- (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 be taken: "All non-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."
(2.) 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 of the 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. It provided: "3. Power 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 Act 1956." Under Section 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 3 provides: "3. Requirement 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."
(3.) 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.;