THE DIRECTOR OF INDUSTRIES & COMMERCE, GOVERNMENT OF A.P., HYDERABAD & ANOTHER versus V. VENKATA REDDY & ORS.

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THE DIRECTOR OF INDUSTRIES & COMMERCE, GOVERNMENT OF A P., HYDERABAD & ANOTHER v. V. VENKATA REDDY & ORS. October 3, 1972 [S. l\l. SIKRI, C.J., A. N. RAY, I. D. DUA, D. G. PALEKAR AND M. H. BEG, JJ.l

Hyderabad Ci\·if Service Regulations pro1nulgated by Ni::.anz's Finnan l(b) in force' at con1n1ence111ent of Constitution

dated 25th Ramzan 1337H-Mulki Ru/es-Validity of-Ruie and r. 3 whether 'latt•s Wherlier continued in force by Arr 35(b) of the Constitution-Whether continlle in force under Re-organisation of States Act 1956--Whether repealed by s. 2 of Public Employn1ent (Requiren1e11t as to Reside11ce) Act 1957.

The Mulki Rules promulgated by the Nizam of Hyderabad before the merger of thae State with Indlia laid down certain qualifications as to residence in the State for the purpose of appoinment to the State services. After the States Reorganisation Act 1956 the Telangana area of Hyderabad State and the State of Andhra were combinecl to form th< new State of Andhra Pradesh. The respondents who were officers in in Andhrn Pradesh and were adversely the Department of Industries affected by the M ulki Rules filecl writ petitions in the High Court cha.Wenging the validity of the said Rules. The High Court, held these In appeal to this Court by certificate the questions whiah to be invalid. arise for decision were : (I) Were r. l(b) read with r. 3 of the Mulki Rules and Art. 39 of the Constitution, laws in force· immediately before the commencement of the Constitution in the territory of India ? (ii) Were they continued the Consti tution? (iii) Did they continue in force after the Constitution of the State of Andhra Pradesh under the Reorganisation of States Act, 1956? (iv) Did they continue or tbey stand repealed by s. 2 of the Public Employment (Requirement as to Residence) Act 1957, notwithstanding that s. 3 of the said Aclt was declared void in so far as it dealt with Telengana?

35(b) of

by, Art.

force

it>

Allowin.g the appeal,

HELD : i) The words "laws in force in the territory of Incfa" in Art. 35(b) also occur in Art. 372 which continue in force existing Ia\\o·s which existed not only in the Provinces of British India but in all In the con Indian States. It would be remarkable if it were otherwioo. text of 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 Con stitution but whether its territory is inch1ded in India after its comn1ence ment. The same test applies to the old Pro";nces or part of Provinces of British India. [569H]

Janardan Reddy v. The State .. r1950] S.C.R. 940, distinguished.

(ii) This Court interpreted Art. 16(3) in Narasimha Rao's case to mean that it speaks of a whole State as the venue for residential qualifi It cannot be said that the impugned Mulki Rules rould not cations. 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 le~islative It power on Parliament with respect to a matter mentioned thcre~n.

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DIRECTOR INDUSTRIES & COM. v. V. V. REDDY (Sikri, C.J.) 563

confers no less power than Arts. 245-246 do, read with List I and List III. The in1pugned rules prescribed requirements as to residence within the \vhole of 1-:lyde·rabad State and therefore are saved and continued in force by Art. 35(b). Merely because eertain other Mulki Rules be came vpid on the commencement of the Constitution the impugned rules could not be said to have also become void because Art. 35 (b) expressly saves laws like the impugned rules. Effect must be given to the intention clearly expressed in Art. 35(b). [570E]

Narasimha Rao v. The State of Andhra Pradesh,

115, applied.

J 1970] J S.C.R.

(iii) The impugned rules continued in force even after the constitullon of the State of. Andhra Pradesh under the Re-0rganisation of the States Act, 1956.

On the terms of Art 35(b) the only proper question to be asked is: "Has ParJiament in exercise of its powers under Art. 35(b), read with Art. 16(3). altered or repealed or amended the impugned rules r· That this is the proper question follow. from the words "notwithstanding anything in the Constitution". Tfiis expression equally applies to Art. 35(a) and Art. 35(b). In Art. 35(b) the effect of these words is not onJv to continue the impugned rules but to continue them until Parlia It seems to us that the effect of ment repeals, amends or alters them.. reorganisation of States made under Arts. 3 and 4 of making Telengana 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 nlust be rcn1embcred that Art~ 35(b) is a part of the Chapter on Fundamental Rights-would be Jioble to be taken away by reorganisation of States. Jt cannor be denied that the purpose of reorganisation of States is not to take away fundamental rights. [571C]

th,e

(iv) Secion 2 of the Public Employment (Requirement as to Rsidence) Act 1957 Act is not severable from s. 3 which was stmck by the Court in Narasilnha Rao's case.

It is clear that Parliament would not !\ave enacted s. 2 without s. 3 as far as Telengana is concerned. The whole history Qf the legislation its object ti~e and the Preamble to it point to that conclusion. Further, the Constitution (Seventh Amendment) Act 1956, substituting Art. 371 for the old also shows that it was intended to give spedal consideration to the Telengana region. [5730-H]

Principles laid down in R.MJJ. Cha1narbaugn•ala v. Union of Tndia,

[ 1957] S. C.R. 930. held applicable.

The contention that s. 2 insofar as it dealt with Telengana region cannot be given an independent existence was not acceptable. It is only a matter of drafting and if the Telengana. region had been dealt with separately in a separate act it could without hesitation be held that s. 2 would fall with s. 3. The fact that s. 2 deals with lawii and rules in various Stotes '.\·otild not prevent the separation o'f the valid portion from the inv':llid portion. This Court specifically held in Narasi111ha Roo's c11se that s. 3 \Vas had insofar as it r.lealt \vith the Telengan·a region. Section 2 must al"io he hc!d t0 he hr:.J insofar as it dealt \Vith Telengana area. [574B]

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(v) \Vhetller the T\.1ulki Rules were unjust to the respondents was a n11.Hter for Parliament to decide. This Court \\'as onlv concerned \\'ith their Yalidity

[574E]

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564

SUPREME COURT REPORTS

[1973] 2 s.c.R.

CIVIL APPELLATE JURISD!CT: Civil Appeal No. 993 of

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1972.

Appeal by certificate from the judgment and order dateu February 18, 1972 of the Andhra Pradesh High Court at Hydera bad in Writ Appeal No. 633 of 1970.

M. C. Chag/a, K. V. Narasinga Rao and P. Parameslnvara Rao,

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for appellant No. 1.

C. K. Daphtary, K. V. Nardsinga Rao and P. Pararneshwara

Rao, for appellant No. 2.

P. A. Clwudhry and K. Rajendra Chaudhry, for respondents

Nos. 1 and 5-7.

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H. S. Gururaja Rao and S. Markandey, for interveners.

The Judgment of the Court was delivered by

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S1KRI, C.J.-This appeal by certificate granted by the High Court of Andhra Pradesh is directed against the judgment of the High Court, dated February 18, 1972, passed in Writ Appeal No. 633 of 1970, 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 Decembier 9, 1970 (P. l. Rao v. State of Andhra Pradesh(') was cited, but as this Full Bench decision was challenged before it and it thought E. tha1 a reference of. the matte( to a Full Bench of five judges is advisable it directed that the papers be laid before the Hon'ble larger the Chief Justice of the High Court for constitution of a Bench. The Chief Justice of the High Court accordingly consti tuted •the Full Bench of five Judges. Th'.s Full Bench, by majority, held that 'the mulki ·rules are not valid and operative In any after the formation of the State of Andhra Pradesh. 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 Rao's case( 2 ). The Full Bench decision in P. Laksh mana Rao's case(') 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."

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Receiving this opinion, the Division Bench delivered

fol!owing 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 Full Bench is to the effect that the Mulki il) A.LR. 1971 A.P. 118.

(2)

[1970] I S.C.R. 115

the

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DIRECTOR INDUSTRIES & COM. V. V. V. REDDY (Sikri, C.J.) 5 65

Rules are not operative, then appeal has to be allowed. Having regard to the direction previously given bty 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."

In rhis appeal we are thus concerned with the validity of the 1

so-called Mulki Rules. Before dealing with the questions oi law which have been debated before us it is necessiuy to give a few relevant facts. Writ Petition No, 2524 of 1967 out of which the pre.ient appeal arises was filed by 12 Extension Officers in the Department of Industries, Government of Andhra Pradesh. They were appointed as Extension Officers in May, 1961, and after Ibey underwent training, were posted in various districts. The strength of the cadre c{ Extension Officers was reduced and that led to the retrenchment of some of the personnel including the petitioners, who were absorbed in another cadre, viz., ,Senior Inspectors. This absorption resulted in diminution in their scale of pay. Their grievance was that pel'Sons appointed later and juniors to them in service were retained as g.J.ttension Officers, whereas they, by an order dated September 28, 1967, were retrenched and that, instead of following the rule 'last come, first go', the juniors in rank were sought to be retained as Extension Officers by reason cf their residence in Telengana area and that such a preferential treatment on the b>tsis of residential qualifi- . cation is discriminatory and violative of Art. l6 of the Constitu

tution.

It was admitted in the counter affidavit of the Government that "ex~ept the Telengana employees who weie posted only in Telengana region, and to which Andhra Personnel cannot be posted", no juniors of the petitioners were allowed to continue-in their posts in preference to the rights of the petitioners.

The Mulki Rules formed part of the Hyderabad Civil Service Regulaions promulgated in obedience to His Exalted Highness the Nizam's Firman dated 25th Ramzan 1337H. The State of Hyderabad was 1hen a native Indian State which had not acceed ed to the Dominion of India after the Indian Independence Act, 1947. Chapter III oi the Regu!ations contained article 39 which reads as follows :

"39. No person will be appointed in any Superior or Inferior service without the specific sanction of His Exalted Highness, if he is not a Mulki in terms of the rules laid down in Appendix 'N'. Any person whose domicile is cancelled under para 9 of the Mulki rules, will be cor.sidered to have been dismissed from his post from the date of such cancellation."

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SUPREME COURT REPORTS

[1973] 2 s.c.R.

The following rules in Appendix 'N' may be set out :

"!. A person shall be called a Mulki i.f-

(a) by birth he is a subject of the Hyderabad State,

or

(b.) by residence in the Hyderabad State he has

been entitled to be Mulki, or

( c) his father having completed 15 years of service was in the Government service at the time of his birth, or .

( d) she is a wife of a person who is a Mulki.

3. A person shall be called a Mulki who has a perm ment reside~e in the Hyderabad State for at least 15 years and has abandoned the idea of returning to the place of his previous residence and has obtained an affidavit to that effect on a pres cribed form attested by a Magistrate.

Rule 7 prescribes he contents of the application to be made for grant of a Mulki certificate and required the applicant. among - other things, to say: "(a) (b)

............

(c) ........... . (d) Where was he residing prior to his residin.g in

th Hyderabad State .

• ( e) Place of birth and nationality of his father and

grandfather. ............

(f)

(g)

(h)

From what period the applicant is permanently residing in ~he Hyderabad State and whether he has abandoned the idea of returning to his native land, (i) ........... . ( i) Has the applicant's father or he himself created such connections within the Hyderabad State. they have made which lead to believe Hyderabad State their native land."

that

Rul.e 9 reads as follows :

"Governmen<t in the Police Department may caned any Mulki certificate if the Government finds that any the Mulki of the entries made in the application

for

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DIRECTOR INDUSTRIES & COM. V. V, V. REDDV (Sikri, C.J.) 567

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that

certificate under Rule 7 is not correct or it was obtained by false personation or false statements and it may cancel certificates of persons mentioned in clauses (b), (c) and (d) of Rule 1 if the holder of the Mulki certificate is disloyal the Hyderabad Government in his conduct or behaviour or is directly or indirectly connected with such political : :tivities which are detrimental or contrary tq the inte rest of the Hyderabad Government."

to H.E.H. or

The Constitution of India came into force on January 26, 1950, except the parts which had been enforced earlier. The relevant articles for our purposes are Arts. 13, 14, 16 and 35.

The conditions as ~hey prevailed in the Hyderabad State have been summarised by Madhava Reddy, J ., in his judgment.in the Full Bench, and we may usefully this summary bere :

reproduce

"Hyderabad State was one among . the several other Princely States of India. Due to Political condi tions and Historical reasons the State remained isolated. There were no adequate Educational facilities afforded there were to the People of the State, in the result, very few opportunities available to the people of the in competition with ReJ?;ion to enter public service others from outside the State. Another contributing factor in this behalf was the use of Urdu, which was not the languagr. of nearly ninety per cent of 'the people, as the Official Language in the entire admini's tration of Hycforabad state. Similar conditions pre vailed in a few other states as well. So much so, that these people were not in a position to compete with others in the n:atter of employment even in their own state, if no protection was afforded to them in this be half on the basis of residence within that State."

In view of these conditions, Madhava Reddy, J., fu~ther stated tha1 "the Constituent Assembly while guaranteeing· fundamental rights in the matter of employment under the State, took notice the development of various States of this vast disparity and felt it imperative to continue that proteC'tion in the matter of employment afforded on the basis of residence within the State and made provision under Article 33(b) of the Constitution for the continuance of those laws."

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A few more historical facts· may also be noticed here. The States Re-organisation Commission set up by the Central Go ver'lment recommended the disintegration of the Hyderabad State and suggested 1he continuance of the Telengana region of the

568

SUPREME COURT REPORTS

[1973] 2 S.C.R.

Hyderabad St<Jite as a separate State. However, an agreement was reached by the elders of the Andhra & Telengana Regions, among whom were the Chitf Miniser and ithe Dy. Chief Minister of the State. of Andhra and 'the Chief Minister, Revenue Minister and the some other Mjnisters of the Hyderabad State amongst whom one later became the firnt Chief Minister and most others mem bers of the first Council of Ministers of the State of Andhra Pradesh with a view to allay the fears of the people of this under developed Re2ion and to reserve to them the benefit of securing employment in the Region on the strength of their residence. For safeguarding their legitimate interests in certain matters ithe for mation of a Regional .Standing Committee of the State Assembly consisting of the members of the State Assembly of this Region was also agreed upon.

We may mention tha: in this agreement in clause B Domicile

Rules were dealt with as follows :

"B. A temporary provision will be made to ensure that for a period of five years. Telengana is regarded as a unit as far as recruitment to subordinate services in the area is concerned; posts borne on the cadre of these 1ervices may be reserved for being filled by per sons who satisfy the domicile conditions as prescribed under the existing Hyderabad Rules".

Parliament, in effect, gave statutory recognition to this agree by makirig the necessary constitutional amendment in: Art. 371 providing for the constitution of the Telengana Regional Com mittee. The Constitution (Seventh Amendm~nt) Act, 1956. inter alia, substituted a new article 371 for the old. the relevant part of which reads as follows :

"371. Special provision with respect to the States of Andhra Pradesh. Punjab and Bombay.-(1) NO'twith standing anythin.g in this Constitution, the President may, by order made with respect to 'the State of Andhra Pradesh .... provide tor the constitution and functions of regional conrn1itt>~es of the Legislaitive Assembly of the State. for the modifications to be made in the rules of business of the Government and in the rules of pro cedure of the Legislative Assembly of the State and for any special responsibility of the Governor in order to secure the proper functioning of the regional committees.''

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The State of Andhra Pradesh was reconstituted on November 3. 1956.

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We mav now rd'er to t'ie attempts made to safeguard and apply the Mulki Rules. Appendix 'N' of the Hyderabad Civil

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DIRECTOR INDUSTRIES & COM. V. V. V. REDDY (Sikri, CJ.) 569

Service Re211lation was amended and an explanation was inserted, which reads :

"Explanation : Tue above Mulki Rules shall be read in conjunction with the clarifications contained in the following circular letters and Notification issued by the Government of Hyderabad in the General Admi nistration Department (reproduced)."

One of the circular letters dated June 14, 1950 briefly stated : " .... Government is now advised that the Mulki inconsistency Rules are save to the extent of with the Constitution of India saved by clause (b). of art. 3 5. It is, therefore, necessary to put out of operallon 1he requirements laid down by the Mulki Rules to the extent that they prescribe qualifications regarding Birth and D.!scent .... "

their

Another circular letter dated September 18. 1951, stated that the Government had decided that "the period of Fifteen Years' Resi dence prescribed in the existing Mulki Rules, should be 'con tinuous' with the proviso that periods spent outside the State for educational or medical purposes will not count as a 'break' in this period of 15 vears, where permanent residence has been and con tinues to be in Hyderabad State."

The folowing questions emerge from the submissions of the

learned counsel before us :

1. Were r. 1 (b). read with r. 3, of the Mulki Rules -hereinafter referred to as the impugned Mulki Rules -and art. 39 laws in force immediately before th! commencement oi •the Constitution in the territory of India '

2. Were they continued in force by art. 35(b) of

the Constitution ·)

Cl. Did they continue in force after 'the constitution of the State of Andhra Pradesh under the Re-organisa tion of States Act, 1956 ?

4. Did 'they stand repealed by s. 2 of the Public Employment (Requirement as to Residence l Act, 1957 (Act 44 of 1957) notwithstanding that s. 3 of the said Act was declared void in so it dealt with Telengaiia?

far as

.. ,.

We will deal with these questions one by one. The first ques tion is easy to answer. On this question the Judges of the Full Bench are agreed that the answer must be in the affirmative The word< ''laws in force in the territory of India" in art. 35 (b)

570

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[1973] 2 S.C.R.

.also occur in art. 372, which continue in force existin~ lawi. which existed not only in the Provinces of British India but in all Indian States. It would b.e remarkable if it were otherwise. In the context of art. 35 (b) and art. 372 wha•t has to be seen is not whether the State of Hyderabad was part of the territory of India be.fore the commencement of the Consti1ution 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 Court's decision in Janardan Reddy v. The State(') on the con_struction of art. 136 of the Constitution proceeded on the basis that to art. 136 "the nonnal mode of interpreting a legislation as prospective"' should be applied. We are not con cerned with any such consideration while interpreting art. 35 (b) of the Constitution.

ii

the

Constitution

the commencement

The second question also does not give much difficulty. Artid~ 35 (b), in terms, saves any Jaw in force immediately if it .before of it is a law "with respect to" a matter referred to in art. 3 5 I a) (i). The matter referred to for our purposes is a matter under cl. ( 3) of art. 16 which may be provided for by law made by Parliament. What is then the matter that can be provided for under art. 16( 3)? residence within a State The matter is "any requirement as to in regard to class or class·~s of employment or appointment to an office under the Government or any local or other authority". This Court interpreted art. 16 ( 3) in Narasimha Rao v. The State of A ndhra Pradesh (2) to mean that it speaks of a whole State as It cannot be· said the venue for residential qualifications. 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) confurs legisiative power on Parliament with respect to a matter mentioned there It confers no Jess power than arts. 245-246 do, read with in. List I and List II. The impugned rules prescribed requirements as to residence within the whole of Hyderabad State and there fore are saved and continued in forc.e by art. 35(b).

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Irt was, however, urged that the impugned rules formed part ·of a number of other rules which became void on the commence ment of the Constitution; all the Mulki rules constituted one integrated scheme regulating appointments to services and posts 1mder the old Hyderabad State and; if the other rules are void the impugned rules would also fall. But this principle of inter pretation cannot be applied to art. 35 (b), for it expressly saves If we were to apply the laws lik(! the impugned Mulki Ryles. suggeSted principle of interpretation we wo!-lld be rendenng art. 35(b) nugatory, for ordinarily rules like the impu.rned rules would

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(I) [1950] S.C.R. 940.

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[19'10] 1 S.C.R. 115.

DIRECTOR INDUSTRIES & COM. I'. V. \'. REDDY (Sikri, C.J.) 571

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form p?:t of Civil Service Regulations or laws dealing with appointments especially in the old Indian States. We must give in art. 35 ( b). The effect to the intention clearly expressed Judge; of the Full Bench also came to the same conclusion and. in agreem·~nt with them we hold that the impugned rules w~re continued in force by art. 35 (b) of the ConS'litution.

The third question is not so easy to answer as divergent views have been expressed by Judges of the Andhra Pradesh High It seems to us that here too we must give effect to the· Court. intention of the founders of the Constitution as evinced in art. 35 (b I. On the terms of art. 35 (b) the only proper question to be asked is : "Has Parliament in exercise of its power under art. 35(b), read with art. 16(3), altered or repealed or amended the impugned rules ?". That this is the proper question follows from the words "notwithstanding anything in the Constitution". This expression equally applies to art. 35(a) and art. 35(b). [n art. 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. re organisation of States made under arts. 3 and 4 of making Telengana 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 It cannot be denied that away by the re-organisation of States. the purpose of reorganisation of States is not to take away funda mental rights.

It seems to us that the effect of

Accordingly we are of the view that the impugned rules conti nued in force even after the constitution of the State of Andhra Prad·~sh under the Re-organisation of States Act, 1956.

The fourth question again is not free from difficulty.

In this connection it is necessary to give a few more facts and the pro visions of the Public Employment (Requirement as to Residence) Act, 1957. This Act received the assent of the President on December 7, 1957. The Preamble reads :

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(3) of "An act to make in pursuance of clause fbr Article 16 of the Constitution special provisions requirement as 'to residence in regard to certain clauses of public employment in certain areas and to rnpeal ex is tin!! laws prescribing any such reauirement."

The object it is clear from his recital, is two-fold; one, to make provisfons in pursuance of art. 16(3) aHd, two. to repeal the exis tin!! laws relevant thereto. The Act did not come into force im mediatelv because it provided in s. I (2) that it shall come into force on such date as the Central Government may by notification

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SUPREME COURT REPORTS

[1973] 2 s.c.R.

in ~he official gazette appoint. Section 2 contained the repi:al clause and it is in the following terms :

"2. Upon the commencement of this Act, any law then in force in any State or Union territory by virture of clause ( b J of Article 35 of the Constituion prescribing in regard to a class or classes of employment or appoint ment to an of!ic1~ 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."

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. (I) The Central Government may by notification in the Official Gazette, make rules prescribing, in regard to appointments t~

(a) any subordinate service or post under the State

Government of Andhra Pradesh, or

(b) any subordinate service or post under the con trol of the Administrator of Himachd Pradesh, Manipur or Tripura, or

( c) any service or post under a local or other authority (other than a cantonment board) within the Telengana area of Andhra Pradesh territory oi Himachal or within the Union Pradesh, Manipur or Tripura,

any requirement as to residence within the Telengana area or the saicl. Union territory, as the case may be, prior to such appoinment."

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

shall cease to have effect on the expiration of five years from the commencement of this Act, but such cesser shall nN effect the validity of any appointment previously m;.Je in pursuance of the said rules.

thereunder

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The words "five years" had subsequently been substituted by the words "fifteen years."

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IQ pursuance of this Act certain rules, called the Andhra (Requirement as to Residence)

Pradesh Public Employment

DIRECTOR INDUSTRIES & COM. r. \'. V. REDDY (Sikri, C.J.) ;.7 :1

A Rules, 1959 were made. The Act and the Rules were challen ged before this Court in Narafimha Rao v. Stare of Andlira Pradesh('). This Court held that s. 3 of the Public Employmeni (Requirement as to Residence) Act, 1957, insofar as i1 related to Telengana-we say nothing ab::iut the other parts--and L 3 of the Rules made under this Act were 11/rra i·ires the Const1tu- tion.

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No opinion was expressed in ·this judgment on the point whe

ther the Mulki Rules existing in should coniinue to operate by virtue of art. 35 ( b).

the fonner Hyderabad State .

Ii is urged before us that if s. 3 is void. so is s. 2 because s. 2 ands. 3 ut ihe said Act form, one scheme; in other words, it was n01 the intention of Parliament to simply repeal the existing laws in Tel engana dealing with residential requirements for the purposes of appointment. the intention being to substitute other rules in plt!ce of the earlier rules.

It is quite clear that Parliament had made up its mind that rules requiring residence as qualificaiion for appointment to ser vices or offices shall continue because 1he PuWic 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 It is five years to them from the commncement of impossible to read s. 5 and s. 3 1ogether with0ut coming to the conclusion that it was the intention of Parliament that Central rules. The Central Government would make the necessary Government also understood the intention to ~ the same because In other .i1 acted under sub-s.1 (2) and s. 3 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.

simultaneously.

the Act.

A number of authorities of this Court and other authorities have been cited before us in order to enable us determine whet· her 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. Chamarbau~wala v. Union of India(') H seems to us that ~principles l and 3, ~entioned in this judgment at page 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 Telengana is concerned. The whole history of the legislation, its object, title and the Preamble to it. point to that conclusion. (Seventh Amendment) Act. 1956. Further, the Constitution

(!) [!970] t S.C.R. 115.

12)

[t957] S.C.R. 930.

c

D

E

F

G

H

A

B

574

SUPREME COURT REPORTS

(1973] 2 S.C.R.

sub~tituting new article 371 for the old also shows that it was intended to give special consideration to the Telengana region.

We may mention that the earlier Full Bench came to the same conclusion in P. Lakshmana Rao v. State of Andhra Pradesh (supra).

It was urged before us that s. 2 insofar as it dealt with Tel- engana region cannot be given an independent existence. We are It 1s only a matter of drafting and if unable to accede to this. the Telengana region had been dealt with separately in a separate act we would have had no hesitation in holding that s. 2 would hll with s. 3. The .fact that s. 2 deals with laws and rules in v:irious states would not prevent us from portion from the invalid portion. This Court specifically held :hat s. 3 was bad insofar as .it dealt with the Telengana region. We hold that s. 2 is also bad insofar as it dealt with Telengana area.

separating

the valid c

We may mention that we are not concerned with the interpre tation of the Mulki Rules and their applicability after the adapta- D lion. No such question was answered tjy the Full Bench or was dealt with by the Division Bench.

In the result the appeal is allowed, the judgments cf the Fu! Bench and the Division Bench are set aside and writ petition No. 2524 of 1967 is dismissed.

It was suggested by the respondents in the appeal that •he impugned Mulki Rules are unjust to tb~m. This was strongly denied by the appellants. This is a matter for Parliament and not for us. We are only concerned with their validity. the circumstances the parties will bear their own costs throughout.

In

E

G.C.

Appeal allowed.

L.+98 Sup C.l..'7J -250:~ -16-J-7~ GIPF.

. I