introduction of the article 16.
Article 16 Of The constitution
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.
(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.
(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.
[(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.]
[(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 (4-A) as a separate class of vacancies to be filled up in any succeed-ing 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 person professing a particular religion or belonging to a lar denomination. particu-
(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 per cent of the posts in each category.)
Article 16 is another instance of the application of the general rule of equality before the law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) in respect of the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16, Das J said:
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 Art. 16, the latter being confined to matters relating to employment or appoint-ment 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 the Thomas and Mandal Commission cases discussed below and above under Article 15(4).
CLAUSE (1)
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 to equal opportunity, ie. the right to be considered for employ-ment or appointment. It does not give the right to be employed or appointed to any office under the State. The rule applies only in respect of employments or offices which are held under the State, i.e. 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 to 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 amongst a large number of candidates offering themselves for employ-ment. So 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 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 any reasonable principle which has a nexus with efficient performance of the duties and obligations of the particular office, the rule of equal opportunity for employ. ment under the State would be violated. The qualifications posited may, besides men-tal excellence, include physical fitness, sense of discipline, moral integrity and loyalty standards may be prescribed where necessary. 85
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;*8 and 4) matters relating to salary, periodical increments, leave, gratuity, pension, 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".9% Principle of equal pay for equal work is also covered by equality of opportunity in Article 16(1). 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 or 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 16(1).92
It is not obligatory to make recruitment rules before a service is constituted or a post is created or filled up. In the absence of rules, qualifications for a post may be laid down in the executive order creating the service or post and filling up according to those qualifications. But there is no rule of equality between members of separate and independent classes of service. Thus, the road-side station masters and guards belong to two separate and distinct classes of service between whom there is no scope for equality or inequality of opportunity in matters of promotion. Article 16(1), accordingly, is not infringed by rules enabling guards to be promoted faster than road-side station masters to the posts of station masters. Likewise, Article 16(1) has no application to persons occupying different grades in the same service. Accordingly, if Income Tax Officers of Class 1 are eligible for appointment as Assistant Commissioners, but Income Tax Officers of Class II are not, there can be no question of denial of equality of opportunity. Similarly, irregular, ad hoc or temporary appointees cannot claim equality with regular and permanent appointees. So also classification between deputationists and departmental candidates is justified. But if different standards of pro-motion are laid down in relation to the same class of Income Tax Officers, Article 16 is violated. Government action has been held invalid where the seniority of the person was disregarded. While promoting persons of one grade or class to the higher grade, no discrimination can be made between those who came to the existing grade through promotion and those who came through direct recruitment. Right to be considered for promotion is recognised as a fundamental right under this article. There is nothing wrong in providing different grades for persons who have higher educational qualifications. Distinction may be drawn between the degree, diploma and certificate holders. The State may also decide not to observe such a distribution. There is no denial of equality if the service rules permit premature retirement of government servants." So also equality of opportunity in matters of employment does not prohibit the prescription of compulsory retirement. 12 It is one thing to lay down appropriate qualifications and requisite experience for a particular job, but complete neglect without valid reason, of the requisite experience, on the sole ground of drawing a particular amount of salary on a particular date cannot be countenanced.13
There can be no absolutes when claims to justice on complaints of inequality are considered. The goal of Articles 14 and 16 is limited to equality among comparables, a necessary implication of which is permissibility of reasonable classification, having nexus with the object to be achieved. So, if two services started and continued dissimilarly, though they apparently discharged similar duties, they are not comparable services so as to furnish a basis for the claim to equality. But if in the same service there are two sources of recruitment to the same posts, a classification based solely on the source of recruitment is not permissible. However, even among the members of the same service, a classification based otherwise than on mere source of recruitment such as educational qualification, may at times be permissible. Though a line can be drawn when among members of the same service a classification is sought to be made between those who had been recruited on the basis of results of a competitive examination and those who were appointed to the non-cadre posts outside the rules and whose tenure is, therefore, precarious, cannot claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of the service
Important questions arose in State of Kerala v. N.M. Thomas (Thomas) regarding the relationship of Articles 14. 15 and 16. The point at issue was whether Article 16(1) protected exemption of the LDCs belonging to the SCs and STs from passing the special tests for promotion as the UDCs and the filling up of 34 out of 51 vacancies of the UDCs by promoting the LDCs from these groups in preference to those who had passed those tests. The question was whether this arrangement could be upheld under Article 16(1) or Article 16(4). The majority of five Judges, Ray CJ, Mathew, Beg, Krishna lyer and Fazal Ali JJ, held that these arrangements did not fall under Article 16(4) but were valid under Article 16(1). The majority was of the view that Article 16(1) permitted reasonable classification and did not forbid the State from rendering social justice to the back. ward classes. Its opinion rested on the premise that the impugned exemption had been granted only for a temporary period.
Ray CJ stated categorically that Articles 14, 15 and 16 form part of a string of constitutionally guaranteed rights supplementing each other. Article 16 was explained as an incident of guarantee of equality contained in Article 14 and, therefore, permit-ted reasonable classification of the employees in matters relating to employment or appointment. Article 16(1) using the expression "equality" made it relatable to all mat ters of employment, and permitted classification on the basis of object and purpose of law or State action except classification involving the discrimination prohibited by Article 16(2); Article 16(4) indicated one of the methods of achieving equality embodied in Article 16(1), and explained that classification on the basis of backwardness did not fall within the prohibition of Article 16(2). In other words, a rule giving preference to an unrepresented or underrepresented backward community was valid and would not contravene Articles 14, 16(1) and 16(2); Article 16(4) removed any doubt in this respect. Mathew J emphasised that the guarantee of equality before the law is not merely formal equality, but also requires effective material equality, and that Article 16(4) was not an exception to Article 16(1). Krishna lyer J agreed with the Chief Justice, stating very clearly that Article 16(4) is an illustration of constitutionally sanctified classification and was put in the Constitution to make matters clear beyond doubt.
Khanna and Gupta JJ, in their dissent, followed M.R. Balaji v. State of Mysore and argued that carving out classes of citizens for favoured treatment in matters of public employment, except in cases for which there is an express provision in clause (4) of Article 16, would in the very nature of things run counter to the principle of equality of opportunity enshrined in clause (1) of Article 16. They adhered to the view that reservation of seats for backward classes should not be at the cost of efficiency. It was pointed out that the exemption, though only for a limited period, would not lend constitutional-ity to the impugned rules.
The most outstanding contribution of the Thomas case" was recognition of the distinction between formal and substantive equality and emphasis on the latter. Accordingly a requirement of positive steps was read in Article 16(1) and its clause (4) was seen as complementary to it rather than an exception as was thought until then. Therefore, some of the Judges deprecated the limitation of any percentage of reservation.
Five years later in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (ABSK Sangh), Krishna Iver J, reiterated that Article 16(4) imparts to the seemingly static equality embedded in Article 16(1) a dynamic quality by importing equalisation strategies geared towards the eventual achievement of equality. Before the decision in Thomas, Article 16(4) was construed as an exception to Article 16(1) and this construction was an accepted norm for working out the extent and scope of Article 16(1). It was in the majority opinion (including Krishna lyer J) in Thomas that Article 16(4) was construed as an aspect of Article 16(1) and given altogether a dynamic interpretation. Following the majority opinion in Thomas, Chinnappa Reddy J, emphasized that Article 16(4) is not in the nature of an exception to Article 16(1); it is a facet of Article 16(1) fostering and furthering the idea of equality of opportunity with special reference to underprivileged and deprived class of citizens.19
In ABSK Sangh, Krishna lyer J, emphasised, as he did in the Thomas case, upon the categorisation of the SCs and STs as a class on the basis of which the classification could be justified as just and reasonable within the meaning of Articles 15(1) and 16(1) because these classes stand on a substantially different footing from the rest of the Indian community in our Constitution. Other weaker sections in this context, in his opinion, would mean not other "backward class" but dismally depressed categories comparable economically and educationally to the SCs and STs. In other words, in his opinion, classification of the SCs and STs as a special category could be justified within the meaning of Articles 15(1) and 16(1), whereas classification of weaker sections on the basis of backward classes may have to conform to the requirements of Articles 15(4) and 16(4). Chinnappa Reddy J. did not make any such distinction between the two classes. The Mandal Commission case" approves the classification of backward classes into backward and more backward but disapproves that the backward classes must be so situated as the SCs and STs.
The Thomas case view on the relationship between clauses (1) and (4) of Article 16 that the latter is not an exception to but complementary of the former has been con-firmed in the Mandal Commission case. But the Mandal Commission case has also held that clause (4) exhausts all special provisions for the backward classes and no favour can be granted to them under clause (1). However, the court has admitted that clause (1) permits classification and special provisions can be made under it for handicapped or disadvantaged groups other than the backward classes.
Article 16(1) is confined to "employment" by the State and has reference to employ. ment 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 are not employees of the State and cannot claim the rights conferred under this clause.25
The requirement of reasonableness discussed under the expanding horizons of equal. ity has been applied to Article 16(1) also and unreasonable actions in relation to service matters have been invalidated. 26
CLAUSE (2)
Clause (2) lays down specific grounds on the basis of which citizens are not to be dis-criminated against one another 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 dis crimination on grounds other than those mentioned in clause (2) of Article 16 has to be weighed and judged in the light of the general principles laid down in clause (1).27 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(2) also applies only to public employment. There is no constitutional prohibition against private persons or bodies employing people on grounds prohibited in Article 16(2).
In Gazula Dasaratha Rama Rao v. State of A.P.28, 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. Venkataramana v. State of Madras, reservation of posts in favour of Hindus, Muslims and Christians was held to be violative of Article 16(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 Rao v. State of A.P.3, the petition-ers, who were non-domiciled 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 a list of selected teachers in Uttar Pradesh was also invalidated by the court. Difference in the pay scales and promotional avenues between male and female employees is also prohibited by this provision." Provision for appointment of sons, daughters or widow of a deceased employee on compassionate grounds is not violative of Article 16(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(2)." Sexual harassment at workplace has also been held as gender discrimination and is prohibited by law. As we have noted above under Article 15(3), special provisions including reservations for women in employment have been upheld by the court. Sex in this clause also includes transgenders and, therefore, they can also not be discriminated in matters of State employment.
CLAUSE (3)
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 (2). It is Parliament alone which can 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 in 1957 passed the Public Employment (Requirement as to Residence) Act.39 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.
CLAUSE (4)
This clause expressly provides 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 rep-resented in the services under the State. The power conferred on the State can only be exercised in favour of a backward class and, therefore, whether a particular class of citizens is backward, is an objective factor to be determined by the State. While the State has to ascertain whether a particular class of citizens is backward or not, having regard to acceptable criteria, it does not have the final say in the matter. State's determination is justiciable and may be challenged if it is based on irrelevant considerations. These matters have been discussed in detail under Article 15(4). Clause (4) first came for consideration in T. Devadasan v. Union of India
(Devadasan), where the court was called upon to pronounce upon the constitutionality of the "carry forward rule" framed by the Central Government to regulate appointment of persons belonging to backward classes in public services. By a resolution of the year 1950, the government had indicated its intention to reserve 12.5 per cent and 5 per cent of the total available vacancies in any one year respectively for the SCs and STs Supplementary instructions issued by the government in 1952 provided that if in any particular year the number of suitable candidates available was less than the number of reserved posts, the posts so in excess shall be treated as unreserved for that particular year but in the next year the number of posts which would have been otherwise reserved for such candidates in the normal course would be augmented by the number which had been converted into non-reserved posts in the preceding year. This process of carrying over which was to operate for one year at a time under the 1952 instructions was directed to operate for two years at a time by an amendment
in 1955.
The court by a majority of four to one invalidated not the rule of carry forward as such but the rule as amended in 1955 on the ground that the power vested in the State under Article 16(4) could not be so exercised as to deny reasonable equality of opportunity in matters of public employment to members of classes other than back-ward classes. The object of that provision, the majority thought, was to ensure that the backwardness of backward classes did not unduly handicap their members from securing public employment and the State, when it made reservations in favour of back-ward classes did in effect provide to the backward classes an opportunity equal to other classes, in matters of public employment. From this premise, it went further to hold that where the reservation was so excessive in its character as to deny in practice a reasonable opportunity to other classes it was a fraud upon the Constitution. Since in the instant case, the number of vacancies reserved by virtue of the "carry forward rule" could go up to 54 per cent of the total vacancies, which was not below the 50 per cent limit laid down in Balaji, the rule was declared invalid.
Devadasan was overruled in the Mandal Commission. The carry forward rule is valid so long as the actual reservation in a particular year does not exceed 50 per cent of the vacancies. The 50 per cent limit has to be worked out on the basis of the total vacancies in a particular year and not on the basis of the total strength in a cadre or service. But barring extraordinary situations, the 50 per cent limit on reservations has to be strictly observed. This position has been changed by inclusion of clause (4-B) in Article 16 by the Constitution (81st Amendment) Act, 2000.
Following the pre-amendment position the court has held that "if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post The impact of the amendment on this point is yet to be seen because primarily the court decisions in this regard rested on the argument that not more than 50 per cent reservations could be made at a time. Again, in P&T Scheduled Caste/Tribe Employees' Welfare Assn. v. Union of India, the court observed that Article 16(4) "is only an ena-bling clause" and "no writ can be issued ordinarily compelling the government to make reservation" under it. But in fact the court in that case directed the Central Government to confer the same advantages on the SC and ST employees in the P&T department as enjoyed by the SCs and STs employees in the other departments of the government because the less advantageous treatment of the P&T employees violated "the equality clause of the Constitution". The court took a similar view in Jagdish Negi v. State of UPA, where it directed the State to make reservations in all educational institutions.
The condition precedent for the exercise of the powers conferred by Article 16(4) is that the States ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In Southern Railway v. Rangachari (Rangachari), the Supreme Court held that the power of reservation which is conferred on the State could be exercised by it not only for providing for reservation in appointments but also for providing reservation in selection posts as well as promotional posts. Rangachari was overruled in the Mandal Commission case50 and the court held that reservations could be made only in respect of direct recruitment at any level but not in respect of promotions. However, short of reservations any special provisions could be made to facilitate promotion of members of backward classes in the services. Reservation of vacancies of teaching staff in registered private schools for the SCs and STs has also been upheld under Article 16(4).T
Unlike in State of Kerala v. N.M. Thomas (Thomas) in which the court read benefits other than reservation of seats in clause (1), the Mandal Commission case has made clause (4) exhaustive of all benefits and concessions that could be given to backward classes in matters of employment such as age relaxation, fee concession, etc.
Reservations under Article 16(4) may be made in the exercise of executive power without any legislative support. They can also be made by legislation. But the legisla. tion must satisfy other constitutional requirements. In E.V. Chinnaiah v. State of A.P the court invalidated an Andhra Pradesh legislation dividing the SCs into four classes for the purpose of Article 16(4) for the reason that it tinkered with the list of the SCs made by the President which could be changed only by Parliament and also such divi. sion could not be justified under Article 14.56 The court did not say anything about the "creamy layer" among the SCs. But in Ashoka Kumar Thakur v. Union of India, the court held that the creamy layer concept did not apply to the SCs and STs.
Again, in State of Bihar v. Bal Mukund Sah, the court held that Article 16(4) is an enabling provision within which even judicial services could be brought. But while providing reservations in judicial services under this provision the requirement of maintenance of efficiency of administration under Article 335 must be taken into account. Also while making reservations in the subordinate judicial services the High Court must be consulted. In case of reservation in higher judiciary at the subordinate or dis-trict level the State Governments may also fill the reserved seats for backward classes including the SCs and STs by promotion from lower judiciary, if the State law and the High Court rules so provide, 59
As we have already noted, initially in the Thomas case and finally in the Mandal Commission case, the court held that Article 16(4) is not an exception to Article 16(1) but rather is a facet of equality of opportunity in matters of employment. It has reaf-firmed that position in M. Nagaraj v. Union of India (Nagaraj) as well as in Jaishri Laxmanrao Patil v. State of Maharashtra in which the court unanimously found Marathas in excess of the 50 per cent limit in educational institutions as well as in State jobs.
Reserved category candidates who qualify against general category positions are adjusted against those positions making reserved positions available to other reserved category candidates. A reserved category candidate who has qualified in the general category can retain his reserved category position to gain a better job choice. 64 A reserved category candidate who has claimed age relaxation will be treated as reserved category candidate only.
CLAUSE (4-a)
This clause was inserted by the Constitution (77th Amendment) Act, 1995 to overcome the decision in the Mandal Commission case that no reservation in promotions could be made under clause (4) This clause does not affect that decision as regards OBCs but makes it inapplicable to the SCs and STs. Justifying reservations for the SCs and STs candidates in promotions, the court had at one point held that even their seniority acquired by promotion over the general class candidates could not be affected by sub-sequent promotion of the general class candidates. However, earlier Union of India Virpal Singh Chauhan (Chauhan) and later Ajit Singh (2) v. State of Punjab (Ajit Singh), held that reserved category promotees could not count their seniority in the promoted category from the date of their continuous officiating in the promoted post vis-Ã -vis the general candidates who were senior to them in lower category and who were later promoted. A senior general candidate at the lower level, if he reaches the pro-motional level later but before the further promotion of the reserved category candidate, will be treated as senior at the promotional level to the reserved category candidate even if the reserved category candidate was promoted to that level earlier. Incidentally, the court also remarked that clauses (4) and (4-A) do not grant a fundamental right. They are enabling provisions which must be balanced against the right to equality guaranteed in clauses 14 and 16(1). It disagreed with the decisions which treated Article 16(4) and (4-A) as fundamental rights and imposed an obligation upon the state to enforce them.70 The court suggested a balancing between Articles 16(1) and 16(4) and (4-A). In order to abrogate the decisions in the Chauhan and Ajit Singh cases on the issue of seniority, the Constitution (85th Amendment) Act, 2001 introduced the words "with consequent seniority" in clause (4-A). Even then the court in Bimlesh Tanwar v. State of Haryana held: "Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of the fixation of seniority."
Later the Constitution Bench in Nagaraj¹4 held that the amendment in clause (4-A) was made to abrogate the Chauhan and Ajit Singh cases on the question of seniority. Upholding the amendment the court observed:
The State is not bound to make reservation for SC/ST in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy laver or extend the reservation indefinitely.75
Although, as we have noted above, the court has later held that the concept of creamy layer does not apply to the SCs and STs and adequacy of representation will lead to an end of reservation as well as the 50 per cent limit is subject to clause (4-B), the court has invalidated the requirement of quantifying data for reservation and its impact assess-ment on the efficiency of the SCs and STs in more than one case relying upon the above statement of the court. This led to moving of further amendment of the Constitution as well as to filing of review petition in the court." The court has, however, corrected its mistake of not noticing the change brought by the 77th Amendment in 1995 introducing clause (4-A) in Article 16.7" It also took note of the insertion of the proviso in Article 335 by 82nd Amendment in 2000 which provides for relaxation of qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of promotion for SCs and STs and upheld an office memorandum for making such arrange-ments. However, prior to that, relying upon cases primarily under Article 15(4) along with the Mandal Commission case the court in Faculty Assn. of AIIMS v. Union of India declined to apply for reservation at the entry level of Assistant Professors in AIIMS primarily for the reason that it will dilute merit in a superspeciality institution." It has also held that the seniority of a SC or ST promotee, who was junior to the general category candidate in the post from which he was promoted, could be maintained only if the State provided for it. In the absence of such a provision the general category candidate promoted later will regain his seniority over the SC/ST promotee. 82
Realising the difficulty caused by the statement in the Nagaraj case requiring the quantifiable data for making any further reservation for the SCs and STs as well as the assessment of the impact on efficiency under Article 335 in a reference to the Supreme Court, the Union Government argued for overruling the Nagaraj case. Instead of over-ruling the entire judgment, the court in the Jarnail Singh case overruled that part of the judgment which mandated prior collection of quantifiable data and assessment on efficiency of administration under Article 335.
CLAUSE (4-b)
As the Mandal Commission cases laid down a 50 per cent upper limit for reservations in a year under clause (4) and upheld 49.5 per cent reservations, no scope was left to fill in the backlog vacancies and to hold special recruitment drives. To overcome this handicap, the Constitution (81st Amendment) Act, 2000 introduced an exception to the 50 per cent limit for the purpose of filling the backlog vacancies. Unlike clause (4-A) clause (4-B) is not confined to the SCs and STs. Although no specific case has yet been decided by the court under this clause, in Nagaraj" it suggested that to ensure the effi-ciency of administration required by Article 335 "in each case, the appropriate govern-ment will now have to introduce the time-cap depending upon the fact situation" to fill in the backlog vacancies. It is interesting to note that Article 335 which applies only in case of the SCs and STs has been extended to clause (4-B) which is not confined to those
classes. In Nagaraj, a five-Judge Bench of the court unanimously upheld the validity of the above amendments introducing clauses (4-A) and (4-B) in Article 16. However, the Supreme Court has given somewhat confusing, if not contradictory, opinions in differ-ent cases, 58
Impact of reservation. An authentic countrywide data of the impact of reserva-
tion in all the services under the Union and the States is not yet available but informa-tion sought by The Indian Express from the Union Government shows that in 71 of 91 departments of which the information was supplied, the SCs and STs occupy 17.6 per cent and 7.7 per cent jobs respectively as against their reserved quota of 15 per cent and 7.5 per cent respectively, while the SEBCs and persons with disability, for whom law reserves 27 and 3 per cent jobs respectively occupy only 17.7 per cent and 0.3 per cent jobs respectively. The reason for this discrepancy could be the late provision for the reservations in the latter categories in 1994 and 2004 respectively while for the SCs and STs provision was made in early 1950s. The percentage of SCs and STs is much higher in the lowest services and gets successively reduced in the higher services. Let us hope that in near future the constitutional goal of adequate representation of reserved categories in State services will be achieved and these provisions will become matters of the past.
CLAUSE (5)
Clause (5) lays down that a law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of its governing body shall be a person professing a particular religion or belonging to a particular denomination shall not be treated as repugnant to this article. Therefore, appointments to religious institutions or institutions regulating religious institutions may be restricted to persons of that religion.
CLAUSE (6)
Whatever is stated about clause (6) of Article 15 is equally applicable to clause (6) of Article 16. Therefore, it may be read from there instead of repeating it again.
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