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 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 2 LPA No.488 of 2009 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. 3 LPA No.488 of 2009 (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 4 LPA No.488 of 2009 constitutional 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 5 LPA No.488 of 2009 decision 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. 6 LPA No.488 of 2009 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 7 LPA No.488 of 2009 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 8