Case: A. V. S. Narasimha Rao And Others Vs. The State Of Andhra Pradesh And Another

1. 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 a decision that to implement what are called Telangana Safeguards, the following measures should benon-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 employment in the Andhra region without break in service and by creating supernumerary posts, if necessary.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 proforma and they were to be employed in the Andhra region without breaking 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 Section 3 ofthe Public Employment (Requirement as to Residence) Act, 1957 (44 of 1957) which was an Act of Parliament made in pursuance of Clause (3) of Article 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. ItPower 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 Telangana area or the said Union Territory as the case may be, prior to such appointment.(2) In this section,-(a) * * * * * ** * * * * *(b) "Telangana area" comprises all the territories specified in sub-section (1) of Section 8 of the States Reorganisation ActSection 4, the Rules had to be laid before each House of Parliament for a period of not less than 30 days and Parliament could make such alterations as it liked. Under Section 5 of 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 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 3Requirement as a 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 preceding 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 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 filed by direct recruitment;Provided further that any period of temporary absence from the Telengana area of 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 person 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 Article 16 (3) under which the Act and the rules purpose 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 Section 3 of the Act is challenged as ultra vires the Constitution.

Reasoning: 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, Taluqas, 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 mean 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.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 advanced 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 Section 3 ofthe 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.