Article - 16.pptx

● Article - 16 helps us to establish a welfare state. There are a lot of disadvantaged and backward classes is our society - who have faced discrimination since time immemorial and still led down because of social stigmas. Article - 16 also helps us to uplift these disadvantaged sections by giving them Equal Opportunities in Employment and Appointment.

● Article -16 deals with very important question of reservation.

● At the time of Constitutional Assembly Debate on Article - 16 ,
Dr. B.R. Ambedkar referred Reservation as “Compensatory Benefits”.

● Under Article -16, the guarantee against discrimination is limited to employment and appointment under the State.

● This right is available to citizens only.

● Article 15 is more general and deals with all cases of discrimination which do not fall under Article -16.

1. Article - 16 Equality of opportunity in matters of public employment SHASHWATA SAHU

2. Article - 14 Article - 15 Aticle - 16 Relationship between Article - 14, 15 & 16 EQUALITY = (-) + (+)

3. Article -16 ● Article - 16 helps us to establish a welfare state. There are a lot of disadvantaged and backward classes is our society - who have faced discrimination since time immemorial and still led down because of social stigmas. Article - 16 also helps us to uplift these disadvantaged sections by giving them Equal Opportunities in Employment and Appointment. ● Article -16 deals with very important question of reservation. ● At the time of Constitutional Assembly Debate on Article - 16 , Dr. B.R. Ambedkar referred Reservation as “Compensatory Benefits”. ● Under Article -16, the guarantee against discrimination is limited to employment and appointment under the State. ● This right is available to citizens only. ● Article 15 is more general and deals with all cases of discrimination which do not fall under Article -16.

4. Article - 16(1) [Scope] “ There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” 【 Horizontal Reservation 】 ● The guarantee in clause (1) will cover the (a) initial appointments, (b) Promotions, (c) Termination of employment, (d) Matters relating to the salary, periodical increments, leave, gratuity, pension, Age of superannuation etc. ● Principle of equal pay for equal work is also covered in section 16(1). ● State of Kerala vs. N.M. Thomas (1975) - Reservations not an exception to equality.

5. Article - 16(2) [7 Grounds] “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 or, any employment or office under the State.” Example: The recruitment of police or army is based on physical ability. Handicapped people do not get equal opportunities in this case. Note: A HIV AIDS patient cannot be denied in a government job, but if he has an infectious disease (such as corona), he can be kept away from employment until he becomes healthy.

6. Article - 16 (3) Reservation on the basis of Residence “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.” ● Article-16(2) - exception - Parliament can make reservationbon the basis of Residence. ● 2 fold reason - Speedy Development & Equal opportunity to all citizens of a State.

7. Article-16(4) Reservation for Backward classes “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.” 【 Vertical Reservation 】 Backward Classes - SCs & STs Not adequately represented (proportional participation) ● Ashok Kumar Thakur v. UOI (2008) - No creamy layer for SCs & STs ● For Social & Economic prosperity of backward classes of society, State have power to reverse some post for this fever.

8. CASE Laws BALAJI V. STATE OF MYSORE (1963) When Article -16(4) applies ? 2 Conditions - ● Backward Class (Socially + Educationally) ● Adequate representation in Service under State DEVADASAN V. UOI (1964) ● Any reservation above 50 % is invalid. ● Carry Forward Rule is invalid.

9. Indra Sawhney vs UOI (1993) [Mandal Case] 9 Judge Bench Judgement (6:3) 1979 - Former Prime Minister Morarji Desai set up a Commission whose chair person was B.P. Mandal . This Commission had to figure out how many SEBC were present in India. 1980 - Report Submitted - Tere are total 3743 castes which constitute SEBC. Committee recommended - 27% Reservation for Government jobs. 1990 - Prime Minister V.P. Singh implemented this recommendation reserved 27% seats.

10. 1993 - Supreme Court Held that ● Upheld Implementation of separate reservation for other backward classes in central government jobs. (Approved OBC under Article - 16(4)) ● Ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities. ● Total reservation cannot exceed 50%. (Except extra-ordinary circumstances/situations) ● Declared separate reservations for economically poor among forward castes as invalid. ● 27% reservation for SEBC to appointments (not promotion)

11. Article - 16 (4A) Added in 77th Amendment Act, 1995 “Nothing in this article shall prevent the State from making any provision for reservation 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.” Consequential Seniority - added in 85th Amendment Act, 2001. ● Enables to continue reservation in promotion for SCs & STs.

12. Article - 16(4B) Added in 81st Amendment act, 2001 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.” ● Ended 50% celing limits on reservation for SCs & STs ( Backlog Vacancies )

13. Article - 16(5) Reservation in Religious Institution “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.” Religious Institution Office Requirement (for member) Particular Religion (Not violative in Articles - 16(1) or 16(2) Example : WAQF Board

14. Article - 16 (6) Inserted by 103rd Amendment Act, 2019 “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.” ● First time introduces reservations for Economically Weaker Sections (EWS). ● These provisions will be subject to a 10% ceiling, in addition to the existing reservations.

15. Reservation Quota in India ( Present Scenario )

16. What is Catch Up Rule ? ● Suppose there is a general candidate who is senior to a reserved candidate, both being the same Job Level - 1. ● Through reservation in promotion , the reserved candidate gets promoted before the general candidate to Job Level - 2. This makes the reserved candidate gain seniority over the general candidate. ● Now whenever the general candidate is promoted, he would become senior to the already promoted reserved candidate, “ Catching Up ” his seniority back.

17. Union Of India vs Virpal Singh Chauhan ( 1996 ) Decided On, 10 October 1995 2 Judge Bench - Justice S.C Agrawal & Justice B.P. Jeevan Reddy (Author). ● INTRODUCTION OF THE “CATCH-UP RULE”. FACTS :- ◆ A provision was challenged which allowed the extension of reservation to promotions in Railway Service.

18. The apex court held - ● The Court held that Articles - 16(4) & 16(4A) are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned so warranted. ● That the candidates recruited under the reservation quota cannot continue to claim seniority over general category as a matter of right. ● It means a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. His seniority would be governed by the panal position. The Court applied the catch up rule.

19. Ajit Singh Juneja (Ii) vs. State of Punjab (1999) REAFFIRMATION OF “CATCH-UP RULE” ● This is a case similar to Virpal Singh, the Apex Court held that when the senior general candidate is promoted, he will regain his seniority vis-a-vis his junior reserved candidate, promoted to the higher post earlier than the general candidate as a result of reservation policy. ● It was also held that consequential seniority on promotion post is not covered by Article - 16(4A) ● Overruled - Ashok Kumar Gupta v. State of Uttar Pradesh (1997) Jagdish Lal v. State of Haryana (1997) 【 5 Judge Constitution Bench 】

20. Consequential Seniority ● Consequential seniority allows reserved category candidates to retain seniority over general category peers. ● If a reserved category candidate is promoted before a general category candidate because of reservation in promotion, then for subsequent promotion the reserved candidate retains seniority. ● In effect, consequential seniority undoes the ‘catch-up rule’ that allowed general category candidates to catch-up to reserved category candidates.

21. BK PAVITRA V.Union of India -Ii ( Consequential seniority in Karnataka ) 2 Judge Bench - Justice Dr. D.Y. Chandrachud (Author) Justice U.U. Lalit ● On May 10th 2019, the Supreme Court upheld the validity of the 2018 Reservation Act that introduced consequential seniority for SC/STs in Karnataka public employment. ● Justice Chandrachud criticized the predominant merit-based approach to maintaining administrative efficiency. ● Then he introduced a representative definition of efficiency. Citing Amartya Sen, he held that merit should be measured as an action that leads to societal good. ● Hence, he held that a meritorious candidate is not just one who is more talented, but on whose appointment fulfills the constitutional goal of uplifting SC/STs.

22. THANK You ! SHASHWATA SAHU, LL.M. KIIT School of Law, Bhubaneswar