IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
L.P.A. No.488 of 2009 (O&M)
Date of decision: 3.7.2009
State of Haryana & others.
-----Appellants
Vs.
Rajbir Singh.
-----Respondent
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MRS JUSTICE DAYA CHAUDHARY
Present:- Mr. Rameshwar Malik, Addl.A.G., Haryana
for the appellants.
Mr. Pankaj Nanhera, Advocate
for the respondent.
-----
ORDER:
1. This appeal has been preferred against judgment of
the learned Single Judge, allowing the writ petition of the
respondent and directing that he be given similar treatment as
given to Ajay Malik and Arvind Malhan, which according to
learned counsel for the parties implied that the respondent will be
entitled to appointment to Haryana Civil Services.
2. The writ petition was filed for a direction to appoint the
writ petitioner to the Haryana Civil Services against posts notified
on 13.3.1996 in accordance with judgment of the Hon’ble
Supreme Court dated 13.3.1999 in C.A. No.2286 of 1999
LPA No.488 of 2009 2
Virender S. Hooda & ors. v. State of Haryana & another
reported as (1999) 3 SCC 696 (hereinafter referred to as “V.S.
Hooda-I”).
3. Before advertisement dated 13.3.1996, certain
advertisements were earlier issued between 1989 and 1996 and
selections made. Government of Haryana had issued circulars
permitting appointments to existing vacancies out of waiting list,
even beyond the originally advertised posts. A writ petition was
filed by one Virender Singh Hooda, claiming appointment to a
vacancy beyond notified vacancies. The same was dismissed by
this Court, but order of this Court was reversed by the Hon’ble
Supreme Court and a direction to consider his case for
appointment was issued. Accordingly, appointments in favour of
said petitioners were made in the year 1999. Relying upon the
said judgment, some other writ petitions were filed, which were
allowed by this Court and affirmed by the Hon’ble Supreme Court.
4. However, the State enacted the Haryana Civil Service
(Executive Branch) and Allied Services and Other Services,
Common/Combined Examination, Act, 2002 (for short, “the 2002
Act”), providing that no appointments shall be made beyond the
number of advertised posts. The 2002 Act came into force on
27.3.2002 but was made operative retrospectively from
29.8.1989. The object of the said enactment was to negate the
claim for appointment to posts which were beyond the advertised
LPA No.488 of 2009 3
posts and to remove basis of judgment of the Hon’ble Supreme
Court in V. S. Hooda-I (supra).
5. The said enactment was challenged before the
Hon’ble Supreme Court and in Virender Singh Hooda & Ors. v.
State of Haryana and another reported as 2004(12) SCC 588
(hereinafter referred to as “V.S. Hooda-II”), the Hon’ble Supreme
Court upheld the amendment except to the extent of
appointments already made. Orders already passed were also
held to be not liable to be disturbed. The concluding part of the
said judgment is as under:-
“(1) The impugned Act, to the extent of its
retrospectivity, except to the limited extent
indicated above, does not amount to usurpation
of judicial powers by the Legislature. It is not
ultra vires. It has removed the basis of decisions
in Hooda and Sandeep Singh’s cases.
(2) The Act is not violative of Articles 14 and 16 of
the Constitution of India except to a limited
extent noticed below.
(3) The first proviso to Section 4(3), to the limited
extent it provides for dispensing the services of
candidates already appointed, is harsh,
excessive, arbitrary and violative of Article 14 of
the Constitution.
The benefits already granted to the
petitioners in Writ Petition Nos. 215 to 218 and
224 of 2002 could not be taken back. To this
extent, retrospectivity is ultra vires. In all other
respects, it is valid.
LPA No.488 of 2009 4
(4) The directions of the High Court in favour of
respondents Ajay Malik and Arvind Malhan,
subject-matter of Civil Appeal Nos. 3937-38 of
2001 are maintained. For the same reason,
Jagdish Sharma and Mahavir Singh being
higher in merit than Lalit Kumar and Virender
Lather would also be entitled to similar
treatment.
(5) The judgments of the High Court in Civil Appeal
Nos. 8385 to 8393 of 2000, in view of the
provisions of the Act, are set aside.”
The extent to which the retrospectivity was struck down is
discussed in the earlier part, which is as under:-
“The result of the aforesaid discussions is that
retrospectivity in the Act cannot be held to be ultra
vires except to a limited extent which we will presently
indicate. It is not a case of usurpation of judicial power
by the Legislature. The Legislature has removed the
basis of the decision in Hooda and Sandeep Singh’s
cases by repealing the circulars. The Act is also not
violative of Articles 14 and 16 of the Constitution of
India. The candidates have right to posts that are
advertised and not the one which arise later for which
a separate advertisement is issued. A valid law,
retrospective or prospective, enacted by Legislature
cannot be declared ultra vires on the ground that it
would nullify the benefit which otherwise would have
been available as a result of applicability and
interpretation placed by a superior Court. A
mandamus issued can be nullified by the Legislature
so long as the law enacted by it does not contravene
LPA No.488 of 2009 5constitutional provisions and usurp the judicial power
and only removes the basis of the issue of the
mandamus.
Despite the aforesaid conclusion, the Act
[proviso to Section 4(3)] to the extent it takes away
the appointments already made, some of the
petitioners had been appointed much before
enforcement of the Act (ten in number as noticed
hereinbefore) in implementation of this Court’s
decision, would be unreasonable, harsh, arbitrary and
violative of Article 14 of the Constitution. The law does
not permit the Legislature to take back what has been
granted in implementation of the Court’s decision.
Such a course is impermissible.”
6. Referring to cases of persons in whose cases orders
had already been passed by this Court and appeals were pending
in the Hon’ble Supreme Court, it was observed:-
“Before concluding, we may note that the facts
of C.A. Nos.3937-38/2001 are somewhat different and
peculiar. These appeals have been filed by the State
Government challenging the impugned judgment of
the High Court granting relief to the two respondents
who belong to 1989 batch. The respondents in these
two appeals – Ajay Malik and Arvind Malhan in 1989
merit list prepared by the Commission are at serial
Nos.9 and 11 respectively. Virender Singh Hooda,
Amarjeet Singh Mann and Dinesh Singh Yadav who
were appointed to posts in Executive Branch as
noticed hereinbefore were on the merit list at serial
Nos.8, 10 and 12 respectively. These three were
appointed on 3rd December, 1989 in compliance of the
LPA No.488 of 2009 6decision in Hooda’s case dated 13th April, 1989. We
have held that the appointment given to these three
cannot be taken back. It would be iniquitous to deny
relief to Ajay Malik and Arvind Malhan when it has
been granted to other candidates who are lower in
merit position than the these two respondents. In this
view despite the conclusion as aforesaid on the
question of law, the direction contained in the
impugned judgment of the High Court does not call for
any interference qua the respondents in these
appeals.” (Pr.71)
On the aforesaid analogy, I.A. No.4 of 2004 in
Writ Petition No.215 of 2002 filed by Jagdish Sharma
and Mahavir Singh is allowed since the applicants are
higher in merit than Lalit Kumar and Virender Lather
aforenoted and also satisfy condition placed in
Sandeep Singh’s case by this Court. They are thus
entitled to be given similar treatment as Ajay Malik
and Arvind Malhan in view of peculiar facts of their
case. In this view, the direction of the High Court in
judgment dated 3rd July, 2004 in CWP No.7281 of
2000 also does not call for any interference.”
7. The writ petition filed by the respondent was pending
in this Court and has been allowed by the impugned judgment,
relying upon Part (4) of the operative part of the judgment of the
Hon’ble Supreme Court in V. S. Hooda-II (supra).
8. We have heard learned counsel for the parties.
9. Learned counsel for the appellants submitted that the
Hon’ble Supreme Court upheld the validity of 2002 Act except to
the limited extent of appointments already made prior to the Act.
LPA No.488 of 2009 7
Appointments ordered to be made by this Court were also left
undisturbed. This direction is part (4) above. In the present case,
neither appointment had already been made nor direction for
appointment had been made before coming into force of 2002
Act. There could, thus, be no parity of the case of the petitioner
with persons mentioned in direction (4).
10. Learned counsel for the appellants apart from
observations already quoted, refers to discussion in earlier part of
the judgment in paras 44, which is as under:-
“Reverting to present cases, there are three
categories of employees (i) those who in
implementation of decision in Hooda and Sandeep
Singh’s cases, before passing of the impugned Act,
had already been appointed (ii) those, though not so
appointed, have judgments of High Court passed in
their favour relying upon Hooda and Sandeep
Singh’s cases, and claim a right to appointment but
would be deprived of it if the validity of the Act is
upheld and on that basis the judgments of the High
Court upturned (iii) those, who would be covered by
law laid down in Hooda’s case on interpretation and
applicability of the aforenoted two circulars, in case
the Act is quashed to the extent of its retrospective
applicability, and on that basis would be entitled to be
considered for appointments.” (Pr. 44)
11. The above discussion shows that Ajay Malik and
Arvind Malhan were given relief on the sole consideration that
there were orders in their favour prior to 2002, which
LPA No.488 of 2009 8
consideration is not applicable to the respondent. Except for
those already appointed or those in whose favour orders had
already been passed by this Court, the Act was upheld, including
the retrospectivity part and those falling in category (iii), had to be
governed by 2002 Act and were not entitled to appointment on
parity with those whose cases had already been decided in their
favour.
12. This could not be rebutted by learned counsel for the
respondent.
13. Accordingly, the appeal is allowed, the impugned
judgment is set aside and the writ petition filed by the respondent
is dismissed.
(ADARSH KUMAR GOEL)
JUDGE
July 03, 2009 ( DAYA CHAUDHARY )
ashwani JUDGE