# VIRENDER SINGH HOODA AND ORS v. STATE OF HARY ANA AND ANR

- **Citation:** [2004] Supp. 5 S.C.R. 720
- **Court:** Supreme Court of India
- **Decided:** 2004-10-27
- **Case number:** Writ Petition No.215 of 2002
- **Bench:** Y.K. Sabharwal, D.M. Dharmadhikari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/virender-singh-hooda-and-ors-v-state-of-hary-ana-and-anr-20243
- **Pages:** 42

## Headnote

Service Law:
Civil Services (Executive Branch) and Allied Services and Other Services,
C Common/combined Examination Act, 2002-Competitive ExaminationAppointment of candidates in excess to the posts advertised-Directed by
writs of the Court in view of Government Circulars-Retrospective legislation
repealing the Circulars-Constitutional validity of-Held: Retrospective
legislation can change the basis of judicial legislation unless it is violative
D of Chapter III and other Constitutional provisions-But it cannot by a bare
declaration directly overule, reverse or override a judicial decisionLegislation of the Act does not amount to usurpation of judicial power by
the legislature-It amounts to only removal of basis of the decision by
repealing the Circulars-It is also not violative of Articles 14 and 16 of the
Constitution-Retrospectivity in the Act is not ultra vires except to the extent
E it takes away the appointments already made -
First Proviso to Section 4(3)
is harsh, excessive, arbitrary and violative of Article 14 of the Constitution
to the extent it provides for dispensing the services of already appointed
candidates-Punjab Civil Services (Executive Branch) Rules, 1930Constitution of India, 1950-Articles 14 and 16.
F
Statutory Rules vis-a-vis Executive instruction-Prevailing effect ofHeld: Where statutory Rules are in contradiction with the Executive
instructions, the Rules will prevail.
Posts were advertised in 1989 by Haryana Public Service Commission
G for recruitment to Haryana Civil Services (Executive Branch) and other allied
services through combined competitive Examination. The appointments to the
posts were made by the end of year 1992. The petitioners in Writ Petition
No.215 of 2002 secured 8th, 10th and 12th rank respectively in the merit
list, but could not be appointed to the posts in Executive Branch as only 7
General Category posts were advertised. The petitioners in Writ Peti'tion
H
720
-
--
-
VIRENDERSINGHHOODAv. STATEOFHARYANA
721
Nos. 216, 217, 218 and 224 of2002 were also not appointed to the posts in A
Executive Branch for the posts advertised in the year 1992. The petitioners
had approached the Court. This Court in Virendra S. Hooda v. State of
Haryana and Anr., (1999) 3 SCC 696 and in Sandeep Singh and Ors. v. State
of Haryana and Ors., (C.A. No. 7422 of (1999) judgment dated 9.11.2000
passed by Supreme Court), in the light of Government Circulars dated
22.3.1957 and 26.5.1972 held that all those vacancies which had occurred in B
Haryana Civil Service (Executive Branch) upto the period of six months from
the date of recommendations made by the Haryana Public Service Commission
were required to be filled, out of the same selection. The petitioners were
appointed to the posts in Executive Branch pursuant to the order. Appointment
of other petitioners to the Executive Branch was also directed relying on C
Hooda 's case.
In view of the interpretation in Hooda 's case and Sandeep Singh 's case,
the problem faced by the State was th:it during long gap between one
advertisement and the other, number of other persons attained eligibility who
would be deprived of opportunity to compete for the posts advertised D
subsequently besides there being absence of waiting list provision in the
statutory rules. In order to overcome the difficulties Haryana Civil Services
(Executive Branch) and Allied Services and Other Services, Common/
Combined Examination Act, 2002 was enacted w.e.f. 1989 repealing the
Circulars and clarifying the position for future.
The Act was challenged before this Court to the extent of its
retrospective application. The questions for determination were:
1. Whether the Act, to the extent of its retrospectivity, is ultra vires as
E
it amounts to usurpation of judicial power by the legislature or it, removes F
the basis of decisions in Hooda and Sandeep Singh 's case?
2. Whether the Act is violative of Articles 14 and·16 of the Constitution
oflndia?
The respondents in C.A. Nos. 3937-38 of2001

## Text

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A
VIRENDER SINGH HOODA AND ORS.
v.
STATE OF HARY ANA AND ANR.
OCTOBER 27, 2004
B
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]
Service Law:
Civil Services (Executive Branch) and Allied Services and Other Services,
C Common/combined Examination Act, 2002-Competitive ExaminationAppointment of candidates in excess to the posts advertised-Directed by
writs of the Court in view of Government Circulars-Retrospective legislation
repealing the Circulars-Constitutional validity of-Held: Retrospective
legislation can change the basis of judicial legislation unless it is violative
D of Chapter III and other Constitutional provisions-But it cannot by a bare
declaration directly overule, reverse or override a judicial decisionLegislation of the Act does not amount to usurpation of judicial power by
the legislature-It amounts to only removal of basis of the decision by
repealing the Circulars-It is also not violative of Articles 14 and 16 of the
Constitution-Retrospectivity in the Act is not ultra vires except to the extent
E it takes away the appointments already made -
First Proviso to Section 4(3)
is harsh, excessive, arbitrary and violative of Article 14 of the Constitution
to the extent it provides for dispensing the services of already appointed
candidates-Punjab Civil Services (Executive Branch) Rules, 1930Constitution of India, 1950-Articles 14 and 16.
F
Statutory Rules vis-a-vis Executive instruction-Prevailing effect ofHeld: Where statutory Rules are in contradiction with the Executive
instructions, the Rules will prevail.
Posts were advertised in 1989 by Haryana Public Service Commission
G for recruitment to Haryana Civil Services (Executive Branch) and other allied
services through combined competitive Examination. The appointments to the
posts were made by the end of year 1992. The petitioners in Writ Petition
No.215 of 2002 secured 8th, 10th and 12th rank respectively in the merit
list, but could not be appointed to the posts in Executive Branch as only 7
General Category posts were advertised. The petitioners in Writ Peti'tion
H
720
-
--
-
VIRENDERSINGHHOODAv. STATEOFHARYANA
721
Nos. 216, 217, 218 and 224 of2002 were also not appointed to the posts in A
Executive Branch for the posts advertised in the year 1992. The petitioners
had approached the Court. This Court in Virendra S. Hooda v. State of
Haryana and Anr., (1999) 3 SCC 696 and in Sandeep Singh and Ors. v. State
of Haryana and Ors., (C.A. No. 7422 of (1999) judgment dated 9.11.2000
passed by Supreme Court), in the light of Government Circulars dated
22.3.1957 and 26.5.1972 held that all those vacancies which had occurred in B
Haryana Civil Service (Executive Branch) upto the period of six months from
the date of recommendations made by the Haryana Public Service Commission
were required to be filled, out of the same selection. The petitioners were
appointed to the posts in Executive Branch pursuant to the order. Appointment
of other petitioners to the Executive Branch was also directed relying on C
Hooda 's case.
In view of the interpretation in Hooda 's case and Sandeep Singh 's case,
the problem faced by the State was th:it during long gap between one
advertisement and the other, number of other persons attained eligibility who
would be deprived of opportunity to compete for the posts advertised D
subsequently besides there being absence of waiting list provision in the
statutory rules. In order to overcome the difficulties Haryana Civil Services
(Executive Branch) and Allied Services and Other Services, Common/
Combined Examination Act, 2002 was enacted w.e.f. 1989 repealing the
Circulars and clarifying the position for future.
The Act was challenged before this Court to the extent of its
retrospective application. The questions for determination were:
1. Whether the Act, to the extent of its retrospectivity, is ultra vires as
E
it amounts to usurpation of judicial power by the legislature or it, removes F
the basis of decisions in Hooda and Sandeep Singh 's case?
2. Whether the Act is violative of Articles 14 and·16 of the Constitution
oflndia?
The respondents in C.A. Nos. 3937-38 of2001 who were at serial Nos. G
9 and 10 in the 1989 merit list had been directed to be appointed in Executive
Branch by High Court in compliance of decision in Hooda 's case. State has
come in appeal to this Court challenging order of High Court.
I.A. No.4 of 2004 in W.P. No.215 of2002 was filed by the candidates
H
722
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A standing higher in merit than two of the petitioners in merit list of 1992.
Disposing of the Writ Petitions and the appeals, the Court
HELD: 1.1. A valid law, retrospective or prospective, enacted by
legislature cannot be declared ultra vires on the ground tltat it would nullify
B the benefit which otherwi~e 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 constitutional provisions and usurp the judicial power and only
removes the basis of the issue of the mandamus. If the basis is nullified by
C enactment of a valid legislation which has the effect of depriving a person of
the benefit accrued under a writ, the denial of such benefit is incidental to
the power to enact a legislation with retrospective effect. Such an exercise of
power cannot be held to be usurpation of judicial power. [753-E-F; 757-E-F)
Madan Mohan Pathak and Anr. v. Union of India and Ors.: (1978) 2
D SCC 50; State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors.,
[ 1983) 2 SCC 33 and Union of India and Ors. v. Tushar Ranjan Mohanty and
Ors., [1994) 5 SCC 450, distinguished.
Indian Aluminium Co. and Ors. v. State of Kera/a and Ors., [1996) 7
SCC 637; A. V. Nachane and Anr. v. Union of India and Anr., [1982) 1 SCC
E 205; S.R Bhagwat and Ors. v. State of Mysore [1995] 6 SCC 16 and National
Agricultural Cooperative Marketing Federation of India ltd. and Anr. v.
Union of India and Ors., [2003) 5 SCC 23, referred to.
1.2. The power to make laws includes power to give it retrospeetive effect.
Public interest at large is one of the relevant considerations in determining
F the constitutional validity ofa retrospective legislation. [742-Fl
G
The Assistant Commissioner of Urban land Tax and Ors. v. The
Buckingham and Carnatic Co. Ltd., etc. [ 1969) 2 SCC 55, referred to.
Stott v. Stott Realty Co., 284 N.W. 635, 640, 288 Mich. 35, referred to.
Craies on Statute law 7th Edn. pages 387 and 396; Judicial Dictionary
(13th Edition) K.J. Aiyar, Butterworth, pg.857, Words and Phrases; Permanent
Edition Vo/.37A page 224/225, 73rd volume of Harvard Law Review, page 692,
referred to.
H
1.3. The validity of a validating law depends upon whether the legislature
-
-
VIRENDER SINGH HOO DA v. STATE OF HARY ANA
723
possesses the competence which it claims over the subject-matter and whether A
in making the validation it removes the defect which the courts had found in
the existing law. [746-G)
1.4. The legislature cannot by a bare declaration, without anything more,
directly overrule, reverse or override a judicial decision, it may, at any time
in exercise of the plenary power conferred on it by the Constitution render a B
judicial decision ineffective by enacting a valid law on a topic within its
legislative field, fundamentally altering or changing with retrospective,
curative or neutralising effect the conditions on whi~h such decision is based.
(746-H; 747-A-B)
l.N. Saksena and Anr. v. State of Madhya Pradesh, [1976] 4 SCC 750, C
relied on.
1.5. There is a distinction between encroachment on the judicial power
and nullification of the effect of a judicial decision by changing the law
retrospectively. The former is outside the competence of the legislature but
the latter is within its permissible limits. [748-B]. ·
D
Mis. Tirath Ram Rajindra Nath, Lucknow v. State of UP. and Anr., [1973]
3 SCC 585 and J.N. Saksena and Anr. v. State of Madhya Pradesh, (1976] 4
sec 750, referred to.
1.6. The legislature can change the basis on which a decision is given E
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 partes 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 F
of separation of powers. [748-D)
Cauvery Water Disputes Tribunal (1993) Supp.I SCC 96 II; S.S. Bola
and Ors., v. B.D. Sardana and Ors., (1997) 2 SCC 274; The Government of
Andhra Pradesh and Anr. v. Hindustan Machine Tools Ltd., (1975) 2 SCC
274 and State of Haryana and Ors. v. Karna! Co-op. Farmers' Society Limited G
and Ors., [1993)) 2 SCC 363, referred to.
1. 7. 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 of
India and other constitutional provisions. [749-FJ
H
724
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A
1.8. Vested rights can be taken away by legislature by way of
retrospective legislation. Taking away of such right would however, be
impermissible if violative of Articles 14, 16 and any other constitutional
provision. [750-A)
State of Tamil Nadu v. Aroorran Sugars Ltd., (1997] 1SCC326, relied
B on
1.9. The Circular dated 22.3.1957 is general in nature and does not
refer to any particular service or service rules. In law if an executive
instruction is contrary to Statutory Rules, the Rules will prevail and not the
executive instructions. Punjab Civil Service (Executive Branch) Rules, 1930
C do not contemplate any waiting list for the filling up of vacancies in excess of
the number determined by initiating the recruitment process. Further reading
of the circular shows that it is applicable to pre-existing vacancies. It does
not appear from material on record that for recruitment to these posts for
which combined competitive examination takes place, these circulars were
ever applied. The circulars, it seems, were relied upon for the first time in
D Hooda's case. [735-F-G)
1.10. Retrospectivity in Civil Services (Executive Branch) and Allied
Services and Other Services, Common/Combined Examination Act, 2002
cannot be held to be ultra vires except fo a limited extent. It is not a case of
usurpation of judicial power by the legislature. The legislature has removed
E 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.
F
G
1757-D-F)
1.11. The Act (proviso to Section 4(3)) to the extent it takes away the
appointments already made, 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. (757-G-H]
Lohia Machines Ltd and Anr. v. Union of India and Ors., [1985] 2 SCC
197 and Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors.,
[1997] 6 sec 623, relied on.
2. It would be iniquitous to deny relief to the respondents in the appeals,
H when it has been granted to other candidates who are lower in merit position
VIRENDERSINGH HOODA v. STATE OF HARYANA [SABHARWAL,J.]725
than these two respondents. In this view, the direction of the High Court does A
not call for any interference. On the analogy, l.A.No.4 of2004 in Writ Petition
No.215 of2002 is allowed since the applicants are higher in merit than two
of the petitioners in the Writ Petitions and also satisfy condition placed in
Sandeep Singh 's case by this Court. (759-F-G)
Ashok Kumar Yadav and Ors. v. State of Haryana and Ors., (1985) 4 B
SCC 417; Hoshiar Singh v. State of Haryana and Ors., ( 19931 Suppl.4 SCC
377; State of Bihar and Ors. v. Secretariat Assistant Successful Examinees
Union, (1986) 1SCC126; Gujarat State Dy. Executive Engineers' Association
v. State of Gujarat and Ors., (19941Supp.2 SCC 591; State of Bihar and Anr.
v. Madan Mohan Singh and Ors., (1994] Supp. 3 SCC 308 and Mohan Lal C
and Ors. v. State of J and Kand Ors., (199513 SCC 486, referred to.
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 215 of2002.
(Under Article 32 of the Constitution of India.)
D
With W.P.(C) Nos. 216, 217, 218, 224, 383, 537, 588/2002, 307, 317, 319,
320/2001, 127 and 114/2003, C.A.Nos. 3937-38/2001, 8385-8391, 8392 and 8393/
2002 and S.L.P.(C) No.s 22709/2004@CC. No. 1416 of2004.
V.A. Mohta, C.S. Vaidyanathan, Rajiv Dutta, M.L. Venna, K.N. Raval, Dr.
Rajeev Dhawan, R.F. Nariman, R.K. Jain, Mukul Rohtagi; P.P. Rao, R. E
Venkataranmani, P.N. Misra, Raj Kr. Gupta, A.N. Bardiyar, Bhanu Pratap Gupta,
Sheo Kumar Gupta, Ajay Siwach, S.K. Sabharwal, Jasbir Singh Malik, Satya
Mitra, Ms. Kamakshi S. Mehlawal, Mrs. Abha R. Shanna, S.P. Singh Chauhan,
Mahabir Singh, Rakesh Dahiya, Gagandeep Sharma, Monoj Goel, Shuvodeep
Roy, B.S. Chahar, Rakesh Chahar, Mrs. Jyoti Chahar, Vinay Garg, Rakesh
K.Khanna, Ms. Rashmi Khanna, Surya Kant, Neeraj K. Jain, Ms. Mahalakshmi F
Pavani, Ms. Kavita Wadia, Balbir Singh Gupta, S. W.A.Qadri, Ranbir Singh
Yadav, Attar Singh Gulia, K.B. Rohtagi, Ms. Aparna Rohtagi Jain, Mahesh
Kasana, Dr. Krishan Singh Chauhan, Chand Kiran, V.K. Bunnan, Subhash
Kaushik, Prem Malhotra, K.K. Mohan, Arvind Kumar Gupta, Mrs. Lalitha
Kaushik, J.P. Dhanda, (NP), Nidhesh Gupta, and Ms. S. Janani, with them for G
the appearing parties.
The Judgment of the Court was delivered by
Y.K. SABHARWAL, J. In these matters the validity of the Haryana Civil
Service (Executive Branch) and Allied Services and Other Services, Common/ H
726
SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.
A 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
B 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
C notwithstanding anything to the contrary contained in any judgment, order,
decree or decision of the court of law, Act, rule, 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.
D 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 ifa candidate has been appointed
E 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. lt 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
F 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.
The contention urged on behalf of the petitioners is that the Act
amounts to usurpation of judicial power ~y the State Legislature with a view·
to overrule the decisions of this Court in Virender S. Hooda and Ors. v. State
G of Haryana and 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
H has removed the basis of the aforesaid decisions which is a legal and legitimate
VIRENDERSINGH HOO DA v. STATE OF HARY ANA [SABHAI~WAL, J.] 727
mode of exercise of legislative power and the effect on employees is only A
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.
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
~
B
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 C
number of posts in Allied Services. A common written examination was held
in February, 1991, the result was declared in December 1991, interviews were
held between 31st March, 1992 and 9th June, 1992 and the final result was
declared on 19th June, 1992. The Commission on 22nd June, 1992 made
recommendations for making appointment against 12 posts in Haryana Civil D
Service and 48 posts in the Allied Services to the State Government. The
appointments to the 12 posts were made ia December, 1992 and to the 48
posts on various dates between December, 1992 and April, 1993. The three
petitioners in Writ Petition (Civil) No.215 of 2002, Virender Singh Hooda,
Amarjit Singh Mann and Dinesh Singh Yadav, having regard to their position
in the merit list being at serial Nos.8, I 0 and 12 respectively were not appointed E
to the posts in the Executive Branch as only 7 general category posts were
advertised. One of them was already holding the post of Excise and Taxation
Officer and other two were appointed to posts in the Allied Services, one as
Excise and Taxation Officer and other as Tehsildar.
On 24th November, 1992, another advertisement was issued by the F
Commission for filling up of 12 posts (9 general and 3 reserved) in Executive
Branch and 50 in Allied Services. The written examination for these posts was
held in October, 1993 but the result of the said examination was declared on
20th January, 1996. The interviews were held between 29th January, 1996 and
I Ith March, 1996. The final result was declared on 15th March, 1996 and on G
the same day recommendations were made by the Commission for the
appointments as per merit and options exercised by the candidates. The
appointments to the 12 posts in the Executive Branch were made on 25th
June, 1997 and to the posts in the Allied Services on different dates between
June and July, 1997. Sandeep Singh, Lalit Kumar, Virender Lather and Virender
H
728
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A Singh Dahiya were appointed to posts in Allied Services and not Executive
Branch in view of their merit.
On 24th May, 1996, another advertisement was issued by the Commission
for filling up I 0 posts in the Executive Branch and 33 in the Allied Services.
By a corrigendum to this advertisement, IO more posts in the Executive
B Branch were added. The written examination was held in December, 1997 I
January, 1998, interviews were held between 16th March, 1999 and 7th April,
1999 and the final result was declared on 29th April, 1999. On 4th May, 1999,
the Commission made the recommendations for appointments and thereafter
on I st June, 1999 the State Government made 20 appointments to the Executive
C Branch and 33 appointments to the Allied Services were also made on different
dates from 23rd June, 1999 to 28th July, 1999.
Writ Petition (Civil) No.6057 of 1994 filed by Virender Singh Hooda who
could not be appointed to the Executive Branch in view of his merit position
as aforenoticed seeking such appointment against the posts of the Executive
D Branch advertised on 24th November, 1992, was dismissed by the High Court
of Punjab and Haryana on 12th May, 1994. In a Special Leave Petition filed
in this Court, Amarjit Singh Mann, Dinesh Singh Yadav being similarly placed
as Virender Singh Hooda, were impleaded as parties and the said petition was
disposed of on 30th October, 1995 by this Court granting liberty to the
aforesaid persons to file proper petition before the High Court. That petition
E was filed but it was also dismissed by the High Court. The decision of the
High Court was, however, set aside by this Court in terms of the judgment
dated 13th April, 1999 in Hooda 's case (supra) and the State Government was
directed to consider their cases for appointment to the posts in Executive
Branch.
F
On 3rd December, 1999, in compliance with the judgment of this Court,
the aforesaid 3 persons were appointed to the posts in Executive Branch.
Relying upon the decision in Hooda 's case, the claim of Sujan Singh,
Pushpindar Singh and Pardeep Goodra (petitioners in Writ Petition No.216/02)
G being similarly placed as the petitioners in Hooda 's case, was accepted by the
High Court for being appointed against posts advertised in the year, 1992.
The Special Leave Petition filed by the State Government challenging the
judgment of High Court dated 13th January, 2001 was dismissed on 12th
October, 2001. Review Petition was also dismissed on 19th February, 2002. As
a result, these three were also appointed to the posts in Executive Branch on
H 4th March, 1992.
-
VIRENDERSINGHHOODA v. STATE OF HARYANA[SABHARWAL,J.]729
The case of the aforesaid six officers concerns the
advertisement A
issued in the year 1989 and their claim for appointment to the posts in
Executive Branch is based on the advertisement in respect of posts advertised
in the year I 992 as aforesaid.
On publication of advertisement in the year 1996 as aforenoted, a writ
petition was filed in the High Court by Sandeep Singh, Lalit Kumar, Virender B
Lather and Virender Singh Dahiya (petitioners in Writ Petition Nos.217, 218
and 224/02) claiming right to be appointed to posts in Executive Branch
relying upon the decision of this Court in Hooda 's case. These four candidates
as already noticed pursuant to their position on merit list (1992 advertisement)
had been appointed to the posts in Allied Services and nol in the Executive C
Branch. The writ petition was dismissed by the High Court but the judgment
of the High Court was set aside by this Court on 9th November, 2000 in Civil
Appeal No. 7422 of I 999. In implementation of the judgment, these 4 candidates
were appointed to the posts in Executive Branch on 5th December, 2000.
On 29th January, 1999 another acfvertisement was issued by the D
Commission for filling up 14 posts in Executive Branch and 53 in the Allied
Services. The written examination was held in December, 2000 and January,
2001, interviews were held between 22nd October, 2001 and 19th November,
2001 and the final result was declared on 3rd May, 2002. The Commission
made recommendations on 6th June, 2002. The candidates who were selected E
and recommended as a result of this advertisement have filed Writ Petition
No.I 14/2003 supporting the Act and the stand of State of Haryana.
The impugned Act was passed on 27th March, 2002, i.e. before the
declaration of the final result in respect of posts advertised on 29th January,
1999.
'
The claim of the State Government is that various petitions and appeals
F
were pending before this Court and High Court involving the claims by
candidates to the posts in Executive Branch and Allied Services which had
arisen subsequent to the advertisement under which those candiciates had
applied. The ~tate was facing serious legal difficulties. According to the State G
Government, on the one hand, there was long line of decisions of this Court
starting with Hoshiar Singh v. State of Haryana and Ors., [1993] Supp. 4 SCC
377 holding that appointment on additional posts not covered by the
requisition sent to the Commission on the basis of the selection and
recommendations made at one time would deprive the candidates who are not
eligible for appointment to the posts advertised on the last date for submission H
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A of applications mentioned in the advertisement and who became eligible for
appointment thereafter, of the opportunity of being considered for appointment
on the additional posts because if the said additional posts are advertised
subsequently those who become eligible for appointment, would be entitled
to apply for the same. The second line of decisions, according to the State
Government, are in Hooda and Sandeep Singh 's cases, which gave effect to
B aforesaid two circumstances and on that basis claims were made to the posts
in Executive Branch and other Allied Services which had arisen subsequent
to the adveI!isement under which those candidates had applied. In view of
these difficulties, the Act in question was passed removing the basis of these
decisions.
c
In respect of the Hooda and Sandeep Singh 's cases giving effect to the
circulars dated 22nd March, 1957 and 26th May, 1972, the case of the State
Government also is that no argument seems to have been advanced before
this Court based on long line of decisions that the posts beyond the number
advertised could not be filled. The stand of the State further is that it appears
D that it was not pointed out to this Court that the posts advertised in 1992 were
already filled up in the year 1996 itself and, therefore, there were no vacancies
for giving effect to the directions of the Court in favour of candidates who
appeared in the examination conducted for the posts advertised in the year
1989. This has resulted in State Government making appointments in excess
E of sanctioned posts and of persons with lower in merit, thus, adversely
affecting public interest.
F
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In respect of the circulars aforenoticed, the stand of the Government is
as follows :
"In fact, the circular dated 22.03.1957 refers to an earlier circular dated
12.07.1937 of the composite State of Punjab which is not available. A
reading of the circular dated 22.03.1957 gives the impression that it
was really intended to permit filling up of the pre-existing vacancies
which were not included in the requisition sent to the Commission.
They could be filled up within a time limit of six months from the date
of recommendations made by the Public Service Commission of the
selected candidates. However, the circular dated 26.05.1972 has gone
beyond the original intendment as reflected in the circular dated
22.03.1957 and permitted appointments to be made to vacancies which
arise within a period of six months after the recommendations have
been made by the Service Commission. This circular did not visualize
VIRENDERSINGHHOODA v. STATEOFHARYANA[SABHARWAL,J.] 731
much less deal with the contingency of the selection process taking A
a very long time, i.e., more than one year and at times several years
due to litigation or other unforeseen reasons and the consequential
effect on the claims of candidates who become eligible in the meanwhile
and who have a right to be considered under Article 14 and 16(1) of
the Constitution for appointment against vacancies which arise in the B
years subsequent to the year of the advertisement in question. These
circulars were issued at a time when the law declared in Hoshiar
Singh {1993) and other cases was not known.
One more aspect which was not considered either in Virender Singh
Hooda, Sandeep Singh 's etc. cases is that the Haryana Civil Services C
(Executive Branch) Rules, 1930, contemplate annual competitive
examination for selection of candidates for Register 'B'. These statutory
rules confer a statutory right on candidates who become eligible in
the subsequent year to be considered for vacancies which arose
subsequent to the advertisement given in the previous year. This
statutory right could not be and was not intended to be taken away D
by the circulars dated 22.03.1957 and 26.05.1972. It is well settled that
administrative circulars cannot override the right to equality conferred
by Articles 14 and 16( I) of the Constitution or a statutory provision
like Rule 9 of the said Executive Branch Rules, 1930."
At this stage, we may reproduce the statement of objects and reasons E
of the Act which read as under:-"
STATEMENT OF OBJECTS AND REASONS
Hon'ble Supreme Court, in Virender Singh Hooda's case reported as
[ 1999] 3 sec 696 held that in the light of Government circular letter F
dated March 22, 1957 and May 26, 1972 all those vacancies which had
occurred in Haryana Civil Service (Executive Branch) upto the period
of six months from the date of recommendations made by the Haryana
Public Service Commission were required to be filled out of the same
selection. Thereafter, the Hon 'ble Supreme Court in its judgment dated G
9th November, 2000 in Civil Appeal No.7422of1999 'Sandeep Singh
and Ors. v. State of Haryana and Ors.,' relating to Haryana Civil
Service (Executive Branch) and Allied Services Examination, 1993, has
inta alia held that even on first principle, it appeals to us to commend .
that the vacancies available in any particular service till the date of
interview at least should be filled in from the very same examination H
732
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SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
unless there is any statutory embargo for the same.
There is another set of decisions by the Hon'ble Supreme Court
starting with Hoshiar Singh v. State of Haryana, [1993] Suppl.4 SCC
377, in which it has been held that appointments beyond the advertised
posts cannot be made as it deprives the candidates who were not
eligible at the time of original advertisement but have acquired eligibility
subsequently, of the opportunity to compete for public employment
against such additional posts which did not form part of the original
advertisement. The Hon'ble Supreme Court found such appointments
to be violative of Articles 14 and 16 of the Constitution oflndia. This
view has been followed by the Apex Court in several subsequent
decisions. However, in Virender Singh Hooda 's case or in Sandeep
Singh 's case no argument was advanced before the Apex Court based
on the judgment in Hoshiar Singh 's case and other similar cases.
The judgments in cases of Virender Singh Hooda, Sandeep Singh
and Sujan Singh etc. have thus created multiplicity of litigation
inasmuch as various candidates who were originally selected for one
of the allied services are claiming appointment to Haryana Civil Service
(Executive Branch) or some other allied service. Also the Haryana
Public Service Commission calls candidates for interview equivalent to
thrice the number of advertised vacancies. In case subsequent
vacancies are clubbed with the advertised vacancies at a later stage,
it would.lead to more litigation even from those who were not called
for interview but otherwise would have been eligible for being called
for interview had the subsequent vacancies been clubbed initially.
Further, as a result of above-mentioned judgments of Hon 'ble Supreme
Court, two sets of candidates have got appointments against one
post.
This has brought about total uncertainty at such a late stage in the
selection for Haryana Civil Service (Executive branch) and Allied
Service made by the Haryana Public Service Commission.
Considerations like efficiency and availability of equal opportunity to
candidates who become eligible for taking up subsequent examinations
have been kept in view. Since the entire problems has arisen as a
result of recruitments made pursuant to advertisement dated 30th
August, 1989, hence this Bill has been proposed w.e.f. 29th August,
1989."
..
VIRENDER SINGH HOO DA v. ST ATE OF HARY ANA [SABHAR WAL, J.] 733
Sub-sections (2) and (3) of Section 1 and Sections 3 and 4 read as A
under:
"l. (2) It shall be deemed to have come into force with effect from the
29th August, 1989 and shall cover recommendations made by the
Commission after that date except section 5 of this Act which shall
come into force at once.
(3) It shall apply to those persons who have been or are appointed
or offered appointment to the service/posts recruitment to which is
made by holding Common/Combined Examination.
B
3. The executive instructions contained in circulars No.814-GS-37/ C
3237-S, dated June, 1937, No. 459611178-GS-37/9276 dated 10th
September, 1937, No. 475 P.S. C.37, dated 12th July, 1937, No.1637-GII-56, dated 22nd March, 1957, No.2311-GSE-72/16727, dated 26th May,
1972, No. 66/32/88-7 /GSI, dated 28th October, 1993 and No.66/80/977GSI, dated 27th February, 1998 and the notification No.G.S.R./Const./
Art.309/2002, dated 28th March, 2001 are hereby repealed.
D
4.(1) No appointment shall be made to any post or service to which
this Act applied beyond the number of posts advertised.
(2) Notwithstanding anything to the contrary contained in any
judgment, order, decree or decision of a Court of law, Act, rule, E
regulation or executive instructions, no candidates, from the date of
commencement of this Act, shall, on the basis of his merit or placement
in a Common/Combined Examin'ation, have right to seek appointment
to Haryana Civil Services (Executive Branch) and Allied Services or
other services beyond the number of advertised posts.
(3) The State Government shall not be competent to offer appointment
to a candidate, who is placed in the waiting list or who claims himself
to be in the waiting list on the basis of Common/Combined Examination,
for a post for which his name was not recommended by the
Commission:
Provided that if a candidate has been appointed or offered appointment
over the above advertised posts for any reason, the services 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:
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SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.
A
Provided further 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 this Act."
B
The questions that fall for determination are:-
c
(1)
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 (supra)?
(2)
ls the Act violative of Articles 14 and 16 of the Constitution of
India?
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
D 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.
Likewise, there is also no doubt that the legislature has power to
E remove the basis of a decision rendered by a Court by enacting a valid piece
of legislation.
One of the facets of the first question is whether a writ of mandamus
can be made ineffective by an Act of legislature.
F
The circular dated 22 March, 1957 considered in Hooda's case reads as
under:-"
Circular dated 22.03.1957
Copy ofU.O. Circular No.1673-G-ll-56 dated March 22, 1957-from Chief
G
Secretary to Government, Punjab, to all Administrative Secretaries to
Government_, Punjab.
H
Subject: Procedure to be observed by Administrative Department of
the Punjab Government in their dealing with the Punjab Public Service
Commission.
VIRENDERSINGHHOODA v. STATE OF HARYANA [SABHARWAL, J.]735
***********
A
Will the Administrative Secretaries to Government Punjab, kindly refer
to the procedure noted above as subject, circulated with Punjab
Government letter No.814-GS-37/3237-3 dated June, 1937, and
subsequent correspondence contained in Punjab Government letter
No.4596/1178-GS-37/9276 dated the 10th September, 1937 and letter B
No.475 P.Sc.37, dated the 12th July, 1937 and from the Secretary,
Punjab and North West Frontier Province, Joint Public Service
Commission, reproduced on page 29 to 35 of the booklet entitled
"Regulation and Instructions Governing the work of the Provincial
Public Service Commission in the Punjab".
2.
In paragraph 5 of the Public Service Commission letter No.475
P.S.C.37, dated the 12th July, 1937, at page 35, a time limit of6 months
has been prescribed. for filling up, out of the names recommended by
c
the Public Service Commission, additional vacancies which were not
intimated to the Public Service Commission when inviting D
recommendations. After the expiry of six months a fresh reference to
the Public Service Commission will be necessary to fill up an additional
vacancy not intimated to the Commission earlier. Government have
noticed that there is no uniformity regarding the observance of this
time limit. They desire that the procedure outlined above should be
rightly adhered to. The time limit of six months will not, however, E
apply to a case where a candidate had declined to accept the post
offered to him against a vacancy which was intimated to the Public
Service Commission. Such a vacancy can be filled up even after the
expiry of six months out of the approved list of candidates initially
received from the Commission."
The aforesaid circular is general in nature and does not refer to any
particular service ·or service rules. In law if an executive instruction is contrary
to Statutory Rules, the Rules will prevail and not the executive instructions.
Further reading of aforesaid circular shows that it is applicable to pre-existing
vacancies.
We may also reproduce the circular dated 26th May, 1972 as under :
"Circular dated 26. 05.1972
No. 23 I l-GSE-72/15727 dated the 26th May, 1972.
F
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A
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c
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F
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SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
Subject: Appointment of candidates out of the waiting list prepared
by the Haryana Public Service Commission/Haryana Subordinate
Services Selection Board.
*************
I am directed to invite your attention to the composite Punjab
Govt. Circular letter No.1673-GII-66 dated 22nd March, 1957 (copy
enclosed) and to say that according to the instruction contained in
the circular referred to such vacancies as arise within six months of
the receipt of the recommendations of the Public Service Commission
have necessarily to be filled in out of the waiting list maintained by
the Commission. In respect of the vacancies which arise after the
expiry of a period of six months it is necessary to send a requisition
to the Commission. It is, however, not clear as to how this time limit
of six months is to be counted.