Case Note & Summary
The appeal before the Supreme Court concerned the validity of the Mulki Rules, which prescribed residential qualifications for appointment to state services in the former Hyderabad State. The State Government appealed by certificate against the Andhra Pradesh High Court's judgment declaring the Mulki Rules invalid and inoperative after the formation of Andhra Pradesh. The case arose from a writ petition filed by twelve Extension Officers in the Department of Industries, Government of Andhra Pradesh, who were retrenched and absorbed as Senior Inspectors. They alleged that persons junior to them were retained as Extension Officers solely because they were residents of the Telangana area, and that such preferential treatment based on residential qualification was discriminatory and violative of Article 16 of the Constitution. The Mulki Rules formed part of the Hyderabad Civil Service Regulations promulgated under the Nizam's Firman dated 25th Ramzan 1337H. After the States Reorganisation Act, 1956, the Telangana area of Hyderabad State and the State of Andhra were combined to form the new State of Andhra Pradesh. The respondents challenged the validity of the Mulki Rules. The High Court initially had a Full Bench decision in P. Lakshmana Rao's case upholding the validity of the rules, but a larger Full Bench of five judges overruled that decision and held the rules invalid. The Division Bench then allowed the writ appeal, prompting the State to appeal to the Supreme Court. The Supreme Court framed four questions of law: whether the impugned rules were laws in force immediately before the commencement of the Constitution; whether they were continued by Article 35(b); whether they continued in force after the States Reorganisation Act; and whether they were repealed by Section 2 of the Public Employment (Requirement as to Residence) Act, 1957. The Court analyzed each question. It held that the phrase "laws in force in the territory of India" in Article 35(b) includes laws of former Indian States, as also indicated by Article 372. It distinguished Janardan Reddy v. State. The Court further held that Article 16(3) confers legislative power on Parliament with respect to residential qualifications for public employment, and the Mulki Rules prescribing residence in the whole Hyderabad State fell within that power and were saved by Article 35(b). The Court emphasized that the words "notwithstanding anything in the Constitution" in Article 35(b) mean that the reorganisation of states under Articles 3 and 4 cannot take away the fundamental rights saved by Article 35(b). Finally, on the issue of repeal, the Court applied the doctrine of severability as laid down in R.M.D. Chamarbaugwala v. Union of India and held that Section 2 of the 1957 Act was not severable from Section 3, which had been declared void for the Telangana region in Narasimha Rao's case. The legislative history, object, title and preamble indicated that Parliament would not have enacted Section 2 without Section 3 for Telangana. The Court also observed that whether the Mulki Rules were unjust was a matter for Parliament, and the Court was only concerned with their validity. The Supreme Court allowed the appeal, set aside the High Court's judgment, and held that the Mulki Rules were valid and operative after the formation of Andhra Pradesh and were not repealed by Section 2 of the Public Employment (Requirement as to Residence) Act, 1957.
Headnote
A) Constitutional Law - Laws in Force - Article 35(b) and Article 372 - Hyderabad Civil Service Regulations (Mulki Rules) - The phrase "laws in force in the territory of India" in Article 35(b) includes laws of former Indian States, not just British India; the test is whether the territory is included in India after commencement of the Constitution - Court distinguished Janardan Reddy v. State - Held that the Mulki Rules are "laws in force" and continued by Article 35(b) (Refs 569H-570E) B) Constitutional Law - Residential Qualification for Public Employment - Article 16(3) and Article 35(b) - Hyderabad Civil Service Regulations, Appendix N, Rules 1(b) and 3 - Rules prescribing residence in whole Hyderabad State for appointment fell within Parliament's legislative power under Article 16(3) and are saved by Article 35(b) - Merely because other Mulki Rules became void on commencement did not invalidate these rules - Held that effect must be given to Article 35(b) and rules are valid (Ref 570E) C) Constitutional Law - Reorganisation of States - Article 35(b), Articles 3 and 4 - Hyderabad Civil Service Regulations (Mulki Rules) continued in force after formation of Andhra Pradesh under States Reorganisation Act, 1956 - Article 35(b) says "notwithstanding anything in the Constitution", so reorganisation cannot extinguish rights under Article 35(b); only Parliament can amend, repeal or alter - Held that reorganisation of states does not affect continued validity of Mulki Rules (Ref 571C) D) Statutory Interpretation - Severability - Public Employment (Requirement as to Residence) Act, 1957, Sections 2 and 3 - Section 2 not severable from Section 3 which was struck down in Narasimha Rao's case for Telangana region - Parliament would not have enacted Section 2 without Section 3 for Telangana based on legislative history, object, title and preamble - Held Section 2 also invalid insofar as it dealt with Telangana; rules not repealed (Refs 573G-H, 574B-D) E) Judicial Review - Policy and Validity - Constitution of India, Article 16 - Question whether Mulki Rules were unjust to respondents was for Parliament, not Court - Court concerned only with validity, not fairness - Held that appeal allowed and High Court judgment set aside (Ref 574E)
Issue of Consideration
Whether Rule 1(b) read with Rule 3 of the Mulki Rules and Article 39 of Hyderabad Civil Service Regulations were laws in force immediately before the commencement of the Constitution; whether they were continued in force by Article 35(b) of the Constitution; whether they continued in force after the constitution of the State of Andhra Pradesh under the States Reorganisation Act, 1956; whether they were repealed by Section 2 of the Public Employment (Requirement as to Residence) Act, 1957 notwithstanding that Section 3 of the said Act was declared void insofar as it dealt with Telangana
Final Decision
Appeal allowed; High Court judgment set aside; Mulki Rules held valid and operative after formation of Andhra Pradesh and not repealed by Section 2 of Public Employment (Requirement as to Residence) Act, 1957.
Law Points
- Laws in force in territory of India under Article 35(b) include laws of former Indian States
- Article 16(3) confers legislative power on Parliament with respect to residential qualifications for public employment
- Rules prescribing residence in whole Hyderabad State are saved by Article 35(b)
- Effect of reorganisation of States must be ignored under Article 35(b)
- Section 2 of Public Employment (Requirement as to Residence) Act
- 1957 is not severable from Section 3 and both are invalid insofar as they relate to Telangana
- Court concerned with validity
- not policy
