UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

CONSTITUTIONAL RIGHT TO EQUALITY: IN RELATION

TO SERVICE MATTERS
SUBMITTED TO: DR BASANT SINGH

SUBMITTED BY: SNEHA DHILLON

[LLM(2 YEAR); IIIrd SEMESTER; 1853]

PROJECT REPORT FOR THE PURPOSE OF INTERNAL ASSESSMENT IN SEMESTER

THREE (LLM 2 YEAR ) FOR THE SUBJECT OF SERVICE LAWS .
 ACKNOWLEDGEMENT

I provide my immense gratitude to Dr. Basant Singh, for giving me with this opportunity to widen my
horizon on the given topic “CONSTITUTIONAL RIGHT TO EQUALITY: IN RELATION TO
SERVICE MATTERS”.
I would like to thank him for his constant support and guidance for the completion of this assignment.
I would also like to thank the department library and staff for their support and cooperation for the
research work.

SNEHA DHILLON DR. BASANT SINGH

( LL.M.(2 YEAR COURSE)
(3rd Semester, Roll.No 1853)
 INDEX

1) Introduction 4
2) New Concept Of Equality- Dynamic Approach 5
3) Equality Of Opportunity In Matters Of Public Employments 6
4) Requirement As To Residence In State 7
5) Reservation Of Posts For Backward Classes 8
6) Meaning Of Backward Classes 8
7) Reservation In Promotions 9
8) Carry Forward Of Reserved Vacancies 10
9) Post Nagraj: Supreme Court Cases On Reservation In Promotion (2010- 2018) 10
10) Concept Of Creamy Layer: Application To Candidates Of Scheduled Castes And
Scheduled Tribes 12
11) Reservations In Promotion And Consequential Seniority 13
12) Conclusion 15
13) Bibliography 14
Introduction

Right to equality is given under article 14 of Indian Constitution. It is one of the

fundamental right. It ensure the guarantees to every person the right to equality before
law & equal protection of the laws .It is not only right of Indian citizens but also right of
non-citizens. Article 14 says “The state shall of India.” article 14 defines that no one is
above the law and All are equal in eyes of law.
Equality under Article 141 is used in two expressions:
➔ Equality before law (Rule of Law)
According to Dr. Jennings said that: “Equality before the law means that equality among
equals the law should be equal for all. And should be equally administered, that like
should treated alike. The right to sue and be sued, to prosecute and prosecuted for the
same kind of action should be same for all citizens of full age and understanding without
distinctions of race, religion, wealth, social status or political influence.”
It means absence of any special privileges for any particular person. It strikes at the
arbitrary power on part of the government and is a negative concept.
Also it is held by the Supreme Court that this expression means that “no man is above
law in India and every person whatever be his rank or condition in life is subjected to the
ordinary law of the land and is answerable to the jurisdiction of the ordinary courts and
tribunal”.2 Also the concept of Rule of Law is held to be the the basic structure of the
constitution of India by the Apex Court of the country3.
➔ Equal Protection of laws:
This means that all persons have the right to equal treatment in similar circumstances
both in privileges conferred and in liabilities imposed by law.
It also lays down that “likes should be treated alike and unlike should not be treated
alike”4
that the violation of equal protection of laws will also lead to violation of equality before
law. This is a positive concept and aims at equal treatment to all in equal circumstances.
Also the Supreme Court has held that both expressions mean the same thing which is
equality of status and opportunity. 5 Thus the common idea to both is equal justice.
However in 1992 the apex court said that these expressions did not imply same thing but

1 Constitution of India
2 TN. Godavarman v. Ashok Khat AIR 2006 SC
3 Keshvanand Bharati v. Union of India AIR 1973 SC.
4 SC Special Courts Bill Case AIR 1979.
5 State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC.

Constitutional Right To Equality: In Relation To Service Matters 4

there were common things in them. That the former explains laws in generic sense and
the later explains about specific laws in force.6

New Concept of Equality- Dynamic Approach

After 1970, the concept of equality as contained in the Article 14, has acquired new and
very important dimensions. Before this the requirements of Article 14 were met if a law
or administrative action satisfied the reasonable classification-doctrine based on nexus
test. These tests were laid down in case of R.K. Dalmia v. Justice Tendulkar 7 where the
supreme court held that article 14 permits reasonable classification but prohibits class
legislation. The court said the following things:
a) that classification must be founded on intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group.
b) that the differentia must have a rational relation to the object sought to be
achieved by the statute in question.

By the end of 1973, justice Bhagwati in E.P. Royappa v. State of Tamil Nadu 8
propounded a new approach to the concept of equality under Article 14, providing that:
“Equality is a dynamic concept with many aspects and dimensions and it cannot be
cribbed, cabined and confined within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In fact, one belongs to the
rule of law in a republic while the other to the whim and caprice of an absolute monarchy.
Where an act is arbitrary it is implicit in it according to political logic and constitutional
law and is, therefore, volatile of Article 14.”9

In the famous case of Maneka Gandhi v. Union of Indi 10, Justice Bhagwati has held that
the provisions of Part III of the Constitution should be given widest possible
interpretation. Quoting himself from Royappa case, Justice Bhagwati very clearly read
the principle of reasonableness in Article 14. He said: “Article 14 strikes at arbitrariness
in State action and ensures fairness and equality of treatment. The principle of
reasonableness, which logically as well as philosophically, is an essential element of
equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.” 11
6 Srinivas Theater v. Govt. of Tamil Nadu AIR 1992 SC.
7 AIR 1958 SC 538
8 AIR 1974 Sc 555
9 ibid.
10 AIR 1978 SC 597
11 Ibid.

Constitutional Right To Equality: In Relation To Service Matters 5

Finally, in Ajay Hasia v. Khalid Mujile 12, the Apex Court held that Article 14 strikes at
arbitrariness because an action that is arbitrary, must necessarily involve negation of
equality. The doctrine of classification which is evolved by the court, is not paraphrase of
Article 14 nor is it the objective and end of that Article.

That the new concept of equality explains that the doctrine of classification is applied for
determining the reasonableness in state action. It is a subsidiary rule for testing whether
a particular state action is arbitrary or not. It means that where an action of state is
arbitrary it will violate article 14 of the constitution and would not even be justified on
the basis of reasonable classification.13

Equality of Opportunity in Matters of Public Employment

Article 16 is an instance of the application of the general rule with special reference to
the opportunity of appointments under the State. It says that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to any
office under the State.
There shall be equality of opportunity for all citizens in matters relating to employment
or appointment to any office under the State. The rule applies only in respect of
employments or offices which are held under the state. i.e., the person holding office as
subordinate to the state. 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 the servants. 14

The qualification pointed may, besides mental excellence, include physical fitness, sense
of discipline, moral integrity and loyalty to the state. The qualification or the selection
test must not be arbitrary and be based on reasonable grounds and must have nexus with
the efficient performance and duties of particular post.15

Denial of equal treatment on the sole ground of drawing a particular amount of salary on
a particular date while other conditions relating to qualifications and experience being

12 AIR 1981 SC 487

13 Ibid.
14 State of J&K v. Shiv Ram Sharma, AIR 1999 SC 2012.
15 Food Corporation of india v. Om Prakash Sharma, AIR 1988 SC 2682.

Constitutional Right To Equality: In Relation To Service Matters 6

equal would amount to violation of the guarantee contained in clause 1 of article 16. 16Also
when selection is made without preparing a merit list and if appointment is made by pick
and choose method would be arbitrary exercise of power and contray to article 16(1) of the
Indian constitution.17
Classification on Educational Qualification was held valid when distinction was made
between diploma holders and graduate Degree Engineers for promotion to higher post. 18
Thus Art. 16(1) entitles ever citizen to an equal opportunity in matters of employment or
appointment to any office under the State, while Art. 16(2) spells out the grounds like
religion , race, caste etc, which shall not be a ground of ineligibility or discriminating for
any citizen in respect of any employment or appointment under the State to which he is
otherwise eligible. The principal aim of both the clause is to realise the goal of equality of
status and opportunity and effectuate the fundamental rights to equality, that is equality
before law and equal protection of law.

Requirement As To Residence In State

Article 16(3) provides: Nothing in this Article shall prevent from making any law
prescribing in regards to a class or classes of employment to an office.... any requirement
as to residence within that state or union territory prior to such employment or
appointment. This shows that there is a flexibility of approach as to the ground of
residence, which is a prohibitory grounds of discrimination under Article 16(2). This
clause emerged as an exception to Article 16(2), enabling the Parliament to make law(s)
in special cases prescribing any requirement as to residence within a State or union
territory prior to appointment, as a condition of employment in such State or Union
territory. The rationale for this exception is given by the Supreme Court in Narsimha
Rao Vrs. State of Andhra Pradesh 19 as: " that some times local sentiments may have to be
respected or sometimes an inroad from more advanced states into less developed states
may have to be prevented, a residential qualification may, have to be prescribed, following
exception in Cl.(3) was accordingly made".

16 State of UP v. Sachidanand Srivastav, AIR 1999 SC 1934.

17 State of Bihar v. Kumar Pramod Narayan Singh, AIR 1997 SC 677.
18 Assam State Electricity Board v. GN Pathak AIR 1997 SC 3385
19 AIR 1970 SC 422

Constitutional Right To Equality: In Relation To Service Matters 7

Reservation of Posts for Backward Classes

Clause 420 of Article 16 is an enabling provision 21. It confers discretionary power on the
state to make reservations in appointments to services of the state in favour of backward
classes of citizens not adequately represented either numerically or qualitatively. 22
However it is not a mandatory article and there is no right on citizens to claim
reservations.23

The rationale of Art. 16(4) is stated by the Supreme Court in State of Kerala v.
N.M.Thomas24 The court noted that the framers of the Constitution were conscious of the
backwardness of large sections of the population. It was also plain that because of their
backwardness, classes, sections of the population would not be in a position to compete
with advanced section of the community who had all the advantages of affluence and
better education . The fact that the doors of competition were open to them would have
been a poor consolation to the members f the backward class, because the chances of their
success in the competition in the competition were far too remote on account of the
inherent handicap and disadvantages from which they suffered. The result would been
that, leaving aside some exceptional cases the members of backward classes would have
hardly got any representation in jobs requiring educational background. Under the above
clause, it is permissible for the State, in case it finds the representation of any backward
class of citizens in the State services to be not adequate, to make provision for the
reservation of appointments or posts in favour of that backward class of citizens . The
reservation of seats for the members of the backward classes was not, however, to be at
the cost of efficiency . In view of that it is not permissible to waive the requirement of
minimum educational qualification and other standard essential for the maintenance of
efficiency of service.25

Meaning Of Backward Classes

The words ' "backward class of citizens" occurring in Article 16 (4) are neither defined nor
explained in the Constitution though the same words occurring in Article 15 (4) are

20 Constitution of India art. 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 of the state.
21 State of Bihar v. Bal Mukund AIR 2000 SC 1296
22 Indira Swahney v. Union of India AIR 1993 SC 477
23 VG Deshmukh v. PC Aggarwal AIR 1999 Bom 142
24 AIR 1976 SC 490
25 Ibid.

Constitutional Right To Equality: In Relation To Service Matters 8

followed by a qualifying phrase, "Socially and Educationally'' backward classes.
Incidentally, it is also necessary to point out that the Supreme Court in all its decisions
on reservation has interpreted the expression `backward classes' in Article 16 (4) to mean
the "socially and educationally" backward. It also emphatically rejected "economic
backwardness" as the only or the primary criterion for reservation under article 16 (4)
and observed that economic backwardness has to be on account of social and educational
backwardness. The true meaning of this expression has been considered in a number of
cases by the Supreme Court starting from Balaji to Indira Sawhney.

In M.R. Balaji v. State of Mysore 26, it was held that the caste of a group of persons cannot
be the sole or even predominant factor though it may be a relevant test for ascertaining
whether a particular class is backward or not. The two tests should be conjunctively
applied in determining backward classes: one, they should be comparable to the Schedule
Castes and Schedule Tribes in the matter of their backwardness; and, two, they should
satisfy the means test, that is to say, the test of economic backwardness laid down by the
State government in the context of the prevailing economic conditions. Poverty, caste,
occupation and habitation are the principal factors contributing to social backwardness.

Supreme Court in Indira Sawhney & Ors. v. Union of India 27 Upheld Implementation of
separate reservation for other backward classes in central government jobs. Court
ordered to exclude Creamy layer of other backward classes from enjoying reservation
facilities. Ordered to restrict reservations within the 50% limit and declared separate
reservations for economically poor among forward castes as invalid.

Reservations in Promotions

Reservation in promotion pertains to reservations granted to Scheduled Castes and

Scheduled Tribes (SCs/STs) for promotions in public employment. It has been a bitterly
contested issue between the Supreme Court and Parliament. In 1992 the Court, in its
Indra Sawhney judgment, found that Article 16(4) does not allow for reservation in
promotion. Then, between 1995 and 2000, Parliament enacted a series of Constitutional
Amendments that legalized reservation in promotion. In 2006, the Court responded with
its Nagaraj judgement, which placed strict conditions on when the State could grant a
SC/ST reservation in promotion.

26 AIR 1963 SC 469

27 AIR 1993 SC 477

Constitutional Right To Equality: In Relation To Service Matters 9

As per the Mandal28 Commission Case reservations were only to be confined to initial
appointments and does not extend to the matter of promotion. As a strike to the supreme
court verdict the parliament came up with amendment to article 16 in form of clause
4A.29 This new clause provide reservation in promotion in favour of SC/ST.

The validity of this amendment was challenged in the “Nagraj Case” but both the clauses
4A and 4B were upheld considering they fulfill the criteria of backwardness, inadequacy
in representation and efficiancy in administration. The court held that Arts.l6(4A)and
Art.l6(4B) have been inserted and flow from Art.l6(4). They do not alter the structure of
Art.l6(4). They retain the controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables the State to provide for
reservation keeping in mind the overall efficiency of the State administration under
Artcle 335. These impugned amendments are confined only to SCs and STs. 30

Carry Forward of Reserved Vacancies

Through 81st Amendment, the government introduced Article 16(4B), which allowed
reservation in promotion to breach the 50% ceiling set on regular reservations. The
Amendment allowed the State to carry forward unfilled vacancies from previous years.
This came to be known as the Carry Forward Rule.

In Indra Sawhney case the apex court held that operation of carry forward of vacancies
should not breach the 50% ceiling. But this became obsolete after amendment to
constitution in 2000.31 This added clause 4B32 to Article 16.

Post-Nagaraj: Supreme Court Cases on Reservation in Promotion (2010-2018)

The following are instances where the Supreme Court applied the principles outlined in
Nagaraj with regards to granting reservations in promotion. Nagaraj introduced
guidelines that require the State to demonstrate “further backwardness”, inadequate

28 Indira Swahney v. Union of India AIR 1993 SC 477

29 Id. 20, art.16 4A . Nothing in this article shall prevent the State from making Provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor 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.
30 M. Nagraj v. Union of India, AIR 2007 SC 71.
31 81st Amendment to the Constitution of India
32 Id. 20 art. 16 4B. 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 per cent reservation on total number of vacancies of that
year.

Constitutional Right To Equality: In Relation To Service Matters 10

representation and the maintenance of administrative efficiency prior to granting
reservations in promotion.

In Suraj Bhan Meena vs. State of Rajasthan 33 ,the Supreme Court upheld the decision of
the Rajasthan High Court that had quashed a notification by Rajasthan government. The
notification provided for promotion of SC/STs in State employment without acquiring
quantifiable data showing inadequacy of representation by the SC/STs in question in
public employment. The Court held the notification violated the criteria outlined in
Nagaraj.

The Court said that it is wrong to assume that once reservation in promotion has
constitutional recognition, no fresh exercise by the State is needed.

In all cases of advancing reservation in promotion, it is imperative upon the concerned

State to demonstrate to the Court that reservation became necessary due to inadequate
representation of SC/STs in particular class of posts and this will not undermine
administrative efficiency34

Then in Chairman & Managing Director, Central Bank of India v. Central Bank of India
SC/ST Employees Welfare Association35, the main question was that Could an Association
representing SC/ST candidates demand that the mandamus be issued against the State
concerned for effectuating a reservation in promotion policy as a matter of right.

The supreme court answered in negative. Power of State to provide reservation in

promotion in respect of SC/ST candidates are enabling in nature. In absence of statutory
reservation provision made by State in pursuance of Article 16 (4A) and (4B), no general
right accrues in favour of SC/ST employees demanding reservation. Article 16(4A) and
(4B) are enabling provision and provide no fundamental right to seek reservation in
promotions.36

33 (2011) 1 SCC 467, para 66-68

34 UP Power Corporation vs. Rajesh Kumar (2012) 7 SCC 1.

35 (2015) 12 SCC 308
36 Ibid.

Constitutional Right To Equality: In Relation To Service Matters 11

Concept of Creamy Layer- Application to Candidates of Scheduled Castes and
Scheduled Tribes Parliament made amendments37 to nullify the effect of the Court’s
judgement in Indra Sawhney38. In Indra Sawhney, a nine-judge Bench had ruled that
reservations in appointments, granted to the State byArticle 16(4), do not apply to
promotions.

Article 16(4A) enables the State to make any law regarding reservation in promotion for
SC/Sts. Article16(4B) provides that reserved promotion posts for SC/STs that remain
unfilled, can be carried forward to the subsequent year. Article 16 (4B) also ensures that
the ceiling on the reservation quota – capped at 50% by Indra Sawhney -- for these
carried forward unfilled posts does not apply to subsequent years.

Indian constitution39 mandates that reservations have to be balanced with the

‘maintenance of efficiency’. The 2001 amendment to Article 335 clarified that the Article
will not apply to the State relaxing evaluation standards in ‘in matters of promotion’.

The current issue arose from an appeal by the State of Tripura against the judgment of
the Tripura High Court. Tripura High Court had struck down Section 4(2) of the Tripura
Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts)
Act, 1991 as being in violation of the three controlling conditions laid down in Nagaraj.

A Division Bench of the Supreme Court, heard the appeal and decided to refer the case to
a Constitution Bench in November 2017.Various other matters were tagged to the appeal.

Furthermore, the Court evaluated whether the Nagaraj judgement violates the Indra
Sawhney ruling. On 26th September 2018, the Court delivered its verdict. It did not call
for a review of Nagaraj. Further, it struck down the demonstration of backwardness
provision from Nagaraj. However, while doing so, it introduced the creamy layer
exclusion principle, thus requiring that the State does not extend reservations in
promotion to SC/ST individuals who belong to the creamy layer of the said SC/ST. 40

However, while the judgment modified the further backwardness criterion, it also added
that the principle of creamy layer exclusion applies to SC/Sts. Previously creamy layer
exclusion only applied to Other Backward Classes (OBCs) in matters of reservation.

37 The Constitution (Seventy Seventh Amendment) Act, 1995 which inserted Article 16(4A); The Constitution
(Eighty First Amendment) Act, 2000 which added Article 16(4B); The Constitution (Eighty Second Amendment)
Act, 2000 which inserted a proviso to Article 335; The Constitution (Eighty Fifth Amendment) Act, 2001 which
added "consequential seniority" for SC/STs under 16(4B).
38 AIR 1993 SC 477
39 The constitution of India , art. 335.
40 Jarnail Singh v. Lachhmi Narain Gupta, SLP (C) 30621/2011, decided on 26 sept 2018.

Constitutional Right To Equality: In Relation To Service Matters 12

The Court held that creamy layer exclusion is a principle of equality. It held that failing
to apply the exclusion of creamy layer principle would violate right to equality in two
ways. Firstly, it held that doing so treats equals differently, namely the general classes
and the forward among Backward Classes (SC/ST). Second, it held that doing so treat
unequals the same, namely backward classes and the forward among backward classes.
Thus, the Court held that the exclusion of creamy layer principle is essential to safeguard
the right to equality.41

Nariman J. observed "the whole object of reservation is to see that backward classes of
citizens move forward so that they march hand in hand with other citizens of India on an
equal basis. This will not be possible if only the creamy layer within that class bag all the
coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class
as backward as they always were." 42

Justice Nariman wrote, the Castes and groups mentioned under Presidential Order is not
altered, but those persons of the group who have come out of untouchability or
backwardness by virtue of belonging to creamy layer are excluded from the benefit of
reservation in promotion.43

Reservations In Promotion And Consequential Seniority

On 10 May 2019, the Supreme Court upheld the validity of the 2018 Reservation Act 44
that introduced consequential seniority for SC/STs in Karnataka public employment.

Consequential seniority allows reserved category candidates to retain seniority over

general category peers. If a reserved category candidate is promoted before a general
category candidate because of reservation in promotion, then for subsequent promotion
the reserved candidate retains seniority. In effect, consequential seniority undoes the
'catch-up rule' that allowed general category candidates to catch-up to reserved category
candidates.45

The Court did not look at the data on backwardness because Jairnail Singh46 had
removed that requirement. However, Jarnail Singh did introduce the creamy layer

41 Reservation in Promotion, accessible at: https://www.scobserver.in/court-case/reservation-in-promotion-for-scs-

and-sts/plain-english-summary-of-judgment-7b542862-0e20-494c-a1a3-5d07440c7552, last visited on 11 Nov
2019.
42 Supra note. 40
43 Supra note 41.
44 The Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of
Reservation (to the Posts in the Civil Services of the State) Act 2018 (2018 Reservation Act).
45 Supra note 41.
46 Jarnail Singh v. Lachhmi Narain Gupta, SLP (C) 30621/2011, decided on 26 sept 2018.

Constitutional Right To Equality: In Relation To Service Matters 13

exclusion principle. The Committee had not collected creamy layer data, given that the
judgment came out after the report. Nevertheless, the Court upheld the Reservation Act
2018.

Justice Chandrachud reasoned that Jarnail Singh introduced the creamy layer principle
for reservation in promotion and not for consequential seniority. Specifically, he held that
consequential seniority is a consequence of reservation in promotion and not an
additional benefit. Hence, he held that the creamy layer test could only be applied at the
stage of reservation in promotion and not subsequently for consequential seniority. 47

Next, the Court looked at administrative efficiency. Justice Chandrachud accepted the
Committee’s claim that Karnataka continues to show high performance in various sectors
despite reservation in public jobs. While the Report did not go into specifics, it concluded
that no inference can be drawn that reservation in favor of SC/ST has negatively
impacted efficiency.48 Further, Justice Chandrachud introduced an inclusive definition of
administrative efficiency. He examined the definition of efficiency under Article 335 of
the Constitution and observed that it ‘does not define what the framers meant by the
phrase “efficiency of administration”.’ He then proceeded to define efficiency in terms of
equal representation.49

Justice Chandrachud criticized the predominant merit-based approach to maintaining

administrative efficiency. He observed that the seemingly neutral system of standardized
tests mask existing inequalities in society, which appear to favor already privileged
candidates. Referring to scholar Marc Galanter, he said that standardized exam results
are based on economic resources, social and cultural resources and individual hard work.
He observed that the first two are structural conditions beyond the control of the
individual. He held that the conditions must be controlled for. 50Then he introduced a
representative definition of efficiency. Citing Amartya Sen, he held that merit should be
measured as an action that leads to societal good. Hence, he held that a meritorious
candidate is not just one who is more talented, but on whose appointment fulfills the
constitutional goal of uplifting SC/STs.51 He concluded that this representative notion of
efficiency is congruent with the policy of consequential seniority.52

47 BK Pavitra v. Union of India II, Decided on 10 May 2019 SC.

48 Ibid.
49 Supra note 41.
50 Supra note 47.
51 Reservation in Promotion, accessible at: https://www.scobserver.in/court-case/reservation-in-promotion-for-scs-
and-sts/plain-english-summary-of-judgment-7b542862-0e20-494c-a1a3-5d07440c7552, last visited on 11 Nov
2019.
52 Ibid.

Constitutional Right To Equality: In Relation To Service Matters 14

Conclusion

Articles 14, 15 and 16 signifier part of a strategy of the Constitutional Right to Equality.
Article 15 and 16 are peripheral of guarantees of Equality, and yield result to Article 14.
However, at first, Articles 15(4) and 16(4) were reasoned exceptions to Articles 15(1) and
16(1), but are enabling clauses. Thus majority of a 7-Judge Bench of the Hon’ble Supreme
Court, in State of Kerala v. N.M. Thomas 53,introduced a change in the concept of equality.
It held that Articles 14, 15, and 16 are all equality rights, and that the scheme of equality
sought to achieve real equality.

Equality, as guaranteed in our Constitution, not only conceives of providing formal

equality but also to provide for real and absolute equality. Articles 14 and 15(1) enable
and contemplate classification to achieve the Constitutional Objective of real equality.
Articles 15(4) and 16(4) flow out of Articles 15(1) and 16(1) respectively, and can never be
considered as exceptions to Article 15(1) and Article 16(1).

Article 15 is an instance and particular application of the right of equality provided for in
Article 14. While Article 14 guarantees the general right, Articles 15 and 16 are instances
of the same right in favour of citizens in some special circumstances 54.

Therefore, the equality contemplated by Article 14 and other cognate Articles like 15(1),
16(1), 29(2), and 38(2) are secured not only by treating equals equally, but also by
treating un-equals unequally.

This empowers positive discrimination in favour of the disadvantaged, particularly the

SCs and STs. In E.V. Chinnaiah v. State of A.P.it was held that a legislation may not be
amenable to challenge on the ground of violation of Article 14 if its intention is to give
effect to Articles 15 and 16 or when the differentiation is not unreasonable or arbitrary. 55

Articles 15 and 16 prohibit discriminatory treatment, but not preferential treatment of

women and children, which is a positive measure in their favour. Affirmative action
including by way of reservation is enabled by the equality clause in the
Constitution.Article 15(4), which was added by the Constitution First Amendment of
1951, enables the State to make special provisions for the advancement, inter alia, of
Scheduled Castes and Scheduled Tribes, notwithstanding Articles 15(1) and 29(2).

The wording of Article 15(4) is similar to that of Article 15(3). Article 15(3) was there
from the inception. It enables special provisions being made for women and children
53 1976 2 SCC 310
54 Dasaratha v. State of A.P., AIR 1961 SC 564.

55 2005 1 SCC 394

Constitutional Right To Equality: In Relation To Service Matters 15

notwithstanding Article 15(1) which imposes the mandate of non-discrimination on the
ground (among others) of sex. This was envisaged as a method of protective
discrimination. This same protective discrimination was extended by Article 15(4) to
(among others) Scheduled Castes and Scheduled Tribes.

As a result of the combined operation of these articles, an array of programmes of

compensatory or protective discrimination have been pursued by the various States and
the Union Government.

Since every such policy makes a departure from the equality norm, though in a
permissible manner, for the benefit of the backward, it has to be designed and worked in
a manner conducive to the ultimate building up of an egalitarian non-discriminating
society. That is its final constitutional justification.

Therefore, programmes and policies of compensatory discrimination under Article 15(4)

have to be designed and pursued to achieve this ultimate national interest. At the same
time, the programmes and policies cannot be unreasonable or arbitrary, nor can they be
executed in a manner which undermines other vital public interests or the general good
of all.

All public policies, therefore, in this area have to be tested on the anvil of reasonableness
and ultimate public good. In the case of Article 16(4) the Constitution-makers explicitly
spell out in Article 335 one such public good which cannot be sacrificed, namely, the
necessity of maintaining efficiency in administration. Article 15(4) also must be used and
policies under it framed in a reasonable manner consistently with the ultimate public
interests.

The concept of equality of opportunity in matters of employment is wide enough to

include within it compensatory measures to put the members of the Scheduled Castes
and scheduled tribes on par with the members of other communities which would enable
them to get their share of representation in public service.Formal equality of opportunity
simply enables people with more education and intelligence to capture all the posts and
to win over the less fortunate in education and talent even when the competition is fair.
Equality of result is the test of equality of opportunity.

Constitutional Right To Equality: In Relation To Service Matters 16

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Constitutional Right To Equality: In Relation To Service Matters 17