Full Judgment Text
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PETITIONER:
A. V. S. NARASIMHA RAO AND OTHERS
Vs.
RESPONDENT:
THE STATE OF ANDHRA PRADESH AND ANOTHER
DATE OF JUDGMENT:
28/03/1969
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
GROVER, A.N.
CITATION:
1970 AIR 422 1970 SCR (1) 115
1969 SCC (1) 839
CITATOR INFO :
RF 1973 SC 827 (1,15,22)
RF 1979 SC 193 (69)
RF 1986 SC 3 (224)
D 1987 SC 663 (1)
ACT:
Constitution of India, Art. 16(3)-Requirement as to
residence in a part of a State-If valid.
Public Employment (Requirement as to Residence) Act, 1957,
s. 3 Application to Telengana Area-Validity.
Andhra Pradesh Public Employment (Requirement as to
Residence) Rule, 1959, r. 3-Validity.
HEADNOTE:
The Parliament enacted the Public Employment (Requirement as
to Residence) Act, 1957 in pursuance of cl. (3) of Art. 16
of the Constitution of India making special provision for
requirement as to residence in public employment. Section 3
of the Act gave the power to make rules in respect of
certain classes of employment in certain areas, and accord-
ingly the Andhra Pradesh Public Employment (Requirement as
to Residence) 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 a petition
under Art. 32 of the Constitution challenging the Act, the
Rules and the order as ultra vires the Constitution.
Quashing the order, this Court,
HELD : Section 3 of the Public Employment (Requirement as to
Residence) Act, 1957 in so far as it related to, Telengana
and Rule 3 of other Rules under it were ultra vires the
Constitution. [122 A]
Clause (3) of Art. 16 of the Constitution enables Parliament
to make a law in a special case prescribing any requirement
as to residence within a State or Union Territory prior to
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appointment, in the State or Union Territory. The provision
speaks of a whole State as the venue for residential
qualification and it is impossible to think that the
Constituent Assembly was thinking of residence in Districts,
Talukas, cities, towns or villages. The fact that the
clause is an exception and came as an amendment must dictate
that a 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]
116
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 65 of 1969.
Petition under Art. 32 of the Constitution of India for
enforcement of fundamental rights.
S. V. Gupte, P. A. Choudhury and K. Rajendra Chaudhuri,
for the petitioners.
M. C. Setalvad, P. Ramachandra, Rao, Advocate-General,
Andhra Pradesh, A. Raghubir and A. V. Rangam, for respondent
No. 1.
M. C. Setalvad and R. N. Sachthey, for respondent No. 2.
R. V. Pillai, H. S. Gururai Rao and Subodh Markandeya, for
respondents Nos. 3 to 45.
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 interveners.
The Judgment of the Court 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,
leaders, of all political parties in the Legislature of the
Andhra Pradesh State appeared to have met and reached the
decision that to Implement what are called Telengana
Safeguards’, the following measures should be taken :
"All non-domicile persons, who have been
appointed either directly, by promotion or by
transfer to posts reserved under the Andhra
Pradesh Public Employment (Requirement as to
Residence) Rules, 1959 for domiciles of
Telengana region will be immediately relieved
from service. The posts so rendered vacant
will be filled by qualified candidates
possessing domicile qualifications and in
cases where such candidates are not available
the posts shall be left unfilled till
qualified domicile candidates become available
Action on the -above lines will be taken
immediately.
All non-domicile employees so relieved shall
be provided employment in the Andhra region
without break in service and by creating
supernumerary posts, if necessary."
117
The Government of Andhra 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
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reserved for domiciles of Telengana under the Andhra Pradesh
Public Employment (Requirement as to Residence) Rules, 1959.
Names of such incumbents were to be shown in a proforma and
they were to be employed in the Andhra region without break
in service by creating supernumerary posts, if necessary.
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 to Residence Act, 1957 (44 of
1957) which was an Act of Parliament made in pursuance of
cl. (3) of Art. 16 of the Constitution 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 of
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 Official 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
Telengana area or the said Union territory as
the case may be, prior to such appointment.
(2) In this section,-
(a)..............................
(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 a period of not less than 30 d s and
Parliament could make such alterations as it liked. Under
S. 5 the Rules had a life of 5 years but by subsequent
legislation the period was extended to 10 years. It is said
that the period
118
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
Appointment :
A person shall not be eligible for appointment
to a post within the Telengana area under the
State Government of Andhra Pradesh or to a
post under a local authority (other than a
cantonment board) in the said area unless-
(i)he has been continuously residing within
the said area for a period of not less than
fifteen years immediately preceeding the
prescribed date; and
(ii)he produces before the appointing
authority ,concerned, if so required by it, a
certificate of eligibility granted under these
rules;
Provided that in relation to posts in the
Secretariat Departments and the Offices of the
Heads of Departments of the State Government
of Andhra Pradesh situated in the cities of
Hyderabad and Secunderabad, the requirement as
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to residence laid down in this rule shall
apply to the filling of only the second
vacancy in every unit of three vacancies which
are to be filled by direct requirement;
Provided further that any period of temporary
absence 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 a 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 a
power to make, a law prescribing requirement as to residence
in a part of a State. For this reason S. 3 of the Act is
challenged as ultra vires the Constitution.
119
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 appointment 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
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)........................
(5)......................
The question is one of construction of this article,
particularly of the first three clauses, to find out the
ambit of the law taking power of Parliament. The first
clause emphasises that ware shall be in India equality of
opportunity for all citizens in matters of employment or
appointment to any office under the late. The word ’State’
here is to be understood in the extended use given to it by
the definition of that word Art. 12. The second clause then
specifies a prohibition against discrimination only on the
grounds of religion, race, sex, descent, place of birth,
residence or any of them. The intention here is make every
office or employment open and available to every citizen,
and inter alia to make offices or employment in one part
India open to citizens in all other-parts of India. The
third pause then makes an exception. This clause was
amended by the Constitution (Seventh Amendment) Act, 1956.
For the original 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 substituted.
Nothing turns upon the amendment which seeks to apply of
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the exception in the clause to Union territory and to remove
ambiguity in language.
120
The clause thus enables Parliament to make a law in a
special case prescribing any requirement As to residence
within a State or Union territory prior to appointment, as a
condition of employment in the State or Union territory.
Under Art. 35(a) this power is conferred upon Parliament but
is denied to the Legislatures of the States, notwithstanding
anything in the Constitution, 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.
Parliament can make any law which prescribes. any
requirement as to residence within the State or Union
territory prior to employment or appointment to an office in
that State or Union territory. Two questions arise here.
Firstly, whether Parliament’, while prescribing the
requirement, may prescribe the requirement of residence in a
particular part of the State and, secondly, whether Par-
liament can delegate this function by making a 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
;Constitution is speaking of State and Union territory. It
has already made a 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 a State and means only that. If it chose to
speak of residence in parts of State such as Districts,
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 territory or part of
that State or Union territory’. Having used the word State,
the unit State is only meant and not any part thereof.
Reference is made to the history of the drafting of the
Article and the debates in the Constituent Assembly which
bear out this contention.
On the other hand, Mr. Setalvad bases his argument on two
things. He contends that the power is given to Parliament
to make any law and, therefore, Parliament is supreme and
can make any law on the subject as the article says. He
very ingeniously shifts the emphasis to the words ’any
requirement’ and contends that the requirement may be also
as to residence in the State or any particular part of
state.
121
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 Constitution
does not concede supremacy, Parliament must, act within its
appointed functions and not transgress them. What the
Constitution says is a 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, on the ground of
residence. Realising, however, that sometimes local
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sentiments may have to be respected or sometimes an inroad
from more advance States into less developed States may have
to be prevented, and a 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 Parliament
can make a provision regarding residence in any particular
part of a 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 Constitution,
as it stands, speaks of a whole State as the venue 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 dictate that a 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 a very wide and
liberal construction upon the words ’any law’ and ’any
requirement’. These words are obviously 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 Employment
(Requirement as to Residence) Act, 1957, in so far as it
relates to Telengana (and we say nothing about the other
parts) and Rule 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
implementing 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 consideration and no expression of opinion
by us ’is desirable.
L12 Sup Cl/69-9
122
For the reasons given above we quash the orders passed and
declare s. 3 of the Public Employment (Requirement as to
Residence) Act, 1957 as also Rule 3 of the Rules ultra vires
the Constitution. The petitions shall be allowed but there
shall be no order about costs.
Y. P. Petitions allowed.
123