Right to Equality of Opportunity in matter of Employment or Appointment under Article 16 of Constitutions

1. TABLE OF CONTENTS
Another particular application of general principle of equality or protection clause in Article 14 is
contained in Article 16, which secure to every citizen Equality of Opportunity in matters relating to
public employment.
Article 16 (1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
Here the Question Aries “Qualification laid down by State”
A.) Whether State May Lay Down Qualification or Conditions in regard to requirements of Employment or
Employment [SC said Yes]
1. In Rajya Sabha Secretariat v. Subhash Baloda [AIR 2013 SC 2193]SC said that Article 16 does
not prevent the state from prescribing the requisite qualification and the selection procedure for
the recruitment or appointment. It is for the state to decide. But test or qualification should not
be arbitrary. And There must be some nexus between Rules Prescribed and Posts
2. So In Panduranga Rao v. Andhra Pradesh Public Service Commission [AIR 1963 SC 268]in
this case, Supreme Court Held that Rule which required that only a lawyer practicing in the A.P
High Court had introduced a classification between one class of advocate and the rest and the said
classification was irrational in as much as there was no nexus between the basis of the said classification.
3. In Ganga Ram Moolchandani v. State of Rajasthan [AIR 2001 SC 2616] Relying on
PandurangaRao Judgment the SC struck down the Rajsathan Higher Judicial Service Rules 1969
as ultra vires of Article 14 & 16 because in Higher Judiciary neither Local Languages nor Local
Laws required. So the rules had not based on Intelligible Differentia.
Further Question Arises “Court or Tribunal may Order to Relax”
B.) Whether Court or Tribunal may issue direction to grant relaxation of Eligibility to make
Appointment! [ SC said No]
4. In State of M.P. v. Dharam Bir [AIR (1998)6 SCC 165] and Sate of Gujarat v. Arvind Kumar Tiwari
[AIR 2012 SC 3281] In these both cases the SC held that Court or Tribunal has no power to override the
mandatory provision of the Rules on Sympathy Consideration It is the Parliament to do so U/A 309 of
Constitution or State to do so.
Further Question Arises “Employment – Employee”
C.) Whether the Expression Employment – Employee may mean either Permanent, Regular or Short Term/
Contractual [SC said Yes]
5. In UPSC v. Jamuna Kurup [AIR 2008 SC 2463]The Supreme Court held that if neither in Rules or
Advertisement the Employee classification or benefit provided to them nor differentiated thereafter employer
cannot do so on latter stage so in this circumstances Expression Employment – Employee may mean either
Permanent, Regular or Short Term/ Contractual mean same. But if Rules or Advertisement differentiated then it
mean may be different.
Further Question Arises “Cut-Off date”
D.) Whether Cut-Off Date may be Eligibility of Qualification [ SC said Yes]

2. The Apex court held in various cases like S.P Bhattacharjee v. S.D Mujumdar [AIR 2007 SC 2102], P. Mohanan
Pillai v. State of Kerala [AIR 2007 SC 2840], Rajasthan P.S.C v. Paliwal[AIR 2007 SC 1746] that the Cut- Off date
is Eligibility of Qualification.
Further Question Arises “Filling up post over Post Advertised”
E.) Whether Filling- Up Post Over and Above Those advertised can be done! [Ans. No]
6. The Apex court held in various cases like Prem Singh v. Haryana State Electricity Board [AIR (1996)4 SCC 319]
Raj Rishi Mehra v. State of Punjab [AIR 2013, SC 3580], State of Orissa v. Rajkishore Nanda [ Air 2010 SC
2100] and Mukul Sikia V. State of Assam [AIR 2009 SC 747 Child Development Project Office (CDPO), that Sate
cannot fill the post over and above those advertised.
Further Question Arises “Promotion – Date of Confirmation”
F.) Whether Classification made on the basis of date of confirmation has been Illegal or Arbitrary [SC Said not
illegal and Arbitrary]
7. In U.P Power Corp. Ltd. V. Ayodhya Prasad [AIR 2009 SC] The Apex Court upheld as perfectly reasonable and
rational, categorization of Executive Engineer for promotion to the post of Superintendent Engineers, based on
the marks obtained by them as per entries reckoned in ACRs for 10 Years, the sole criteria for promotion being merit
Further Question Arises “Promotion – Based on Qualification”
G.) Whether Educational Qualification may be as Basis of Classification [SC held that Yes]
8. In State of J&K v. T.N Khosa [AIR 1974 SC 1] The Supreme Court upheld the J&K Engineering (Gazetted Service)
Recruitment Rules 1970, whereunder only graduate Assistant Engineers were eligible for promotion to the post
of Assistant Executive Engineers. The court observed that “ Formal education may not always produce
excellence, but a classification founded on variant educational qualifications is, for purposes of promotion to
the post of an Executive Engineers, to say the least, not unjust on the face to it.
Further Question Arises “Cut off Marks in Written Exam”
H.) Whether The Commission could fix cut off marks in written exam for qualifying in Interview or viva voce test,
[ SC said Yes]
9. In Arunachal Pradesh PSC v. Tage Habung, [ AIR 2013 SC 1601] court held that the commission may fix some
criteria to pass written Exam for qualifying to Interview or Viva Voce
Further Question Arises “Annual Confidential Report” –
I.) Whether Communication of Entries in ACR necessary [SC held yes]
10. In Dev Dutt v. Union of Inda [ AIR 2008 SC 2513], the Apex Court, holding that fairness and
transparency in public administration required that all entries whether, poor, fair, average, good or
very good in ACR, must be communicated, ruled that non-communication of even a single entry
which have the effect of destroying the career of an officer, would be arbitrary and such violative of
Article 16 read with Article 14.
In the instant case, the appellant was denied promotion because he was not communicated “good:
entry in one year during five years under consideration. It denied him the opportunity of making
representation for upgrading of entry to “Very Good” which was a condition for promotion under
the service rule

3. Article 16(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.
Further Question Arises” Permission for Marriage, Conceiving etc.”
J.) Is there any need for female staff to ask to take permission to marry and gets conceived [SC Said held valid
for marriage but not other conditions, like conceiving, mercy of promotion arbitrary retirement etc.]
11. In C.B Muthamma v. U.O.I [AIR 1979 SC 1868] Indian Foreign Service case (IFS) Question was to not marriage
w/o permission and not to be promoted thereafter Rule 18(4) of the IFS (Recruitment Cadre Seniority and
Promotions) Rules 1961, requiring a female employee to obtain the permission of the Government in writing
before marriage and denying her to be promoted on the ground of that married Woman was held to be
discriminatory against woman and hence unconstitutional.
12. In AIR India v. Nargesh Meeraja [AIR 1981 SC 1829] Question was to; AIR Hostages will not get married within
4 years of job and not gets pregnant w/o permission of MD and Retirement on the option of MD The Apex
court held that permission of Marriage is constitutional but others are arbitrariness and violative of Art 14, 15
and 16 hence unconstitutional and struck down.
Article 16(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.
Further Question Arises “Requirement of Residence”
K.) Whether residence is required in state to get job within that state [Article 16(3)] [Ans. Yes]
13. In Narasimha Rao v. State of A.P [AIR 1970 SC 422] Question was whether State Legislature or Parliament
may make laws for residence requirement The Supreme Court held that Parliament has power to make law
regarding residence U/A 16(3) hence struck down the Section 3 of the A.P Public Employment (Requirement as
to Residence) Act 1957 related to Telangana region.
Article 16(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.
Further Question Arises “Carry Forward”
L.) Whether the Unfilled Reserved post may carry Forward for succeeding Year [S.C said No ]
14. T. Devdasan v. U.O.I [AIR 1964 SC 179] “Popularly known as Carry Forward Rule” Question was Whether the
Vacant Seat can be carry forward for further, The SC said ‘No’ hence struck down the SC/ST Carry Forward
Rules. But Govt. of India amended the constitution by 81’St Amendment Act 2000 to overrule the said order and
inserted clause 16(4B)
16(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.]
Further Question Arises “ST/SC need Years of Relaxation”
M.) Question was whether ST/SC Staff to be given 2 more years to get pass the exam regarding promotion, The
SC held that yes they shall be given

4. 15. State of Kerala v. N.M Thomas [AIR 1976 SC 490] in this case an important question arose before 7 Member
Bench of SC in regard to the content and reach of 16(1), (2), (4) and interrelation of Articles 14, 15 and 16.
Matter: In this case the Kerla Govt. framed Rules regulating promotion from the cadre of division clerks to the
higher cadre of upper division clerks, which was made dependent on the basis of passing of a departmental test
within two years of the introduction of this test. Further not to pass the test within two years disentitled the
promotion in future however two more year relaxation was given to SC/ST the SC held this rules valid.
16. In Indra Sawhbey v. Union of India [AIR 1993 Sc. 477]Popularly Known as Mandal Case
The Scope and extent of the Article 16(4) has been examined thoroughly by the SC by 9 Judge Constitutional
Bench by 6:3 the majority Opinion are
(1). Backward class of citizen in Article 16(4) can be identified on the basis of Caste and not only on economic basis.
(2). Article 16(4) is not an exception to Article 16(1). It is an instance of classification. Reservation can be made
under Article 16(1), (3). Backward Classes in Article 16(4) are not similar as socially and educationally backward in
Article 15(4). (4). Creamy layer must be excluded from backward classes (5). Article 16(4) permits classification of
Backward Classes into Backward and more Backward Classes (6). A Backward Class of citizens cannot be identified
only and exclusively with reference to economic criteria (7). Reservation shall not exceed 50% (8). Reservation can
be made by ‘Executive Order’ (9). No Reservation on Promotion, (10).Permanent Statutory Body to examine
complaints of over-inclusion/under- inclusion, (12). Disputes regarding new criteria can be raised only in the
Supreme Court
But Govt. of India amended the constitution by 77’St Amendment Act 1995 to overrule the said order which
prevent from promotion on Reservation Basis and inserted clause 16(4A)
16 (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.]
N.) Equal pay for Equal Work
O.) Question Arose Whether Equal Pay for Equal Work is Fundamental Right or May be enforced by Court [SC
said yes]
17. In Randhir Singh v. Union of India [AIR 1982 S.C 879] In this case the SC said that though Equal Pay for Equal
Work was enshrined in Art.39 (d) but it is constitutional goal to enshrine it into Art. 14, 16 and 39(d) so it can be
enforced by courts in case of unequal scale of pay based on irrational classification and this principal has been
followed in number of case like “Daily Rated Casual Labour v. U.O.I [AIR 1988, SC 122] Jaipal v. State of
Haryana [(1988)3SCC 354; Dhirendra Chamoli v. State of U.P [(1986) SCC637], Surendra Singh v. Engineer in
Chief CPWD [(1986) S.C 639
P.) Question arose whether Daily Wagers will be paid Equal pay for Equal Work [Ans. No]
18. In State of Haryana v. Tilak Raj [AIR 2003 SC 2658] SC held that daily wagers in Haryana Roadways are not
entitled for Equal pay for Equal work since they construe no post
Q.) Whether Govt. can design different pay Scale for same Cadre post having regard to different qualification
[Ans. Yes]
R.) In Mewa Ram v. AIMS [AIR 1989 SC 1256] held that above statement Question arises whether State can deny
promotion on basis for deputation of staff after centre Govt. Approval [Ans. No]
19. In FCI v. Ashis Kumar Ganguly [AIR 2009 SC 2582] Held the above Answer
16(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.