VIRENDER SINGH HOODA Vs. STATE OF HARYANA

JUDGEMENT

(1.) 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, 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 comnion/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 and Ors. v. State of Haryana and Anr. and Sandeep singh's case. 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.