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constitutional_law:part-1:article-16

Equality of Opportunity in Public Employment

Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.

There are four exceptions to this general rule of equality of opportunity in public employment:

  1. Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh and Telanganaa.
  2. The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
  3. A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.
  4. The state is permitted to make a provision for the reservation of upto 10% of appointments or posts in favour of any economically weaker sections of citizens. This reservation of upto 10% would be in addition to the existing reservation. For this purpose, the economically weaker sections would be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage.

Mandal Commission and Aftermath

In 1979, the Morarji Desai Government appointed the Second Backward Classes Commission under the chairmanship of B.P. Mandal, a Member of Parliament, in terms of Article 340 of the Constitution to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement. The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes. They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs). The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs and OBCs) amounts to 50%. It was after ten years in 1990 that the V.P. Singh Government declared reservation of 27% government jobs for the OBCs. Again in 1991, the Narasimha Rao Government introduced two changes:

  1. preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and
  2. reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not covered by any existing schemes of reservation.

In the famous Mandal case (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz,

  1. The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
  2. No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997).
  3. The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
  4. The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.
  5. A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.

With regard to the above rulings of the Supreme Court, the government has taken the following actions:

  1. Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It submitted its report in 1993, which was accepted.
  2. National Commission for Backward Classes was established in 1993 by an act of Parliament. Its mandate was to examine the complaints of under-inclusion, over-inclusion or non-inclusion of any class of citizens in the list of backward classes for the purpose of job reservation. Later, the 102nd Amendment Act of 2018 conferred a constitutional status on the commission and also enlarged its functions. For this purpose, the amendment inserted a new Article 338-B in the constitution.
  3. In order to nullify the ruling with regard to reservation in promotions, the 77th Amendment Act was enacted in 1995. It added a new provision in Article 16 that empowers the State to provide for reservation in promotions of any services under the State in favour of the SCs and STs that are not adequately represented in the state services. Again, the 85th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.
  4. The ruling with regard to backlog vacancies was nullified by the 81st Amendment Act of 2000. It added another new provision in Article 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. Such class of vacancies are not to be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% reservation on total number of vacancies of that year. In brief, it ends the 50% ceiling on reservation in backlog vacancies.
  5. The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act9 of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far exceeding the 50 per cent ceiling.

Reservation for EWSs in Public Employment

The above exception (4) was added by the 103rd Amendment Act of 2019. In order to give effect to this provision, the central government issued an order (in 2019) providing 10% reservation to the Economically Weaker Sections (EWSs) in civil posts and services in the Government of India. The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservation for SCs, STs and OBCs. The eligibility criteria laid down in this regard has already been explained under Article 15.

Further, the scientific and technical posts which satisfy all the following conditions can be exempted from the purview of this reservation:

  1. The posts should be in grades above the lower grade in Group A of the service concerned.
  2. They should be classified as “scientific or technical” in terms of Cabinet Secretariat Order (1961), according to which scientific and technical posts for which qualifications in the natural sciences or exact sciences or applied sciences or in technology are prescribed and the incumbents of which have to use that knowledge in the discharge of their duties.
  3. The posts should be for conducting research or for organizing, guiding and directing research.

Created on 2021/01/31 22:46 by LawPage • Last modified on 2021/01/31 22:46 by LawPage