Important points1. Where on interpretation of existing law the Court has given the benefits, the same can be nullified by a legislature with retrospective effect, so long as law enacted does not contravene Chapter III of the Constitution and other constitutional provisions.2. The Haryana Civil Service (Executive Branch) and Allied Services and Other Services, Common/Combined Examination Act, 2002, is not ultra vires and it does not amount to usurpation of judicial powers by the Legislature.

Headnote:Service Law—Haryana Civil Service (Executive Branch) and Allied Services and Other Services, Common/Combined Examination Act, 2002—Sections 1(2), (3), 3 and 4—Punjab Civil Service (Executive Branch) Rules, 1930—Rules 5, 6, 7 and 8—Constitution of India—Articles 14 and 16—Constitutional validity of the Act challenged to the extent of its retrospective application—The Act was enforced on 27.3.2002—The Act is deemed to have come into force w.e.f. 29.8.1989—Appointments being made against additional posts—Claims by candidates to the posts in Executive Branch and Allied Services which had arisen subsequent to the advertisement under which those candidates had applied—The Act was passed removing the basis of Court decisions allowing such claims—Whether the Act, to the extent of its retrospectivity, is ultra vires as it amounts to usurpation of judicial power by the legislature or it removes the basis of decisions in Hooda and Sandeep Singh’s cases—(No)—Is the Act violative of Articles 14 and 16 of the Constitution—(No).
       Held : Undoubtedly, the legislature has no jurisdiction to set aside a decision of a court of law. The decisions in Hooda and Sandeep Singh’s cases have to be assumed to be correct and on that basis it is to be considered whether the Act has removed the basis of those decisions or, in fact, in that disguise, it has usurped the judicial power. The contention that the Hooda’s case was not properly argued is of no relevance. (Para 20)
       The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power by the State and to function as an appellate court or tribunal, which is against the concept of separation of powers. (Para 47)
       When a particular Rule or the Act is interpreted by a court of law in a specified manner and the law-making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly inequitous and accordingly a new set of rules or laws is enacted, it is very often challenged on the ground that the legislature has usurped the judicial power. In such a case the Court has a delicate function to examine the new set of laws enacted by the legislature and to find out whether in fact the legislature has exercised the legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the legislature has altered and changed the character of the legislation which ultimately may render the judicial decision ineffective. (Para 48)
       In the instant case, none has questioned the competence of the Haryana Legislature to pass the impugned Act. The question is whether the impugned legislation has encroached upon judicial power or has rendered the judicial decision ineffective by removing the legal basis on which it was based with retrospective effect. According to the respondent-State, the basis of the decision was circulars of 1957 and 1972 and the said circulars having been repealed, the basis of the judgment has been altered. The contention is that the judgment in Hooda’s case would not have been rendered if these circulars were not there. (Para 52)
       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 Malhon in 1989 merit list prepared by the Commission are at serial Nos. 9 and 11 respectively. Virender Singh Hooda, Amerjeet 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 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 Malhon 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. 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. Before parting with the case, it deserves to be noticed that to a large extent the State Government itself was responsible for the difficulties because of long gap of number of years between advertisement and appointments to the posts. Rule 9 postulates that the competitive examination shall be held each year but the same are held after 3/4 years. If timely steps are taken by sending the requisitions, in issue of the advertisement holding of examination, completion of selection processes and in making appointments, the difficulties in all likelihood, would not arise. On the other hand, as in these cases, if there are long gap of years in taking any of aforesaid steps, the difficulties are likely to arise. In the present case 3 to 4 years were taken in making appointments in respect of posts advertised on all the four occasions i.e. in the year 1989, 1992, 1996 and 1999. We hope that such a situation would not arise in future. When Rule requires examination to be held in the month of January, it is implicit that the entire process up to the appointment shall be completed as soon as possible thereafter and not later than the end of the year so that when the examination is held in the month of January of the next year, the entire selection process of the previous advertisement is over. Another aspect required to be noticed is about special recruitment under proviso to Rule 5 in the exigencies of the service. In such mode of appointments, the compromise with, in so far as merits of the candidates is concerned, cannot be ruled out. Mr. Rao appearing for State of Haryana has informed us that in the recent years resort to special recruitment was made only in the year 1997. That was challenged and quashed by the judgment of Punjab and Haryana High Court which has attained finality. Ordinarily if the steps under the Rules are taken in time as above indicated there would hardly be an occasion to resort to special recruitment avoiding unnecessary litigation of aforesaid nature which led to the setting aside of the special recruitment of 1997. This is yet another aspect which is required to be borne in mind by the State Government. Be that as it may, in view of aforesaid discussion our conclusions are 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.
       (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. (Paras 70 to 72)

Judgment

Y.K. Sabharwal, J.—In these matters the validity of the Haryana Civil Service (Executive Branch) and Allied Services and Other Services, Common/Combined Examination Act, 2002 (for short ‘the Act’) is under challenge to the extent of its retrospective application. The Act was enforced on 27th March, 2002. Section 1(2) of the Act provides that the Act is deemed to have come into force with effect from 29th August, 1989. Section 1(3) provides that the Act shall apply to those persons who have been appointed or are offered appointment to the services/posts, recruitment to which is made by holding common/combined examination. Section 3 repeals the executive instructions contained in various circulars issued from time to time. We are concerned with circulars dated 22nd March, 1957 and 26th May, 1972. Section 4(1) provides that no appointment shall be made to any post or service to which the Act applies beyond the number of posts advertised. Section 4(2) provides that notwithstanding anything to the contrary contained in any judgment, order, decree or decision of the court of law, Act, rules, regulation or executive instructions, no candidates, from the date of commencement of the Act, shall, on the basis of his merit or placement in a common/combined examination, have right to seek appointment to Haryana Civil Service (Executive Branch) and Allied Services or other services beyond the number of advertised posts. Section 4(3) provides that State Government shall not be competent to offer appointment to a candidate, who is placed in waiting list or, claims himself to be in the waiting list on the basis of the common/combined examination, for a post for which his name was not recommended by the Commission. Proviso to sub-section (3) of Section 4 stipulates that if a candidate has been appointed or offered appointment over and above advertised posts for any reason, the service of such candidate shall be dispensed with. However, he shall be entitled to be appointed to the service/posts, if any, for which his name was originally recommended by the Commission. It has further been provided that no recovery of higher salary, emoluments or any other financial benefits drawn by such candidate as a result of his appointment in excess of the advertised posts, shall be made from him but his pay shall be fixed in the scale of the post to which he is found entitled for appointment under the Act.

2. The contention urged on behalf of the petitioners is that the Act amounts to usurpation of judicial power by the State Legislature with a view to overrule the decisions of this Court in Virender S. Hooda & Ors. v. State of Haryana & Anr. [(1999) 3 SCC 696] and Sandeep Singh’s case (C.A. No. 7422 of 1999 decided on 9th November, 2000). It has also been contended that the impugned legislation is violative of Articles 14 and 16 of the Constitution of India. Supporting the legislation and controverting that the Act is violative of Articles 14 and 16, it has been urged on behalf of the State that the Act has removed the basis of the aforesaid decisions which is a legal and legitimate mode of exercise of legislative power and the effect on employees is only incidental, as a consequence of the enforcement of the Act and it would not be correct to label the legislative power, a usurpation of judicial power.

3. Before we examine the contentions and questions of law that have been raised, it is necessary to note the background which led to the passing of the Act.

4. In the year 1989, Haryana Public Service Commission (hereinafter referred to as ‘the Commission’) advertised for recruitment to the Haryana Civil Services (Executive Branch) (for short ‘Executive Branch’) and other Allied Services through combined competitive examination. The advertisement included 12 posts in the Executive Branch (7 general and 5 reserved) and number of posts in Allied Services. A common written examination was held in February, 1991, the result was declared in December, 1991, in

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2004 Supreme(SC) 1356

Cases Referred (26)