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Essay on Equality of Opportunityin Matters of Public


Employment in India
Arvind Kumar

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Article 16 guarantees equality of opportunity in matters of public


employment. In the first part of the Article, the general rule is laid down
that there shall be equal opportunity for all citizens, wherever they are
living, in matters of employment under the State; thereby the universality
of Indian citizenship is emphasised. In the next section, the general
principle is explained in detail.
According to this, the State is prohibited from showing any discrimination
against any citizen on grounds of religion, caste, race, sex, descent, place
of birth or residence. The next clauses are in the nature of exceptions.
According to the first, residence qualifications may be made necessary in
the case of appointments under the State for particular positions.
But instead of leaving it to individual States to make any rules they like in
this regard, the power is vested in Parliament to prescribe the requirement
as to residence with in the State. This is intended to make the qualifying
test uniform throughout India. The second exception is in favour of
reservation of positions in public employment for any backward class of
citizens.
This is meant to help those who have had very little share so far in public
employment. The determination of a backward community is a matter that
is left to each State Government. The third exception seeks to take out of
the scope of the general principle the management of the affairs of any
religious or denominational institution under any special law providing for
the same.
Although Article 16 guarantees equality of opportunity in matters of public
employment for all citizens and is expected to provide a bulwark against
considerations of caste, community and religion, the result so far has been
far from satisfactory. This has been fully brought out in judicial decisions
as well as reports and findings. The States Reorganisation Commission
observed:
Recruitment to the services is a prolific source of discontent among
linguistic minorities. The main complaint is that a number of States
confine entry to their services to permanent residents of the State,
'permanent residents' being defined in varying ways. These domicile tests,
it is contended have been so devised as to exclude the minority groups
from the services.
"The residence required under these rules varies from three years in
certain cases to fifteen years. These rules are, strictly speaking, in
contravention of "Article 16(1) of the Constitution". They have apparently
been allowed to continue in terms of Article 36(b) pending a general
review of the position."
Abolition of domicile tests for eligibility to State services is sought in a
new Act that has been passed by Parliament seven years after the
inauguration of the Constitution.
The measure, the Public Employment (Requirement as to Residence) Act,
1957, seeks to repeal all existing domiciliary laws in the country which
prescribe a period of residence within a particular State or Union territory
for any public employment there. This is one of the safeguards for
linguistic minorities suggested by the states Reorganisation Commission
in regard to employment in public services. 1
In a landmark decision of the Supreme Court dealing with the now famous
Mandal Commission Report, Indra Sawhney vs. Union of India, Article 16
and particularly its clause 4 were subjected to a detailed examination by
the nine-judges Bench which considered the case and came to the
following conclusions:
1. Article 16(4) is not an exception to Article 16(1). It is an instance of
classification inherent in Art.l6 (l). Article 16(4) is exhaustive of the
subject of reservation in favour of backward classes though it may not be
exhaustive of the very concept of reservation.
2 The expression backward class in 16(4) takes in "Other Backward
Classes" as well.
3. The reservations contemplated, in clause (4) should not exceed 50 per
cent. While 50 per cent shall be the rule, it is necessary not to put out of
consideration extraordinary situations.
4. There is no constitutional bar to classification of backward classes into
backward and more backward classes for the purpose of Art. 16(4).
5. For excluding 'creamy layer' of backward classes an economic criterion
can be adopted as a measure of social advancement.
6. Reservation of appointments or posts under Art. 16(4) is confined to
initial appointment only and cannot extend to promotions.
This provision was amended in 1995 by inserting clause (4-A) which
permitted reservation in the matter of promotion also (Seventy-Seventh
Amendment, 1995)
7. The Government of India and State Governments should within four
months constitute a permanent body to recommend for the determination
of lists of other backward classes. Their advice shall ordinarily be binding
upon the Government.
8. Within four months the Government of India shall specify the bases
applying the relevant and requisite socio-economic criteria to exclude
socially advanced persons (creamy layer) from Other Backward Classes.
9. Identification of backward classes can be done with reference to castes
among and along with, other occupational groups, classes and sections of
people.
But it may not be advisable to provide for reservations in certain areas,
e.g. in technical posts, research and development organisations, in
specialties and super specialties in medicine, engineering and other such
courses in physical sciences and mathematics, in defense services and
connected establishments.
Reservations may also not be advisable in higher posts like those of
professors in education, pilots in airlines, scientists and technicians in
nuclear and space application, etc.
Article 16 has undergone a number of Constitutional Amendments
namely; Constitution (Seventh) Amendment in 1956, Constitution (Seventy
Seventh) Amendment in 1995, Constitution (Eighty First) Amendment in
2000 and latest one is Constitution (Eighty Fifth) Amendment in 2001.
This amendment was made with retrospective effect from 17-06-1995.
The Scheduled Castes and Scheduled Tribes had been enjoying the facility
of reservation in promotion since 1995.
The government had decided to continue the existing policy of reservation
in promotion in the case of scheduled castes and scheduled tribes. To
carry this out it was necessary to amend Article 16 by inserting clause
(4A) by Constitution (Seventy Seventh) Amendment Act, 1995.
Moreover, the Constitution (Eighty First) Amendment Act, 2000 added
clause 4(B) which seeks to end the 50% ceiling on reservation for
Scheduled Castes/Scheduled Tribes and Backward Classes in backlog
vacancies.
The provisions in clause (4) of Article 16 regarding backward classes of
citizens seem to possess a double character. As regards the backward
classes the provision is a corrective one to remedy the imbalance which
has resulted from historical causes, but as regards the persons not
belonging to such classes the provision seems to be a sanction for
discrimination against them.
This is the reason why clause (4) of Article 16 attracts special judicial
interpretation. In this respect the courts insist that the clause must be
read with Article 335 and Article 46 which directs that in taking into
consideration the claim of members of the Scheduled Castes and
Scheduled Tribes and Backward Classes, the State should bear in mind
that the claim should be consistent with the maintenance of efficiency in
administration.
Articles 14, 15 and 16 including 16(4A) must be applied in such a manner
that a balance is struck in the matter of appointments by creating
reasonable opportunities not only for reserved classes but also for the
other members of the community who do not belong to backward classes.
Hardly any other Constitution has gone into such details in regard to the
question of equality in public services. Yet, the operation of these
provisions has not been in accordance with their spirit, and has been a
source of discontent among large sections of people.
Provincialism, communalism and "castism" have been making serious
inroads into the arena of the public services. The real problem that
confronts the State today is how, on the one hand, it can ensure the
building up and maintenance of a public service which is not torn by
dissension and sundered by divisions based on caste and group
community and religion, and which evinces social cohesion and civic
solidarity, and has its foundation in merit.
While, on the other hand, it also provides an opportunity for those who
have been the victims of a petrified social system to come forward and
become equal partners of their more fortunate brethren sharing the
responsibilities of office in a common national Endeavour. It is indeed a
difficult problem and it still awaits a satisfactory solution.
The Central Government has been taking several measures to translate
the ideal embodied in Article 16 into practice. It convenes, on a regular
basis, a conference of State Ministers of Backward Classes with a view to
assessing the measures already taken and suggesting necessary
modifications to existing practices in order to produce better results.
It also advises the State Governments from time to time on specific
actions, such as, the deletion of references to caste from official records
and application forms for admission to educational institutions and
issuing warnings against the practice of untouchability to all Government
servants, etc.
The States are also advised to adopt economic criteria for the
determination of the backwardness of a particular class. But the
Governments in the States which are really concerned with the
implementation of these proposals have yet to change their attitudes.
Most of them are still so much influenced by caste and communal
considerations that it seems unrealistic to expect much from them in the
near future.
Rapid industrialisation and the availability of plenty of new jobs along with
a simultaneous expansion of educational opportunities for the backward
sections of the community as well as a change in the outlook and attitude
of those classes and groups which held a traditional monopoly in public
services will gradually facilitate the realisation of the ultimate goal of
equal opportunity in public services.

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