Article 16 of Indian Constitution  

Article 16 of Indian Constitution is another instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16, Das Jsaid:

Article 14 guarantees the general right of equality; Arts. 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Art. 15 is more general than Article 16 of Indian Constitution, the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that Art. 15 does not mention ’descent’ as one of the prohibited grounds of discrimination, whereas Art. 16 does.

This relationship has been further emphasised in Thomas and Indra Sawhney v. union of India discussed below and above under Article 15(4).

Article 16 of Indian Constitution clause 1 {16(1)}

“Article 16 of Indian Constitution’’ Clause (1) lays down the general rule that there shall be equal opportunity for citizens in matters relating to ”employment” or ”appointment to any office” under the State. It gives the right only for equal opportunity, i.e. the right to be considered for employment or appointment. It does not give the right to be employed are appointed to any office under the State. The rule applies only in respect of Employment or offices which are held under the State, ie. in respect of persons holding office as subordinate to the State. What is guaranteed is the equality of Opportunity. The clause accordingly, does not prevent the State from laying down the requisite qualifications for recruitment for government services, and it is open lo the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like all other employers, the government is also entitled to pick and choose from among a large number of candidates offering themselves for employment. long as an applicant, along with others, has been given his chance, it cannot be said that he did not have an equal opportunity along with others, who may have been selected in preference to him. While Article 16 of Indian Constitution clause (1) does not preclude an administrative authority from making a selection from numerous candidates offering themselves for employment, the selection test must not be arbitrary. If the selection test is not based upon some reasonable principle which has a nexus with efficient performance of the duties and obligations of the particular office, the rule of equal opportunity for employment under the State would be violated. The qualifications posited may, besides mental excellence, include physical fitness, sense of discipline, moral integrity and loyalty to the State. Technical qualifications and standards may be prescribed where they are necessary.

The expression ”matters relating to employment or appointment” must include all matters in relation to employment both prior and subsequent to the employment which are incidental to the employment and form part of the terms and conditions of such employment. Thus, the guarantee in clause (1) will cover: 1) initial appointments; 2) promotions; 3) termination of employment; and 4) matters relating to salary, periodical increments, leave, gratuity, pension, the age of superannuation, etc. Logically and going by numerous precedents determination of seniority must also fall within it. But a three-judge Bench of the court has held that ”Seniority is not a fundamental right”. Principle of equal pay for equal work is also covered by equality of opportunity in Article 16 of Indian Constitution.” The same fundamental principle of equality of opportunity should apply in all these matters between persons who are either seeking the same employment, or have obtained the same employment. ”Appointment” in clause (1) will include termination of removal from service. Arbitrary invocation of enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and Article 16 of Indian Constitution

Article 16 of Indian Constitution CLAUSE (1) is confined to ”employment” by the State and has reference to employment in service rather than as contractors. Accordingly, a contract for the supply of goods is not a contract of employment in the sense in which that word has been used in the article. Independent contractors cannot call themselves employees of the State and cannot claim the right conferred under this clause.

The requirement of reasonableness discussed under the expanding horizons of equality has been applied to Article 16 of Indian Constitution CLAUSE (1) also and unreasonable actions in rela~ tion to service matters have been invalidated.

Article 16 of Indian Constitution Clause 2 (article 16(2))

 

Article 16 of Indian Constitution Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated against each other in respect of any appointment or office under the State. The scope of clause (1) of Article 16 is wider than the scope of clause (2′ because discrimination on grounds other than those mentioned in clause (7-) 0f Article 16 has to be weighed and judged in the light of the’ general principles laid down in clause (1). The prohibited grounds of discrimination are religion’ race, caste, sex, descent, place of birth, residence, or any of them. The words, ”any employment or office under the State” make it clear that Article 16 of Indian Constitution clause (2) also applie. only to public employment. There is no constitutional Prohibition against Private persons or bodies employing people on grounds prohibited in Article 16 of Indian constitution (2). ‘

In Gazula Dasamtha Rama Rao V. State of AR , the Supreme Court invalidated Section 6(1), Madras Hereditary Village Offices Act, 1895 which had required the Collector to select persons from among the last holders of offices because it amounted to discrimination on the ground of descent. The office of the hereditary village munsif is an office under the State because the appointment is made by the Collector, emoluments are granted by the State, and the Collector has the power to remove, suspend, or dismiss him. In B. Venkatammana v. State of Madras“, reservation of posts in favour of Hindus, Muslims and Christians was held to be violative of Article 16 of Indian Constitution clause (2). Section 3, Andhra Pradesh Employment (Requirement as to Residence) Act, 1957 gave power to make rules in respect of certain classes of employment in certain areas. The rules prescribed the requirement of residence for appointment to certain posts within the Telangana area of the State. In A.V. S. Narasimha R110 v. State of AR, the petitioners, who were non-domicile persons appointed to the posts reserved for domiciles of Telangana and were by an order relieved from their posts and employed in other regions of the State, questioned the validity of the Act. The Supreme Court held that Section 3 of the Act insofar as it related to Telangana and the rules made thereunder (R. 3) were ultra Vires the Constitution. A circular of the State of Rajasthan assigning grace marks for the employment of primary school teachers on the ground of residence in the district and rural area was also invalidated. A district wise preparation of list of §elected teachers in Uttar Pradesh was also invalidated by the court. Difference }n the pay scales and promotional avenues between male and female employees 18 also prohibited by this provision. Provision for appointment of sons, (laughters or widow of a deceased employee on compassionate grounds is not violative 0f Article 16 of Indian Constitution clause (2) but its extension to near relatives is invalid under this provision.” In View of history of Sikkim and its special annexation to the Union of India, a provision for the appointment of the locals to services in that state has not been found inconsistent with Article 16 of Indian Constitution clause 2 Sexual harassment at workplace has also eld as gender discrimination? As we have noted above under Article 15(3), Special  provisions including reservations for  women in employment have been upheld by the court

Article 16 of Indian Constitution clause -3

Article 16 of Indian Constitution clause 13 Under this clause, Parliament is competent to regulate the extent to which it would be permissible for a State to depart from the law laid down in clause 3 . It is Parliament alone which can a prescribe such conditions, and that too in regard to State and not the Union appointments. In exercise of the power conferred by this clause, Parliament iii-3&7 passed the Public Employment (Requirement as to Residence) Act.” The 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. Whatever exceptions the Act initially made have also expired.

 

Source:-

V.N Shukhla’s Constitution of India 12th Edition

Mahendra Pal Singh

Eastern Book Company