TMI Blog1994 (4) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that (i) non-Sikkimese nationals may be appointed only when suitably qualified and experienced Sikkimese nationals are not available, and (ii) replacement of such appointees by suitable Sikkimese candidates may be made as and when available. Fortunately, the facts on which this group of cases arise were admitted in the High Court. The admitted facts were recorded by the High Court on 14-9-1983 and the said record was signed by the learned counsel for the parties in token of their having accepted them as forming the factual matrix for the decision of the writ petitions. But before we set out the factual matrix we may take note of the historical developments leading to Sikkim becoming one of the States of India. 2. Pursuant to an agreement reached between the Chogyal of Sikkim and leaders of the political parties representing the people of Sikkim on the one hand and the Government of India on the other, the Sikkim Assembly unanimously passed the Government of Sikkim Bill, 1974, which was duly promulgated by the Chogyal on 4-7-1974 as the Government of Sikkim Act, 1974. By this Act the Government of Sikkim was empowered to take steps for seeking representation of the people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outline the undisputed factual matrix. After Sikkim became the 22nd State of the Union of India, the Directorate of Survey and Settlement of the Government of Sikkim created and advertised certain posts and invited applications for filling up the said temporary Posts. The respondents in this group of appeals applied for the posts and were appointed in different capacities in 1976. As and when the survey work was completed the surplus employees were relieved of their jobs in 1980, 1981 and 1982. In 1982 some of the surplus employees who were non-locals filed writ petitions in the High Court of Sikkim challenging the Government s decision terminating their services. A learned Single Judge of the High Court by his judgment and order dated 29-2-1984 allowed the writ petitions and quashed the termination orders. It is against the view taken by the learned Single Judge that the present appeals have been preferred. 4. Before we proceed to deal with the submissions made before us it would be advantageous to notice the controversy projected before the High Court. The grievance of the employees was that in effecting termination of the services of surplus employees, the employees were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if such a construction was possible or permissible, the relevant Rules, so construed, would be violative of Article 16 of the Constitution as being discriminatory on the ground of residence and I have also pointed out hereinbefore in considerable detail that nothing in Article 371-F(k) or Article 35(b), their non obstante clauses notwithstanding, would protect them from the challenge of Article 16(1) and (2) read with Article 14 of the Constitution. Thus, the learned Judge held that the discrimination based solely on the ground of the employees being non-locals was impermissible under Articles 14 and 16 of the Constitution and consequently struck down the orders of termination based on that ground. 5. Now before Sikkim became a part of India under the Sikkim Subjects Regulations, 1961, every person domiciled in the territory of Sikkim immediately before the commencement of the said Regulations, i.e., 3-7-1961 was declared to be a Sikkim subject if he (a) was born in the territory of Sikkim and was a resident thereof or (b) he had been ordinarily residing in the territory of Sikkim for not less than 15 years immediately preceding the commencement of the Regulations or (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt nor any other court shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim which was entered into or executed before the appointed day. Pursuant to Article 371-F(1) the President made the Adaptation of Sikkim Laws (No. 1) Order, 1975, which was brought into force w.e.f. 26-4-1975 i.e. the appointed day. By this order the laws set out in the First Schedule were repealed whereas those mentioned in the Second Schedule were to have effect, subject to the adaptations and modifications directed by that Schedule. By a subsequent order called the Adaptation of Sikkim Laws (No. 1) Amendment Order, 1975, which by a deeming fiction was also brought into force w.e.f. 26-4-1975, a new provision was inserted in the previous order whereby review petitions pending before the appointed day were ordered to be transferred to the High Court. Taking note of these changes the High Court held: But with the incorporation of Sikkim as a component State within the Union of India in 1975, Sikkimese nationality as a separate legal and political concept obviously came to an end and thenceforward al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgone a change when by notification dated 17-11-1980 the following paragraph was added: In exercise of the powers conferred by the provision of Article 309 of the Constitution of India, the Governor of Sikkim is pleased to adopt the Sikkim Government Establishment Rules, 1974 as the rules regarding recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the State of Sikkim with modifications set out hereinbelow with effect from the 26th day of April, 1975. The High Court observes that the Rules so adopted under Article 309 acquired a distinct legal entity from the Rules as they existed prior to 26-4-1975 and hence when the impugned orders terminating the services were passed the said orders were governed by the Rules adopted under Article 309 which Rules were required to satisfy the equality test enshrined in Articles 14, 15 and 16 of the Constitution. The submission based on Article 35(b) read with Article 372(1) was repelled on the ground that the said provisions applied to the territories forming part of India on 26-1- 1950 and not to those included in the Union of India thereafter. On this line of reasoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15(1) prohibits discrimination inter alia on the ground of place of birth. So also Article 16(2) prohibits discrimination on grounds of descent, place of birth, residence or any of them in respect of, any employment or appointment. The former prohibits the State from discriminating against any citizen whereas the latter prohibits discrimination in matters of employment or office under the State. However, Article 16(3) empowers Parliament to make law prescribing requirement of residence in employment as stated earlier. Thus, Article 14 prohibits the State from denying to any person equality before the law and equal protection of the laws within the territory of India whereas Articles 15(1) and 16(2) protect the citizen against discrimination on stated counts. This, in brief, is the import of these provisions. 9. The next question is whether the law protected by virtue of the power conferred by Article 371-F is immune from being tested on the touchstone of the requirement being consistent with the basic structure of the Constitution in view of the non obstante clause with which the said provision opens. For example, in view of clause (k) of that article can an existing law contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and enforcement of the rights which the petitioners had as residents of the ceded territory against their own sovereign did not actually arise, vide paragraph 31 of that decision, a and hence the said decision is not an authority for the proposition that even the law as it existed before Sikkim became a part of India, which stands protected by clause (k) of Article 371-F, must comply with the basic feature doctrine for its enforcement. He invited our attention to Article 16(3) which in terms permits Parliament to make a law prescribing, in regard to a class or classes of employment or appointment to an office, any requirement as to residence within the State or Union Territory, notwithstanding the other clauses of the said article. He next invited our attention to Article 35. This article begins with a non obstante clause notwithstanding anything in this Constitution and then clause (a)(i) proceeds to add that Parliament alone shall have power to make laws with respect to any of the matters which under clause (3) of Article 16, clause (3) of Article 32, Article 33 and Article 34 may be provided for by Parliament. Clause (b) of that Article lays down that notwithstanding anything in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish, new States on such terms and conditions as it thinks fit. The law so made must conform to the requirements of Article 13. That is the view expressed in Poudyal casel. But the historical events preceding its inclusion in the territory of India must be home in mind. Sikkim during the British period was ruled by a monarch called the Chogyal. After India became free there was a popular demand from the people of Sikkim for its merger with India. Pursuant to the sentiments expressed by the People of Sikkim, a treaty was entered into between India and the Chogyal short of merger which was followed up by consequential changes. However, the public demand became violent forcing the Chogyal to request the Union Government to assume the responsibility for good Government. Ultimately, on 8-5-1973, a formal agreement was signed between the Chogyal and the political leaders of Sikkim on the one side and the Government of India on the other in pursuance whereto the people of Sikkim were to enjoy certain democratic rights. This development would show that Sikkim which was a British protectorate under the British paramountcy until 1947 came within the protectorate of India under the treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod prescribed by Article 35(c) of the Constitution. If a fundamental right touching life and liberty can be abridged for specified period by the introduction of clause (c) in Article 35, so also it would be permissible to make provision in clause (b) of that article which may have the effect of impinging on certain rights enumerated in Part III of the Constitution on the basis of the protection conferred by clause (k) of Article 371-F. We will examine this provision shortly but before we do so we must examine the character of the Rules issued by the Chogyal before the merger of Sikkim into the Union of India. 13.The Establishment Rules of 1974 were in existence before the historical developments led to Sikkim becoming an associate State in the first instance and later a fullfledged State of the Union of India. The President of India in exercise of power conferred by clause (1) of Article 371- F made the Adaptation of Sikkim Laws (No. 1) Order, 1975, which defined the expression existing law to mean any law in force before the appointed day i.e. 26-4-1975, in the whole or any part of the territories comprised in the State of Sikkim and the term law was defined to include any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S) 75: (1973) 2 SCR 562 , a question arose whether the Hyderabad Civil Service Regulations promulgated by the Nizam s Firman, popularly known as the Mulki Rules, could be described as laws in force at the commencement of the Constitution and therefore continued in force by virtue of Article 35(b) notwithstanding the States Reorganisation Act, 1956, by which the Telangana area of Hyderabad State and the State of Andhra were combined to form the new State of Andhra Pradesh. The Mulki Rules were promulgated before the merger of the State of Hyderabad with India. They laid down certain qualifications as to residence in the State for appointment to State services. The respondents challenged their validity. The High Court declared them invalid whereupon the matter was brought to this Court in appeal. The main question was whether the Mulki Rules could be described as laws in force immediately before the commencement of the Constitution in the territory of India and, if yes, could they be treated as continuing in force by the thrust of Article 35(b) of the Constitution? On the first part of the question this Court held that the words laws in force in the territory of. India occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be read as limited in its application only to those clauses which run contrary to the provisions of the Constitution. The article is a special provision relating to the State of Sikkim. The article begins with a non obstante clause and goes on to add in clause (f) that Parliament may, with a view to protecting the rights and interests of different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections, etc. This provision was scrutinised by this Court in Poudyal casel to which we have referred earlier. By majority the constitutional validity of this provision was upheld by this Court in that case. For our purpose, however, clause (k) of Article 37 1 -F is relevant which we have extracted earlier. That clause provides that notwithstanding anything in the Constitution, all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue in force therein until amended or repealed by a competent legislature or other competent authority. On a plain reading of this provision it bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionals are not available and further provides for replacement of such non-Sikkimese nationals by Sikkimese candidates as and when the latter become available. The High Court has refused to construe the said proviso to mean local residents of Sikkim were to be preferred to non-residents of Sikkim. The High Court answers the contentions thus: But even with the aid of these provisions, it is not possible to construe the expression Sikkimese nationals as locals or permanent residents of Sikkim, as one can be a national of one country without being a resident in that country and may in fact be a permanent resident of another country with his domicile, whether of origin or of choice, in that country. And caps the same as under: I have already noted that the provisions of Rule 4(4) of the Sikkim Government Establishment Rules, quoted hereinbefore, provided for preferential treatment to Sikkimese nationals in matters relating to employments or appointments under the then Government of Sikkim and that with the incorporation of Sikkim as a component State in the Union of India with effect from 26-4- 1975, Sikkimese nationality having ceased to exist as a politico-legal concept, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence they had to be protected by the non obstante clause. There is no question of clause (k) itself being in conflict with any of the provisions of the Constitution but there was every possibility of the laws in force immediately before the appointed day being in conflict and they had to be protected from being assailed to be unconstitutional. Secondly, Article 372(1) had a limited role to play. By Article 395, the Indian Independence Act, 1947, the Government of India Act, 1935, and all related enactments amending or supplementing the same, except the Abolition of Privy Council Jurisdiction Act, 1949, came to be repealed. Notwithstanding their repeal, all the laws in force in the territory of India immediately before the commencement of the Constitution were continued in force therein until altered or repealed or amended by a competent legislature or other competent authority, subject of course to the other provisions of the Constitution, a limitation which is not to be found in clause (k) of Article 371-F. It is, therefore, obvious that the scheme and scope of the two provisions is totally different, in that, Article 371-F extends a total protection to matters listed in clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass muster of Articles 14/16 and, if yes, do they? These are some of the questions which will have to be answered. 19. We have already indicated the politico-legal scenario which existed immediately before the Sikkimese people through their leaders desired to associate themselves with India and the reasons which prevailed for introducing the 35th and 36th Amendments to the Constitution of India ultimately admitting the State of Sikkim as one of the States in the First Schedule to the Constitution. It also became necessary to make certain special provisions with respect to this new State and hence Article 37 1-F was simultaneously introduced by the 36th Amendment. These special provisions many of them transitory in nature had to be given immunity from the other provisions of the Constitution and hence Article 371-F began with a non obstante clause. The President of India was also empowered by clause (o) of the said article to do anything (including any adaptation or modification of any other article) which appears to him necessary for removing any difficulty which may be experienced in giving effect to the preceding provisions of the: article but the proviso stipulated that no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch adaptations and modifications. Article 372(3)(a) makes it clear that this special power conferred on the President is transitory in nature and will not enure beyond three years from the commencement of the Constitution. This is one group of articles which has relation to laws in existence in the territory of India immediately before the commencement of the Constitution. We have referred to the scheme of this group of articles to understand the scheme of the special provisions relating to Sikkim. 13 (1990) 1 SCC 109: 1989 Supp 1 SCR 623 14 (1990) 1 SCC 12: 1989 Supp 1 SCR 692 21. From what we have said earlier it is crystal clear that certain political developments of considerable significance to the people of Sikkim had preceded its merger into the Union of India. This merger was based on certain solemn assurances given to the people of India. The constitutional provisions cannot be read as torn from the historical developments which preceded the merger. The laws which were in force immediately before merger were enacted at a time when Sikkim was under the Chogyal s rule and could not, therefore, be in accord with the constitutional mandates of the free democratic republic. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch adaptation and modification. It is thus obvious that the adaptation and modification made by the President in exercise of this special power does not have the effect of the law ceasing to be a law in force within the meaning of clause (k) of Article 371-F. Therefore, on the plain language of the said provision it is difficult to hold that the effect of adaptation or modification is to take the law out of the purview of laws in force . 23. The next question is whether the insertion of the introductory clause purporting to convey that the said rules are made under Article 309 of the Constitution with effect from 26-4-1975 amounts to substitution of the Establishment Rules of 1974 to deny them the immunity conferred by clause (k) of Article 371-F? We have extracted the introductory part earlier which shows that the Establishment Rules were merely adopted with modification with effect from 26-4- 1975. Rule 4(4) remains as it was and the Rules continue to be effective from 1-4-1974. As held by this Court in the Mulki Rules case the question to ask is: Has Parliament repealed or amended the said Rules which were continued in force by virtue of the Constitution, Article 35(b) in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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