ARTICLE 16

16. Equality of opportunity in matters of public employment. —

1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

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.

Clauses (1) and (2) of Article 16 lay down the general rule that no citizen can be discriminated against or be ineligible for any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence.

Art. 16 (1) and (2) applies only in respect of employment or office under the State.

3. Nothing in the article shall prevent parliament from making any law prescribed, in regard to a class or classes of employment or appointment to an office ¹[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 favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision fro 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.]

(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.

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 on professing a particular religion or belonging to a particular denomination.

Clauses (3), (4), (4-A), (4-B) and (5) of Art. 16 provide four exceptions to this general rule of equality of opportunity.

Clause (4) enables the State to make provision for the reservation of posts in government jobs in favour of any backward class of citizens which, in the opinion the State, is not adequately represented in the services of the State.

The newly added clause (4-A) (added by 77th Amendment 1995) empowers the State to make any provision for reservation in matters of promotions for SC and STs which, in the opinion of the State are not adequately represented in the services under the State.

The Constitution (81st Amendment) Act, 2000 has added a new clause (4-B) after Clause (4 A) in Art 16 of the Constitution which seeks to end the 50% limit for Scheduled Castes and Scheduled Tribes and other Backward Classes in backlog vacancies which could not be filled up due to the non-availability of eligible candidates these categories in the previous year or years.

Clause (5) saves a law from the operation of clauses (1) & (2) which provides for the incumbent of any office a religious qualification for appointment.

It is to be noted that under Article 16 the guarantee against discrimination is limited to employment’ and appointment under the State.

Article 15, however, is more general and deals with all cases of discrimination which do not fall under Article 16. Article 16 embodies the particular application of general rule of equality laid down in Article 14  with special reference for appointment and employment under the State.

Article 16 guarantees equality of opportunity in matters, of appointment in Stale services. It does not, however, prevent the State from prescribing the necessary qualifications and selective tests for recruitment for Government services. The selective test, however, must not be arbitrary. It must be based on reasonable ground and have nexus between the qualifications and the object that is, post or the nature of the service.

IN PANDURANGARAO V. ANDHRA PRADESH PUBLIC SERVICE COMMISSION, [AIR 1963 SC 268.]

In Pandurangarao v. Andhra Pradesh Public Service Commission, [AIR 1963 SC 268.] the petitioner who was a lawyer in some district of the State, was applicant for the post of District Munsif under the State Judicial Service. He was qualified in every respect, except that he was not at that time practising as an advocate in the Andhra High Court.

The Supreme Court held that the rule which required that only a lawyer practising in the High Court and the notification issued there under was unconstitutional.

There was no reasonable nexus between the qualification and the alleged object of an applicant possessing a knowledge of the local laws which could be acquired by any lawyer practising in any court. For appointment to a particular post a minimum educational qualification can be prescribed.

IN C.B. MUTHAMMA V. UNION OF INDIA, [AIR 1979 SC 1868.]

A provision in service rules requiring a female employee to obtain the permission of the Government in writing before her marriage is solemnised and denying her the right to be promoted on the ground that the candidate was married woman was held to be discriminatory against woman and hence unconstitutional. 

The petitioner was denied promotion to Grade I of the Indian Foreign Service only on this ground.

However, the Court made it clear that it does not mean that the men and women are equal in all occupations and in all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of social sectors of the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern.

MADAN MOHAN SHARMA V. STATE OF RAJASTHAN, [ AIR 2008 SC 1657.]

In Madan Mohan Sharma v. State of Rajasthan, [ AIR 2008 SC 1657.] the appellants challenged the eligibility/qualification during selection process as violative of Article 16 of the Constitution. An advertisement was issued for appointment of the post of teacher Grade III of Secondary Examination. The selection criteria was changed during selection process.

The Court held that once an advertisement is issued the selection process should continue as per advertisement.

The change was done during the pendency of the advertisement in view of subsequent amendment to Ru. 266. This change cannot be made. The amendment cannot be made retrospectively.

EQUAL PAY FOR EQUAL WORK.

In Randhir Singh v. Union of India, [ AIR 1982 SC 879.] it has been held that equal pay for equal work, although not expressly declared to be a fundamental right is clearly a constitutional goal under Articles H, 16 and 39 (c) of the Constitution and can be enforced by the courts in cases of unequal scales of pay based on irrational classification.

This principle has been followed in a number of cases i.e. D.S. Nakara v. Union of India. AIR 1983 SC 130: P.K. Ram Chandra Iyer v. Union of India. AIR 1984 SC 541.] and has virtually become a fundamental right.

Daily Rated Casual Labour v. Union of India, (1988) 1 SCC 122; Jaipal v. State of Haryana, (1988) 3 SCC 354; Dhirendra Chamoli v. state of U.P., (1986) 1 SCC 637; Surindra Singh v. Engineering Chief CPWD. (1986) 1 SCC 639.]

The doctrine of equal pay for  equal work is equally applicable to a temporary or casual employee performing the same duties and functions.

But this principle of equal pay for equal work has no mechanical application in every case of similar work. There can be two scales of pay in the same cadre of persons performing the same or similar work or duties. More often functions of two posts may appear to be the same or similar but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different.

Accordingly, in F.A.I.C. and C.E.S. v. Union of India, (1988) 3 SCC 91.] it was held that different pay scales fixed for stenographers grade I of Central Secretariate and those attached to the heads of subordinate offices on the basis of recommendations of the Third Pay Commission was not violative of Articles 14 and16 of the Constitution.

The duties and responsibilities of stenographers grade I were of much higher nature than that of the stenographers attached to the subordinate offices.

STATE OF HARYANA V. RAJPAL SHARMA AIR 1997 SC 449

Following three Judge Beach decision in Haryana State Adkyapak Sangh v. State of Haryana, AIR 1990 SC 968.] it has been held that the teachers employed in privately managed aided schools in State of Haryana are entitled to the same salary and dearness allowance as is paid to teachers employed in Government schools.

STATE OF HARYANA V. TILAK RAJ AIR 2003 SC 2658.]

It has been held that daily wagers in Haryana Roadways are not entitled to equal pay with regular and permanent employees on the basis of principle of equal pay for equal work.

The daily wagers hold no post. A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. However, the State has to ensure that minimum wages are prescribed for such workers and the same is paid to them.