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

1. This appeal by certificate granted by the High Court of Andhra Pradesh is directed against the judgment of the High Court, D/- 18-2-1972, passed in Writ Appeal No. 633 of 1970 = (reported in (1973) 1 Andh LT 1 (FB) ) which arose out of the order of the High Court of Andhra Pradesh, dated July 9, 1969, in Writ Petition No. 2524 of 1967. Before the Division Bench of the High Court the Full Bench judgment of the High Court dated December 9, 1970 (P. L. Rao v. State of Andhra Pradesh, AIR 1971 Andh Pra 118 (FB) ) was cited but as this Full Bench decision was challenged before it and it thought that a reference of the matter to a Full Bench of five Judges is advisable it directed that the papers be laid before the Honble the Chief Justice of the High Court for constitution of a larger Bench. The Chief Justice of the High Court accordingly constituted the Full Bench of five Judges. This Full Bench, by majority, held that:"the mulki rules are not valid and operative after the formation of the State of Andhra Pradesh. In any event, they do not revive and cannot be deemed to be valid and operative in view of the decision of the Supreme Court in A. V. S. Narasimha Raos case, AIR 1970 SC 422   = (1970) 1 SCR 115.   The Full Bench decision in P. Lakshmana Raos case, AIR 1971 Andh Pra 118 (FB) is thus overruled. W. A. No. 633 of 1970 along with W. A. M. P. Nos. 493 and 494 of 1971 will be posted before the Division Bench for further orders."g this opinion, the Division Bench delivered the following judgment :"We have already indicated in the order of reference that if a reference to Full Bench is made, and if the decision of the Mulki Rules are not operative, then the appeal has to be allowed. Having regard to the direction previously given by us in the order of reference, and in the light of the decision of the Full Bench, the Writ Appeal has to be allowed. We accordingly allow the Writ Appeal with costs."

Reasoning:
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.