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2007 DIGILAW 20 (KER)

Ranjith. v. S/o. Viswanathan VS State of Kerala

2007-01-08

M.RAMACHANDRAN, V.K.BALI

body2007
Judgment :- V.K. Bali, C.J. (Oral) Ranjith.V., the petitioner herein, has filed this petition under Article 226 of the Constitution of India challenging the vires of Rule 4(1) of the Rules under the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Exhibit P3) as violative of Article 16(2) of the Constitution of India. 2. The brief facts culminating into the filing of the present petition would reveal that the Travancore Devaswom Board, the 2nd respondent herein, is an 'other authority' answering the definition of 'State' under Article 12 of the Constitution of India. The Board has been constituted under Section 4 of the Travancore Cochin Hindu Religious Institutions Act, 1950, hereinafter referred to as 'Act of 1950', for the purpose of administration, supervision and control of incorporated and unincorporated Devaswoms and other Hindu religious endowments and funds. Secular functions relating to administration, supervision and control of religious institutions in the Hindu religion are thus entrusted with the 2nd respondent Board. After referring to the constitution of the Board, it has further been pleaded that the constitution of the Devaswom Fund has been dealt with under Section 25 of the Act and it shall consist of a sum of Rs.46,50,000/- mentioned in Article 290A of the Constitution of India as payable to the Devaswom Fund, all moneys realized from time to time by sale of movable properties belonging to Devaswoms, all voluntary contributions and offerings made by devotees, profits and interests received from investments of funds belonging to Devaswoms and all other moneys belonging to or other income received by the Devaswoms. Out of the sum of Rs.46,50,000/- mentioned above, an annual contribution of Rs.6,00,000/- shall be made by the Board towards the expenditure in Sree Padmanabha Swamy Temple, Thiruvananthapuram. As per Section 16A of the Act, the Board may, from time to time, with the previous sanction of the Government of Kerala and subject to such conditions and limitations as the Government may determine, borrow any sum for investment by the Board in any remunerative scheme undertaken or to be undertaken by it. On the facts as mentioned above, it is pleaded that the Board constituted under the Act of 1950 would be 'State' within the meaning of Article 12 of the Constitution of India. On the facts as mentioned above, it is pleaded that the Board constituted under the Act of 1950 would be 'State' within the meaning of Article 12 of the Constitution of India. A Full Bench of this Court in P.M. Brahmadattan Namboodiripad v. Cochin Devaswom Board (AIR 1956 TC 19) has already held that the Board would come within the ambit of 'other authority' under Article 12 of the Constitution. After giving the factual backdrop, which may not be much relevant at this stage, it is pleaded that respondent No.2, Board, had published in Gazette dated 13.1.1953, a notification dated 27.11.1952 with regard to Rules under the Act of 1950. The said Rules were framed under the quasi legislative act, subordinate legislation in exercise of the powers conferred by sub-section (5) of Section 29 and clause (e) of sub-section (2) of Section 35 of the Act of 1950. The Rules were, thus, framed for the purpose of regulating recruitment of Devaswom employees under three divisions, viz., Higher Division, Intermediate Division and Lower Division. Part-III of the Rules would deal with general conditions of recruitment. Rule 4(1) of the said Rules reads as follows:- "4. A person shall not be recruited to the Devaswom Administrative Service unless.- (1) he is born or domiciled in the territory of the former State of Travancore". The Rule reproduced above is said to be violative of Article 16(2) of the Constitution of India. Article 16(2) of the Constitution reads as follows: "(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State". The condition of a person having been born or domiciled in the territory of former State of Travancore for Devaswom Administration Service under the 2nd respondent Board is in sharp contrast to Article 16(2) of the Constitution of India. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and no citizen, on the ground of place of birth or residence, can be held to be ineligible for, or discriminate against in respect of any employment or office under the State. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and no citizen, on the ground of place of birth or residence, can be held to be ineligible for, or discriminate against in respect of any employment or office under the State. We may, at this stage, refer to Article 16(3) of the Constitution of India, which reads as follows: "(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment". The State has not been able to show any reason for requirement as to residence as a condition for appointment of a person to the Devaswom Administration Service. The Supreme Court in A.V.S.N. Rao v. State of A.P. (AIR 1970 SC 422) held as follows: "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. 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 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telangana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution". 3. Mr. Anchal C. Vijayan, learned counsel appearing for the Board is unable to controvert the contention raised by the counsel for the petitioner in challenging Rule 4(1) of the Rules under the Act of 1950 being violative of Article 16(2) of the Constitution. 4. For the reasons as mentioned above, we hold that Rule 4(1) of the Rules under the Act of 1950 is violative of Article 16(2) of the Constitution of India and is quashed. Consequent of the quashing of Rule 4(1), Clause 7 of Schedule I and Clause 4 of Schedule III of the Rules under the Act of 1950 are also quashed. Henceforth, no appointment would be restricted on the basis of Rule 4(1) of the Rules under the Act of 1950, Exhibit P3. The writ petition is allowed as indicated above.