union of India also known as The Mandal Commission case, nine judges bench in this case by majority of 6:3 established 12 principles, we mentioned here three of them, which are important in this issue; (a) 27% reservation for backward classes is approved,      (b) this reservation should be confined to only appointment and not to reservation, and (c) reservation should not exceed 50% but in special circumstances, this can be done. The facts of this case are as;on 1979 Prime Minister Morarji Desai appointed a Backward Classes Commission under Article 340 of the Constitution under the Chairmanship of Sri B.P. Mandal for figure out how many SEBCs in India. On 1980, this commission bring report that there are 3743 castes in India that are SEBCs and recommended that 27% reservation in government job should be given to them. On 1990, PM V.P. Singh approved implementation of 27% reservation.

But the Parliament Realised that the Indra Sawney judgement is not good and bring 77th Amendment Act, 1995 and added Article 16(4-A). This Article enabled to continue reservation in promotion for SCs/STs. Then, the Parliament brought 81st Amendment Act, inserted new clause 4-B, and it ended 50% ceiling on reservation for SCs and STs i.e. Backlog vacancy.

Clause 5 of this Article states any religious institution has any office and for be a member of that office a person has to be of a particular religion then it is not a violation of Article 16(1) and (2). In the effect of this clause, it creates an exception to the Article 16(1) because it reserves the position for a person professing a particular religion and still not violating clause 1 of Article 16. And this is also in support of Article 26 (Right to Freedom of Religion) as according to this Article; All religious denomination and sects, subject to public order, morality and health, are allowed to manage their own affairs in matter of religion, set up institution of their own for charitable or religious purpose, and acquire and manage a property in accordance with law. Therefore, at first, this clause may be seemed as an exception to clause 1 of Article 16 but eventually creates a support of Fundamental Rights mentioned in Part III of Indian Constitution.

Article 16(6) added by the 103rd Amendment Act, 2019 which provides 10% reservation to economically weaker section of citizens in addition to the existing reservation. It is for the reason because people from economically weaker section of the society have largely remained excluded from attending the higher educational institutions and public employments on account of their financial incapacity to compete with the persons who are economically more privileged. Article 46 of the Constitution also, a Directive Principle that urges the government to protect the educational and economic interest of the weaker section of the society. So, it gives an opportunity of upliftment of the citizens belonging to economically weaker section from the upper castes.

Conclusion:-

Article 16 is extremely important in a social context. Apart from providing equal opportunity to all the citizens it also provides a room for social and economic upliftment of backward class of citizens.It brings Right to Equality into the sphere of Public Employment, because at the times when the nation became independent, society was divided in many classes.

Through this article a way was paved for the introduction of reservation in India it was introduces to make backward classes equal to the forward class citizens. When the constitutional makers come to the point of giving reservation, Dr B.R. Ambedkar stated that reservation is compulsorily benefit cause many community and areas are getting discriminated over many years and for establishing a welfare state it is important that we uplift these sections of society. For bringing equality in the society we have to remove disabilities and bring more opportunities for the members of weaker section.

Thus article 16 play two sided i.e. on one hand it provides for equality of opportunity and on another hand, it also provides space for insuring the same. Rarely, any other constitution has gone into such details in order to the question of equality in public services. But still the operation of these provisions has not been in accordance with their sprit, and has been a source of dissatisfaction among large sections of people. Modernisation and industrialisation bring many changes in these old stigmas, expansion in the area of educational opportunities for backward sections of the community will gradually facilitate the realisation of the ultimate goal of equal opportunities in public services.

Questions:

What are the main features of Article 16?
The Constitution harmonies Article 16, it states the Equality of Opportunity in the matters of public employment and it instructs wide commitment among the members of current services. “Equal opportunities” is a broadly used phrase which promotes the idea that everyone within an organization should have an equal chance to apply and be selected for posts, to be trained and promoted and to have their employment terminated equally and fairly.

What is the relation of Article 14, 15 and 16? And how can you say that Article 15 has wider scope than Article 16?
Article 14, 15 and 16 along with each other create Constitutional Right to Equality. Article 15 and 16 after being together give effect to Article 14. It means if either Article 15 or Article 16 is being violated then it is certainly the violation of Article 14 but violation of Article 14 does not necessarily the violation of above two. Same when Article 16 is being violated then Article 15 automatically violated but not vice versa. Further, the prohibited grounds of discrimination under Article 16(2) are somewhat wider than those under Article 15(2) because Article 16(2) prohibits discrimination on the additional ground of descent and residence apart from religion, race, caste, sex and place of birth.

Is reservation necessary? Your Views.
Reservation is necessary in the present generation due to discrimination prevailing in the society whether employment or agriculture practices.

On what grounds Article 16 prohibit discrimination in employment and appointment opportunities?
The prohibited grounds of discrimination under Article 16(2) are somewhat wider than those under Article 15(2) because Article 16(2) prohibits discrimination on the additional ground of descent and residence apart from religion, race, caste, sex and place of birth.

What is the significance of Article 16 of the Indian Constitution?
Article 16 is extremely important in a social context. Apart from providing equal opportunity to all the citizens it also provides a room for social and economic upliftment of backward class of citizens. It brings Right to Equality into the sphere of Public Employment, because at the times when the nation became independent, society was divided in many classes.


References:

[1] Jeff Durham, “Equal Opportunity at Work”, http://www.safeworkers.co.uk/equaloppurtunitieswork.html

(accessed at 5th June 2020).

[2]M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009)

[3] AIR 1974 SC

[4] J.N. Pandey, Constitutional law of India,167(56th ed, 2019)

[5]“What is the difference between Article 15 and Article 16?”, “GKTODAY” https://www.gktoday.in/gk/what-is-the-difference-between-article-15-and-article-16-of-the-indian-con(accessed on 6th June 2020).

[6] AIR 1957 Pat. 617

[7] AIR 1957 Pat. 617 [1] AIR 1967 Mad. 485

[8] M.R. Balaji v. State of Mysore, AIR 1963 SC 694

[9] (1973) 2 SCC 246

[10] 1992 (Supp) 3 SCC 217

[11]Mahendra P. Singh, “Are Article 15(4) and 16(4) Fundamental Right?”,https://www.ebc-india.com/lawyer/articles/94v3a2.htm(accessed on 6th June 2020)

[12] V.N. Shukla’s Constitution of India,112(13th ed., 2019)

[13] “Article 16 of Indian Constitution”, Law Jugaadhttps://www.lawjugaad.com/article-16-of-indian-constitution/  (accessed 7th June 2020)

[14] AIR 1951 SC 229

[15]Vishaka v State of Rajasthan, (1997) 6 SCC 241

[16] V.N. Shukla’s Constitution of India,117, (13th ed., 2019)

[17] V.N. Shukla’s Constitution of India,117, (13th ed., 2019)

[18]AIR 1963 SC 564

[19]  J.N. Pandey, Constitutional Law of India,181(56th ed.)

[20] AIR 1964 SC 179

[21] AIR 1993 SC 477

                                                                  

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