Article 16: Equality of opportunity in matters of public employment.
16(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
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.
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. [Add some provision by 7th Amendment act, 1956]
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.
16(4)(A): 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. [77th Amendment act, 1995 and 85th Amendment act, 2001]
16(4)(B): 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 percent. reservation on total number of vacancies of that year. [81st Amendment act, 2000]
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.
16(6): 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 percent. of the posts in each category. [103rd Amendment act, 2019]
-Text in Constitution
Explanation of Article 16
After providing parity in public places in Article 15, a provision has been made in Article 16 to provide equality to all in government public service jobs.
It only guarantees equality on government jobs coming under the state such as UPSC, SSC, Bank recruitment, PCS of states etc.
Who comes under the state is mentioned in Article 12. A citizen cannot expect equality from a private institution.
Yes, if the private company follows equality due to its moral duty, it is a very good thing for the country. If they do not comply, then the person cannot demand its fundamental right against it.
Only the citizen will get equity in the appointment and employment, no foreigner or refugee will get it. That is why employment is less available to refugees in most of the country.
In order not to discriminate, the origin and residence of two more bases have been included in Article 16 as compared to Article 15. However, such grounds as language, the physical and intellectual ability have not been included, which may lead to discrimination on these grounds.
Example: The papers for Gujarat or Tamil Nadu Public Service Examination are drawn only in Gujarati or Tamil language, so those who do not have knowledge of this language will not be able to give the exam. That is, there is no opportunity in employment if the language is not known.
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.
Like we saw in 16(2) the state cannot make any distinction on the basis of residence. But Article 16(3) was instituted as an exemption.
This part of the article written as an exception that gives power to the Parliament. If parliament wants, they can make a provision that only residents of that state and UT are eligible for their public service employment.
Meaning that if you have to participate in the public employment of Punjab, then you must have a Domicile Certificate of Punjab.
This does not mean that you will have to be born in Punjab, you can take a domicile certificate even after staying there for a few years(As per state law).
Parliament made law Public Employment (Residence Requirements) Act, 1957 by using their power. In which the residence was made necessary for public employment for states like Andhra Pradesh, Manipur, Tripura, Himachal Pradesh.
But later it was repealed in 1974 for reasons such as lack of candidates and reorganization of states. (This law is currently applicable only with a special provision in Article 371D for Andhra Pradesh and Telangana).
This article talks about reservations in recruitment and promotion of government jobs. Which gives equality to those who are socially and economically backward.
The term “any backward class of citizens” means Scheduled Castes(SC), Scheduled Castes(ST), and Other Backward Communities(OBC).
To whom will the government give reservation is a question?
In which the constitution states that the government will have to find such castes whose representation in government jobs is less, meaning fewer people are in government jobs as per the population of that caste.
The government formed Kaka Kalelkar (Backward Classes Commission), Mandal Commission, etc. to find such castes.
16(4)(A) gave reservation in the job, but there should be such awareness in those backward communities to come and fill the form and pass the examination, but it was seen that every year some reserved seats remain vacant.
To fill this empty seat Article 16(4)(B) was added by the 81st Constitutional amendment. In which provision made that the remaining reserve seat will be carried forward to next year.
Carry Forward can be done for three years. After that, the seats will be lapse.
You will have the question that due to this carry forward, the reservation will not be more than 50% next year?
Yes, it will happen, but in such cases it is exempt. Even if it is more than 50% you will have to add the seats. This thing is called fulfilling Back Lock.
Example: UPSC has 1000 seats in 2020, out of which 75 seats have to be given to the ST community, but only 50 ST candidates are selected, the remaining 25 seats will be added in the year 2021.
Suppose in 2021 the total seats are 900, in which 70 seat has to be given to ST candidates, then in the year 2021, there will be 70 + 25 = 95 seats for ST.
However, the Supreme Court has set certain limits in Article 16(4)-
- The maximum reservation limit will be 50% (quantitative limit)
- Theory of creamy layer (qualitative exclusion)
- Backwardness and inadequacy of representation, place of inherent powers, imperative to use (backwardness and under-representation in the job)
- The need for overall administrative efficiency which is in compliance with Article 335. (Not compromise on ability while selecting reserve candidates)
In this, the religious or communal institution is allowed to appoint to any post in their religion or sect.
In simple words, the priests in the temple can only be Hindu and in Majid, Maulana can only be from the religion of Islam, so the people of that religion have been exempted from making rules or reservations.
The state cannot force to reserve such religious posts for the backward community. But you will find some examples where Muslims in the temple and Hindus in Majid are appointed at the top places, which is the beauty of our India.
Article 16(5) is in the form of an exception that puts up the ‘freedom to manage religious affairs’ of Article 26 against the ‘equality of opportunity in the matter of public employment’ of Article 16. (Article 26> Article 16)
The reservation was given to the community on which oppression, exploitation, discrimination took place. Due to these, they remain socially and educationally backward.
But not having passed through all these, there are some families among the highly regarded castes whose economic condition is very bad, who need the help of the government.
For those, a provision of 10% reservation has been made in Article 16(6) for people belonging to economically backward upper castes.
In this reservation, a model act has been made by Parliament and the states are allowed to change their way. In this act criteria are given for the economically weaker section(EWS).