A.V. S. NARASIMHA RAO AND OTHERS versus THE STATE OF ANDHRA PRADESH AND ANOTHER

A. v. S. NARASIMHA RAO AND OTHERS

THE STATE OF ANDHRA PRADESH AND ANOTHER March 28, 1969

[M. HlDAYATULLAH, C.J., J. c. SHAH, v. RAMASWAMI, G. K. MITTER AND A. N. GROVER, JJ:.J

Constitution of India, Art. 16(3 )-Requirement as to residence in part of State-If valid.

Public Employment (Requirement. as to Residence) Act, 1957, s. 3-App/icatio11 to Telengana Area-Validity.

Andhra Pradesh Public Employment (Requirement as to Residence) Rule, 1959, r. 3-Validity.

The Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957 in pursuance of cl. (3) of Art. 16 of the Constitu-tion of India making special provisio!l for requirement as to residence in l'ilblic employment. Section 3 of the Act gave the power to make rules m respect of certain classes of employment in certain areas, and accord-ingly the Andhra Pradesh Public Employment (Requirement as to Resi-E dence) Rules were made prescribing the requirement, as to residence prior to appointment to certain posts, within the Telengana area of the State. The petitioners who were non-domicile persons appointed to the posts reserved for the domiciles of Telengana under the rules, were by an order relieved from their posts and employed in the other region of the State. The petitioners, filed petition under Art. 32 of the Constitution challenging the Act, the Rules and the order as ultra vires .the Constitn-tion. Quashing the order, this Court,

HELD : Section 3 of the Public Employment (Requirement as to Re-sidence) Act, 1957 in so far as it related to Telengana and Rule 3 of the Rules under it were ultra vires the Constitution. [122 Al

Qause (3) of Art. 16 of the Constitution enables Parliament t<> make law in special case prescribing any requirement as to residence within State or Union Territory prior to appointment, in the State or Union· Territory. The provision speaks of whole State as the venue tf.or resi-dential qualification and it is impossible to think that the Constitue;it Assembly was thinking of residence in Districts, Talukas, cities, towns or villages. The fact that the clause is an exception and citme as an amend-ment must dictate that narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. The words 'any law' and 'any requirement' cannot be given wide and liberal construction. These words are controlled by the. words. 'residence within the State or Union Territory' which words mean what they say neither more or less. [121 D-G]

ORIGINAL JURISDICTION: Writ Petition No. 65 oi 1969.

Petition under Art. 32 of the Constitution of Lndia for enforce-ment of fundamental rig)lts.

S. V. Gupte, P. A. Choudhury and K. Rajendra Chaudhuri, for the petitioners.

M. C. Setalvad,

P. Ramachandro Rao, Advocate-General,

Andhra Pradesh, A. Raghublr and }4, V. Rangam, for respon-dent No. 1.

M. C. Setalvad alld R. N. Sachthey, for respondent No. 2.

R. V. Pillai, H. S. Gurura/ Rao and Subodh Markandeya, for reepondents Nos. 3 to 4S.

Sardar Ali Khan, P. N. Duda and J. B. Dadachanji, for res-pondent No. 46.

P.A. Choudhury, K. Rajendra Chaudhuri and C. S. Sreenivasa Rao, for the intcrveners.

The Judgment of the coun was delivered by

Hidayatullah, C.J. The petitioners are persons employed in the ministerial services of the Andhra Pradesh Government. All of them were working in various offices located in the cities of Hyderabad and Secunderabad. On January 19, 1969, leaden. of 'all political parties in the Legislature of the Andhra Pradesh State appeared to have met and reached the decision thatto ·implement what arc called 'Telengana Safeguards', the following measures should be taken :

M All non-domicile persons, who have been appoint-ed either directly, by promotion or by transfer to posts reserved under the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959 for domi-ciles of Telengana region will be immediately relieved from service. The posts so rendered vacant will be filled by qualified candidates possessing domicile qualifica-tions and in cases where such candidates are not avail-able the posts shall be left unfilled till qualified domicile candidates become availabl~ Action on the above lines will be taken immediately.

All non-domicile employees so relieved shall be pro-vided employment in the Andhra region without break in service and by creating supernumerary posts, if necessary."

The Government of Andbra Pradesh then passed an order· ' (G.O.Ms. 36, G.A. (SR) Dept.) on January 21, 1969 relieving: before February 28, 1969 all non-domicile persons appointed. on or after November 1, 1956 to certain categories of posts r&--served for domiciles of Telengana under the Andbra Pradesh Pub-lic Employment (Requirement as to Residence) Rules, 1959. Names of such incumbents were to be shown in proforma and they were to be employed in the Andbra region without break in service by creating supernumerary posts, if nece5sary. These-supernumerary posts were to be treated as temporary addition to the strength of the office concerned and were to be adjusted against future vacancies in corresponding posts as they arose. The action was based upon s. 3 of the Public Employment (Requirement as-c to Residence Act, 1957 ( 44 of 1957) which was an Act of Par-· liament made in pursuance of cl. (3) of Art. 16 of the Constitu-tion making special provision for requirement as to residence and' brought into force on March 21, 1959. Section 3 of the Act gave the power to make Rules in respect of certain classes off employment in certain areas. It provided :

"3. Power to make rules in respect of certain classes of public employment in certain areas.-

( 1) The Central Government may, by notification in the qmcial Gazette, make rules prescribing, in regard to appointments to-

(a) any subordinate service or post under the State Government of Andhra Pradesh, or

any requirement as to residence within the Telen-gana area or the said Union territory as the case may be, prior to such appointment.

(2) In this section,-·

(b) "Telengana area" comprises all the territories specified in sub-section ( 1) of section 3 of the States Reorganisation Act, 1956."

Under s. 4, the Rules had to be laid before each House of Parliament for period of not less than 30' days and Parliament could make sucli alterations as it liked. Under s. 5 the Rulea had life of 5 years but by snbsequent legislation' the period' was extended to 10 years. It is said that the period

is to be extended by another 5 years. The Rules were made on March 21, 1959. They are called the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959. Rule 3 provides:

"3. Requirement as to residence Prior to Appoint-

ment:

person shall not be eligible for appointment to

post within the Telengana area under the State Gov-ernment of Andhra Pradesh or to post under local authority (other than cantonment board) in the said area unless--

(i) he has been continuously residing within the said area for period of not less than fifteen years im-mediately preceeding the prescribed date; and (ii) he produces before the appointing authority concerned, if so required by it, certificate of eligi-bility granted under these rules;

Provided that in relation to posts in the Secretariat Departments and the Offices of the Heads of Depart-ments of the State Government of Andhra Pradesh sit-uated in the cities of Hyderabad and Secunderabad, the requirement as to resid~nce laid down in this rule shall ' apply to the filling of only the sccorid v~cy in every unit of three vacancies which are to be filled by direct recuriment;

Provided further that any period of temporary ab-sence from Telengana area for the purpose of prosecuting his studies or for undergoing medical treatment or any period of such temporary absence not exceeding three months for any other reason shall not be deemed to constitute break in the continuity of such residence, but for purpose of calculating the said period of fifteen years any such period of temporary absence shall be excluded."

The petitioners were appointed between December 27, 1956 and July 4, 1968. They challenge the Act, the Rules and the proposed action as ultra vires the Constitution. Their case is that Art. 16(3) under which the Act and the Rules purport to be made has been misunderstood as conferring power to make law prescribing requirement as to residence in part of State. For this reason s. 3 of the Act is challanged as ultra vires the Constitution.

Article 16 on which the Act, the Rules and the present action are all based, reads :

"16. Equality of opportunity in matters of public employment.

(1) There shall be equality of opportunity -for. all citizens in matters relating to employment or appomt-ment to any office under the State.

(2) No citizen shall, on ground 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 mak!ng any law prescribing, in regard to class or classes of employment or appointment to~ an office under the Government of, or any local or other autho-rity within, State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

The question is one of construction of thiS artjcle, particu-larly of the first three clauses, to find out the ambit of the law-making power of Parliament. The first clause emphasises that there shall be in India equality of opportunity for all citizens in matters of employment or appointment to any office under the State. The word 'State' here is to be understood in the extended sense given to it by the definition of that word in Art. 12. The second clause then specifies a· proliibition against discrimination only on the grounds of religion, race, sex, descent, place of birth, residence or any of them. The intention here is to make every office or employment open and available to every citizen, and inter alia to make offices or employment in one part of India open to citizens in al~ other 'parts of India. t'fie- third clause then makes an exception. This clause was amended by the Constitution (Seventh Amendment) Act, 1956. For the ori-ginal words of the clause 'under any State specified in the First Schedule or any local or other authority within its territory any requirement as to residence within· that State', the present words from 'under the Government' to 'Union territory' have been sub-stituted. Nothing turns upon the amendment whfoh seeks to apply the exception in the clanse to Union territory and to remove ambiguity in language.

The clause thus enables Parliament to make law in special case prescribing any requirement as to residence within State or Union territory prior te appointment, as condition of cm· ploymcnt in the State or Union territory. Under Art. 35(a) this power is conferred upon Parliament but js denied to the Legisla· tures of the States, notwithstanding anything in the Constiru· tion, and under (b) any law in force immediately before the commencement of the Constitution in respect to the matter shall subject to the terms thereof and subject to such adaptations that may be made under Art. 372 is to continue in force until altered or repealed or amended by Parliament.

The legislative power to create residential qualification for

employment is thus exclusively conferred on Parliament. ParJia. ment can make any law which prescribes any requirement as to residence within the State or Union territory prior to employment or apJ><>inlment to an office in that State or Union territory. Two questions arise here. Firstly, whether Parliament, while pres· cribing the requirement, may prescribe the requirement of resi· dence in particular part of the State and, secondly, whether Par· liament can delegate this function by making declaration and leaving the details to be filled in by the rule making power of the Central or State Governments.

Mr. S. V. Gupte, for the petitioners, points out that the

It has ll

Constitution is speaking of State and Union territory. It has already made declaration that no person shall be disqualified for any office in the territory of India because of his residence in any particular part of India. The exception, therefore, must be viewed narrowly and not carried to excess by interpretation. The article speaks of residence in State and means only that. Il it chose to speak of residence in parts of State such as DistriellJ, r talauqas, cities, towns etc. more appropriate and specific language could have been used such as 'any requirement as to residence within that State or Union temtory or part of that State or Union tmltory'. Having used the word State, the unit State is only meant and not any part thereof. Refer~nce is made to the history of the drafting of the Article a'nd the debates in the Constituent Assembly which ~ar out this contention.

On the other hand, Mr. Setalvad bases his arguement on two things. He contends that the power is given to J>ariiamcnt to make any law and, therefore, Parliament is supreme and can mak& any law on the subject as the article says. He v«y ingeniously lhifts the emphasis to the words 'any requirement' and contends dw the requirement may be allo as to residence in the State· or any particular part ol mte.

The claim for supremacy of Parliament is misconceived. Par-liament in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitufion does not con• cede supremacy, Parliament must act within its appointed func-tions and not transgress them. What the. Constitntion says is matter for .construction of the language of the Constitution. Which is the proper construction of the two suggested ? By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, pn the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance Sta-tes into Jess developed States may have to be prevented, and residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made. Even so, that clause spoke of residence within the State. The claim of Mr. Setalvad that Par-liament can make provision regarding residence in any parti-cular part of State would render the general prohibition lose all its meaning. The words 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Co:istitution, as it stands, speaks of whole State as the v.~nue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dic-tate that narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put very wide and liberal construction upon the words 'any law' and 'any requirement'. These words are ob-F viously controlled by the words 'residence within the State or Union territory' which words mean what they say, neither more nor less. It follows, therefore, . that s. 3 of the Public Employ-ment (Requirement as to Residence) Act, 1957, in so' far as it relates to Telengana (and we say nothing about the other parts) and Ru!~ 3 of the Rules under it are ultra vires the Constitution.

In view of our conclusion on this point it is not necessary to express any opinion whether delegation to the Central and/ or State Governments to provide by rules for the further implement-ing of the law made by Parliament is valid or not.

It was argued that the Mulki Rules existing in the former Hyderabad State must continue to operate by virtue of Art. 35(b) in this area. This point is not raised by the petitions under consi-deration and no expression of opinion by us is desirable. L12 Sup CI/69--9

For the reasons given above we quash the orders passed and declare s. 3 of the Public Employment (Requirement as to Resi-dence) Act, 1957 as alo;o Rule 3 of the Rules 11/tra vi res the Co".stitution. Tile petitions shall be allowed but there shall be no order about co~ts. yp_ Petitions alloweJ.

Petitions alloweJ.