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Monday, September 26, 2011

Q. What is meant by right to equality of opportunity In public employment? What are its exceptions?

Ans. The provisions regarding right to equal opportunity in public employment arc contained in Article 16 of the Constitution. These provisions are—
(1) Every citizen shall enjoy equality of opportunity in public employment.
(2) No citizen shall be discriminated against in the public employment under the Stale only on the grounds of religion, race, caste, place of birth, descent or residence or any of them.
(3) However, Parliament may by law provide for making residence as one of the eligibility conditions for public employment in a State.
(4) The State is empowered to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of’ the State, is not adequately represented in the services of the State.
(5) The Seventy-Seven (Constitution) Amendment Act, 1995. further broadens the scope of this provision. Thus, the State can make any provision for reservation is matters of promotion to any class or classes of posts in the services of 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.
(6) It may he provided by law that the incumbent of an office in connection with the affairs of any religious institution or its governing body, shall be a person professing a particular religion.
It should be mentioned that the right to equal opportunity in.public services is confined to Indian citizens only. The grounds of discrimination have been explained in Article 16 itself. These exceptions called positive discrimination are made in favour of backward classes and the Scheduled Castes and Scheduled Tribes.
However, it should be remembered that giving equal opportunity in public service does not mean absolute equality in strict sense The distinctions on the ground of age, qualifications etc. are to be maintained within the orbit of equal opportunity in public services. This was held by the Supreme Court in the case of Subha Chand Vs. Delhi Electric Supply Undertaking (1981).
The Supreme Court has, however; also ruled in General Manager Vs. Rangachari (1962) that the Slate is entitled to select the best persons out of the candidates who have applied for some post but the select ion criterion should not be arbitrary. The selection should he made under the determined policies and principles. The court also ruled in this case that the provisions of 16(1) arc not only applicable in case of first appointment but also in promotion, retirement, salary, leaves, increment, gratuity, pensions, etc.
Under the provisions of Article 16(4), the State can make reservation of posts in public services in favour of socially and educationally backward classes of people, if these classes are not adequately represented in the services of the State. But the criterion of reservation cannot he only caste or religion. The accepted criterion is that if more than 9O persons belonging to a caste are socially and educationally backward. the persons belonging to that caste may he included in the backward

category (Rulings of the Supreme Court in Venkatraman Vs. State (1951) and Balaji Vs. State of Mysore (1963). There arc no specific directions in the Constitution as to what should be the maximum limit of reservation in public services. The Supreme Court in the case of Dr. Chakradhar Paswan Vs. State of Bihar and others (198), held that there shall not be any reservation in making appointment to a single post. If the posts vacant re more than one, the reservation becomes applicable. The court reiterated its earlier decision in Balaji case (1963) that the reservation should not exceed fifty per cent of the total vacant posts. Even after the implementation of reservation in favour of Backward classes as recommended by the Mandal Commission, the court is of the opinion that the reservation should not exceed the limit of fifty per cent.

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