A. V. S. Narasimha Rao & Ors Vs.
The State of Andhra Pradesh & ANR  INSC 94 (28 March 1969)
28/03/1969 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1970 AIR 422 1970 SCR (1) 115 1969
SCC (1) 839
RF 1973 SC 827 (1,15,22) RF 1979 SC 193 (69)
RF 1986 SC 3 (224) D 1987 SC 663 (1)
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.
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 accordingly
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 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
ORIGINAL JURISDICTION: Writ Petition No. 65
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
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 respondent No. 46.
P. A. Choudhury, K. Rajendra Chaudhuri and C.
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 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 Performa 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
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 preceding the
prescribed date; and (ii)he produces before the appointing authority
,concerned, if so required by it, a certificate of eligibility granted under
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 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
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)
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
Nothing turns upon the amendment which seeks
to apply of 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 Parliament 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
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. Parliament 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 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
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
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
Y. P. Petitions allowed.