CCSAP Report - Ministry of Home Affairs

5.8 Articles 16 and 35 of the Constitution and the Public
Employment (Requirement as to Residence) Act, 1957
5.8.01 Article 16 of the Constitution of India (as stated herein below)
provides for equality of opportunity for all citizens in the matters of employment
or appointment to any office under the State 7 . Sub-clause (2) of the Article
specifically prohibits any discrimination on the grounds of sex, religion, race,
caste, descent, place of birth, residence or any of them. The primary intention of
the lawmakers was to make every office or employment open and available to
every citizen of India and also, to make offices or employment in one part of
India open to citizens in all other parts of India. However, sub-clause (3) then
makes an exception. This clause enables Parliament to make a law in a special
case prescribing any requirement as to residence within a state or Union
Territory, as a pre-condition of employment in that state or Union Territory, prior
to such employment or appointment.
5.9 Article 16 - Equality of opportunity in matters of public
employment
1. There shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State.
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.
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…”
5.9.01 Article 35 (a) of the Constitution confers the power to create
residential qualification for employment exclusively upon the Parliament and
denies it to the Legislatures of the states. In exercise of the powers conferred
upon Parliament by virtue of Article(s) 16(3) and 35(a) of the Constitution, the
7 Definition of “State” as per Article 12 of the Constitution.
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