VIRENDER SINGH HOODA AND ORS. v. STATE OF HARYANA AND ANR.

A in implementation of the court's decision. Such a course is impermissible

In Lohia Machines Ltd and Anr. v. Union of India and Ors., [(1985) 2 sec 197], on the aspect of reasonableness and arbitrariness of amending law, it was observed that the power and competence of Parliament to amend any statutory provision with retrospective effect cannot be doubted. Any B retrospective amendment to be valid must, however, be reasonable and. not arbitrary and must not be violative of any of the fundamental rights guaranteed under the Constitution. In considering the question as to whether the legislative power to amend a provision with retrospective operation has been reasonably exercised or not, it becomes relevant to enquire as to. how the retrospective effect of the amendment operates.

In Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors., [1997] 6 SCC 623] the Constitution Bench while holding that the rule which operates in future so as to govern future rights of those already in service cannot be assailed on the ground of retro-activity as being violative of Articles 14 and 16 of the Constitution, observed that a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. (emphasis supplied) In the said decision, the respondents-Railway Employees E belonging to category of running staff had retired from service on 1st January, 1973 and their pensionary benefits were to be calculated on the basis of 'average emoluments'. The 'running allowance' upto maximum of 75% was taken as part of 'average emoluments' for determination of pension and gratuity of the employees. By letter dated 22nd March, 1976, the percentage of 'running allowance' was reduced from 75% to 45% retrospectively w.e.f. F 1st April, 1976. This was quashed by the Central Administrative Tribunal which order became final since it was not further challenged. The Railway Board, however, issued statutory notification dated 5th December, 1988 in which the existing percentage of 'running allowance' which form part of 'average emoluments' was reduced to45% w.e.f. 1st Jaunary, 1973. The said notification was quashed by the Central Administrative Tribunal to the extent it reduced the rate retrospectively on the ground that they were violative of Article 14 of the Constitution. The decision of the Tribunal was upheld to the extent it had the effect of reducing the amount of pensionary benefits of the employees but, at the same time, it was held that rule which operates in future · s.o as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the

VIRENDERSINGH HOODA v. STATE OF HARYANA[SABHARWAL,J.]759

Constitution. The Constitution Bench also made reference to the case of A Triloki Nath Khosa, [1974] l SCC 19. In Triloki Nath's case rules had been framed altering the criteria of eligibility for promotion from the post of Assistant Engineer to the post of Executive Engineer and the same was challenged on the ground of retrospectivity by the Assistant Engineers who were in service on the date of making these rules. Rejecting the said contentiC'n, it was held that the impugned rules do not recall a promotion already made or reduce a pay-scale already granted. (emphasis supplied) It was also observed that the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If the rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirements in public interest ought to have foundered on the rock of retroactivity. But such is not the implication of service rules nor is it their true description to say that because they affect existing employees they are retrospective. D Before concluding, we may note that the facts ofC.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 Malhon in 1989 E 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 herein.before were on the merit list at serial Nos.8, IO 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 doe~ not call for any interference qua the respondents in these appeals.

On the aforesaid analogy, l.A.No.4 of2004 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 aforel'loted and also satisfy condition placed in Sandeep Singh 's case by this Court. They are thus H

p. 760 Copy page pinpoint

A entitled to be given similar treatment as Ajay Malik and Arvind Malhan ia 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 of2000 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, ifthere 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. D 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 ne'<t year, the entire selyction process of the previous advertisement is over. Another aspect E 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 F which has attained finality. Ordinariiy 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 G that as it may, in view of aforesaid discussion our conclusions are as under:

(!) 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. H

VIRENDERSINGHHOODA v. STATEOFHARYANA[SABHARWAL,J.]761

(2) The Act is not violative of Articles 14 and 16 of the Constitution A 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. B 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 ultru vires. In all other respects, it is valid.

(4) The directions of the High Court in favour of respondents Ajay C Malik and Arvind Malhan subject matter of Civil Appeal Nos.3937- 38 of2001 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 Cou;t in Civil Appeal Nos.8385 to D 8393 of 2000, in view of the provisions of the Act, are set aside.

Delay condoned. The special Iea;e petition is disposed in the aforesaid terms.

Interlocutory Application No.4 of 2004 is allowed in above terms. E All the writ petitions and Civil Appeals are also disposed of in the aforesaid terms leaving the parties to bear their own costs.

K.K.T. Writ Petitions and appeals disposed of.