Case: The Director Of Industries &amp; Commerce. Government Of A. P., Vs. V. Venkata Reddy &amp; Ors

law then in force in any State or Union Territory by virtue of clause (b) of Article 35 of the Constitution 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, that State or Union territory, any requirement as to residence therein prior to such employment or appointment shall cease to have effect and is hereby repealed." 16. There is no doubt that the impugned Mulki Rules fall within S. 2 and if there was nothing more they would stand repealed. But the second purpose of Parliament was achieved by enacting S. 3 which provided :"3. (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 (b) any subordinate service or post under the control of the Administrator of Himachal Pradesh, Manipur or Tripura, or (c) any service or post under a local or other authority (other than a cantonment board) within the Telangana area of Andhra Pradesh or within the Union territory of Himachal Pradesh, Manipur or Tripura, any requirement as to residence within the Telengana area or the said Union Territory, as the case may be, prior to such appointment." 17. Section 4 provided for Parliamentary scrutiny of rules and S. 5 dealt with duration of rules. Section 5, as originally enacted, provided :"Section 3 and all rules made thereunder shall cease to have effect on the expiration of five years from the commencement of this Act, but such cesser shall not affect the validity of any appointment previously made in pursuance of the said rules." The words "five years" had subsequently been substituted by the words "fifteen years." 18. In pursuance of this Act certain rules, called the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959 were made. The Act and the Rules were challenged before this Court in (1970) 1 SCR 115 = AIR 1970 SC 422 . This Court held that S. 3 of the Public Employment (Requirement as to Residence) Act, 1957, insofar as it related to Telangana - we say nothing about the order parts - and R. 3 of the Rules made under this Act were ultra vires the Constitution. No opinion was expressed in this judgment on the point whether the Mulki Rules existing in the former Hyderabad State should continue to operate by virtue of Art. 35 (b). 19. It is urged before us that if S. 3 is void, so is S. 2 because Section 2 and Section 3 of the said Act from one scheme; in other words, it was not the intention of Parliament to simply repeal the existing laws in Telangana dealing with residential requirements for the purposes of appointment, the intention being to substitute other rules in place of the earlier rules.20. It is quite clear that Parliament had made up its mind that rules requiring residence as qualification for appointment to services for offices shall continue because the Public Employment Act enables the Central Government to make such rules. Not only that, but S. 5 assumes that rules will be made and it is on this assumption that S. 5 originally proceeded to give a life of five years to them from the commencement of the Act. It is impossible to read Section 5 and S. 3 together without coming to the conclusion that it was the intention of Parliament that Central Government would make the necessary rules. The Central Government also understood the intention to be the same because it acted under Section 1 (2) and S. 3 simultaneously. In other words, the date of commencement of the Act was fixed as March 21, 1959, and the rules also came into force on the same date. 21. A number of authorities of this Court and other authorities have been cited before us in order to make us determine whether S. 2 is not severable from S. 3 of the Public Employment Act. It is not necessary to refer to them here because the principles are well-known and have been re-iterated in a number of cases of this Court, including R. M. D. Chamarbaugwala v. Union of India, 1957 SCR 930 = AIR 1957 SC 628 . It seems to us that principles 1 and 3, mentioned in this judgment at p. 950 apply to the facts of this case, In our view it is clear that Parliament would not have enacted S. 2 without S. 3 as far as Telangana is concerned. The whole history of the legislation, its object title and the Preamble to it, point to that conclusion. Further, the Constitution (Seventh Amendment) Act, 1956, substituting new Article 371 for the old also shows that it was intended to give special consideration to the Telangana region. 22. We may mention that the earlier Full Bench came to the same conclusion in AIR 1971 Andh Pra 118 (FB). 23. It was urged before us that S. 2 insofar as it dealt with Telangana region cannot be given an independent existence. We are unable to accede to this.It is only a matter of drafting and if the Telangana region had been dealt with separately in a separate Act we would have had no hesitation in holding that S. 2 would fall with S. 3. The fact that S. 2 deals with laws and rules in various States would not prevent us from separating the valid portion from the invalid portion.This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that S. 2 is also bad insofar as it dealt with Telangana area. 24. We may mention that we are not concerned with the interpretation of the Mulki Rules and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench. 25.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]On this question the Judges of the Full Bench are agreed that the answer must be in the affirmative. The words "laws in force in the territory of India" in Art. 35 (b) also occur in Art. 372, which continue in force existing laws which existed not only in the Provinces of British India but in all Indian States.It would be remarkable if it were otherwise. In the context of Art. 35 (b) and Art. 372 what has to be seen is not whether the State of Hyderabad was part of the territory of India before the commencement of the Constitution but whether its territory is included in India after its commencement. The same test applies to the old provinces or part of Provinces of British India.This Courts decision in Janardan Reddy v. The State, (1950) SCR 940   = (AIR 1951 SC 124  ) on the construction of Article 136 of the Constitution proceeded on the basis that to Art. 136 "the normal mode of interpreting a legislation as prospective" should be applied. We are not concerned with any such consideration while interpreting Art. 35 (b) of the ConstitutionThis Court interpreted Art. 16 (3) in (1970) 1 SCR 115   = (AIR 1970 SC 422  ) to mean that it speaks of a whole State as the venue for residential qualifications. It cannot be said that the impugned Mulki Rules could not be provided for by Parliament under Art. 16 (3). They are with respect to the matter referred to in Art. 16 (3). Article 16 (3) confers legislative power on Parliament with respect to a matter mentioned therein. It confers no less power than Arts. 245-246 do, read with List I and List III.The impugned rules prescribed requirements as to residence within the whole of Hyderabad State and therefore are saved and continued in force by Art. 35 (b)If we were to apply the suggested principle of interpretation we would be rendering Art. 35 (b) nugatory, for ordinarily rules like the impugned rules would form part of Civil Service Regulations or laws dealing with appointments especially in the old Indian States. We must give effect to the intention clearly expressed in Art. 35 (b). The Judges of the Full Bench also came to the same conclusion and in agreement with them we hold that the impugned rules were continued in force by Art. 35 (b) of the ConstitutionThis expression equally applies to Art. 35 (a) and Art. 35 (b). In Article 35 (b) the effect of these words is not only to continue the impugned rules but to continue them until Parliament repeals, amends or alters them. It seems to us that the effect of reorganisation of States made under Arts. 3 and 4 of making Telangana a part of a new State has to be ignored under Art. 35 (b); otherwise a fundamental right conferred on persons under Art. 35 (b)- it must be remembered that Art. 35 (b) is a part of the Chapter on Fundamental Rights - would be liable to be taken away by the re-organisation of States. It cannot be denied that the purpose of reorganisation of States is not to take away fundamental rightswe are of the view that the impugned rules continued in force even after the constitution of the State of Andhra Pradesh under the Re-organisation of States Act, 1956The object, it is clear from this recital, is two-fold; one, to make provisions in pursuance of Art. 16 (3) and, two, to repeal the existing laws relevant thereto. The Act did not come into force immediately because it provided in S. 1 (2) that it shall come into force on such date as the Central Government may by notification in the official gazette appointIt is quite clear that Parliament had made up its mind that rules requiring residence as qualification for appointment to services for offices shall continue because the Public Employment Act enables the Central Government to make such rules. Not only that, but S. 5 assumes that rules will be made and it is on this assumption that S. 5 originally proceeded to give a life of five years to them from the commencement of the Act. It is impossible to read Section 5 and S. 3 together without coming to the conclusion that it was the intention of Parliament that Central Government would make the necessary rules. The Central Government also understood the intention to be the same because it acted under Section 1 (2) and S. 3 simultaneously. In other words, the date of commencement of the Act was fixed as March 21, 1959, and the rules also came into force on the same dateWe are unable to accede to this.It is only a matter of drafting and if the Telangana region had been dealt with separately in a separate Act we would have had no hesitation in holding that S. 2 would fall with S. 3. The fact that S. 2 deals with laws and rules in various States would not prevent us from separating the valid portion from the invalid portion.This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that S. 2 is also bad insofar as it dealt with Telangana areaWe may mention that we are not concerned with the interpretation of the Mulki Rules and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench.