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2004 (10) TMI 585

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..... structions 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 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 advertise .....

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..... he Allied Services to the State Government. The appointments to the 12 posts were made in December, I992 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, 10 and 12 respectively were not appointed 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 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 11th March, 1996. The final result was declared on 15th March, 1996 and on the same day recommendations were made by th .....

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..... etitioners in Writ Petition No.216/02) 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 4th March, 1992. The case of the aforesaid six officers concerns the advertisement 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 1992 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 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 lis .....

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..... to 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 advertisement under which those candidates had applied. In view of these difficulties, the Act in question was passed removing the basis of these decisions. 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 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 of sanctioned posts and of persons with lower in merit, thus, adversely affecting public interest. In respect .....

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..... asons 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 SCC 696 held that in the light of Government circular letter 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 9th November, 2000 in Civil Appeal No.7422 of 1999 'Sandeep Singh and Ors. v. Slate of Haryana and Ors.,' relating to Haryana Civil Service (Executive Branch) and Allied Services Examination, 1993, has inter 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 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 .....

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..... r 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. 3. The executive instructions contained in circulars No.814-GS-37/ 3237-S, dated June, 1937, No. 4596/1178-GS-37/9276 dated 10th September. 1937, No. 475 P.S. C.37, dated 12th July, 1937, No.1637-G-11-56, dated 22nd March, 1957, No.2311-GSE-72/l6727. dated 26th May, 1972, No. 66/32/88-7/GSI, dated 28th October, 1993 and No.66/80/97-7GS1, dated 27th February, 1998 and the notification No.G.S.R./Const./ Art.309/2002, dated 28th March, 2001 are hereby repealed. 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, 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 Examination, have right to seek appointment to Haryan .....

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..... ct: Procedure to be observed by Administrative Department of the Punjab Government in their dealing with the Punjab Public Service Commission. 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 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 . Z 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 of 6 months has been prescribed for filling up, out of the names recommended by the Public Service Commission, additional vacancies which were not intimated to the Public Service Commission when inviting recommendations. After the expiry of six months a fresh reference to the Public Service Commissi .....

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..... tions to the concerned department for the posts to be filled in through direct appointment in Haryana Public Service Commission/Haryana Subordinate Services Selection Board will also intimate to the department whether waiting list for filling the additional vacancies occurring thereafter is available with them or not. If the number of additional qualified candidates be less than five then two recommendations only to the extent of the number of qualified candidates will be made by the Commission/ Board. (b) If the Commission/board make recommendations regarding a post to the department and additional vacancies occur in that department within a period of six months of the receipt of these recommendations then the vacancies which occur later on can be filled in from amongst the five additional candidates/recommended by the Commission/Board. In case the number of vacancies which occur subsequently exceeds five then it will be necessary to obtain more names from the waiting list maintained by the Commission/Board. The date on which the department makes a reference to the Commission/Board will be relevant in regard to the prescribed limit of six months from making appointments after o .....

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..... is neither necessary nor possible for us to go into this question. Now, we may also notice relevant Punjab Civil Service (Executive Branch) Rules, 1930 (for short 'the Rules') as amended from time to time. We are concerned with the Rules as applicable in Haryana. Rule 3 deals with strength of Haryana Civil Service (Executive Branch) Cadre. The said rule reads as under: Rule 3. Strength of Cadre-(1) The strength and composition of the Haryana Civil Service (Executive Branch) Cadre shall be such as may be determined by the Government from time to time. (2) The Government shall, at the interval of every three years, re-examine the strength and composition of the Haryana Civil Service (Executive Branch) Cadre and may make such alterations therein as it deems fit: Provided that nothing in this rule shall be deemed to affect the power of the Government to alter the strength and composition of the Cadre at any time. Rule 5 deals with the appointments from among accepted candidates. The concept of accepted candidates is given in Rule 6 which sets out various registers to be maintained. Rule 7 concerns selection of candidates for Register A-I and Rule 8 selection o .....

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..... in register B in order of merit, the names of such number of candidates as it may from time to time determine, from amongst those who have been declared as qualified in the examination by the Haryana Public Service Commission. Provided that for purpose of ensuring adequate representation qualified Scheduled Caste Candidates their names may be brought on Register B, in order of merit inter se, irrespective of their position on the list of qualified candidates as a whole with effect from the examination held in February, 1952. Rule 17 which deals with appointment of registered candidates reads as under : Rule 17. Appointment of registered candidates to service.-The Governor of Haryana shall ordinarily make appointments to the Service in pursuance of rule 5 from amongst candidates whose names are entered in the various registers in rotation as follows:- From Register B From Register A-1 From Register B From Register A-II From Register B From Register A-II From Register C From Register B From Register A-I From Register B From Register A-II From Register B From Register A-I From Register B From Register C ... two candidates ... one candidate ... two candidates ... one cand .....

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..... a new disability in respect to transactions or considerations already past . Judicial Dictionary: (13th Edition) K.J. Aiyar, Butterworth, pg.857, states that the word 'retrospective' when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) re-opening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases: Permanent Edition: Vol.37A page 224/225. defines a 'retrospective' or retroactive law as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. In 73rd volume of Harvard Law Review, page 692 it was observed that it is necessary that the legislature should be able to cure inertent defects in statutes or their administration by making what has been aptly called 'small repairs'. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall si .....

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..... . 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 Hooda's case. Now, we may note the line of decisions on the aspect of filling up of more vacancies than advertised with a view to properly appreciate the problem which the State, as above noticed, was facing. In Hoshiar Singh's case (supra), the Director General of Police on 23rd October, 1987 had sent a requisition to the Selection Board duly constituted under Article 309 of the Constitution and vested with the provision of selecting and recommending candidates for selecting suitable candidates for appointment on six posts of Inspector of Police. The Selection Board issued an advertisement dated 22nd January, 1988 inviting applications for the said posts. The applicants who applied in response to the advertisement took written test and on the basis of result thereof, candidates were called for physical efficiency and measurement test and viva voce between 28th January, 1991 and 31st January', 1991. The Director General of Police, h .....

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..... mend names of 19 persons for appointment. It was held by this Court that the appointments on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the post on the last date for submission 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. It was held that the High Court was right in coming to the conclusion that the selection of 19 persons was not sustainable. In State of Bihar and Ors. v. Secretariat Assistant Successful Examinees Union 1986 and Ors., [1994] 1 SCC 126, the Selection Board issued an advertisement in the year 1985 inviting applications for the posts of Assistants falling vacant up to the year 1985-86. The number of vacancies as then existing was announced on August 25, 1987, the examination held in November 1987 and the result was published only in July 1990. Immediately thereafter out of successful candidates 30 .....

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..... on that was accepted by this Court was that since the advertisement was only for 11 vacancies, the merit list of 20 was bad and violative of the rules. It was observed that the moment those 11 posts are filled up within two years of the publication of the list, the list will get exhausted and if for any reason these 11 vacancies could not be filled up by the time one year from the date of publication of the list is over, even then the list would get exhausted and fresh recruitment will have to be made in the light of fresh requisition from the State. In Hooda's case, it was held that in terms of the circulars dated 22nd March, 1957 and 26th May, 1972 when vacancies arise within six months from the receipt of the recommendations of the Commission, they have to be filled up out of the waiting list maintained by the Commission. Further, it was held that when these vacancies arise within a period of six months from the date of previous selection, these circulars are attracted and hence the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in the matter to fill up such posts from .....

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..... sesses the competence which it claims over the subject- matter and whether in making the validation it removes the defect which the courts had found in the existing law. It is equally well settled that 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 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 which such decision is based {I.N. Saksena and Anr. v. State of Madhya Pradesh [1976] 4 SCC 750]}. In Saxena's case facts in brief were that the appellant attained the age of 55 years on 22nd August 1963. On 28th February, 1963, by a memorandum, the State Government raised the age of compulsory retirement to 58 years. It, however, empowered the Government to retire an employee after the age of 55 years. This provision, however, was not incorporated in the statutory rules. On 11th September, 1963, the respondent passed an order retiring the appellant. The ord .....

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..... f the legislature but the latter is within its permissible limits [M/s. Tirath Ram Rajindra Nath, Lucknow v. State of U.P. and Anr. [1973] 3 SCC 585]. The reason for this lies in the concept of separation of powers adopted by our constitutional scheme. The adjudication of the rights of the parties according to law is a judicial function. The legislature has to lay down the law prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law [I.N. Saksena's case (supra)]. 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 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 of separation of powers. {Re: Cauvery Water Disputes Tribunal, [1993] Supp. I SCC 96(11)]}. When a particular Rule or the Act is interpreted by a court of law in a specified manner and the law .....

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..... ision rendered by the High Court so that the decision could not have been given in the altered circumstances. In State of Haryana and Ors. v. Karnal Co-op. Farmers ' Society Limited and Ors., [1993] 2 SCC 363, after noticing various decisions, this Court concluded that a legislature while has the legislative power to render ineffective earlier judicial decisions, by removing or altering or neutralizing the legal basis in the unamended law on which such decision were founded, even retrospectively, it does not have the power to render ineffective the earlier judicial decision by making a law which simply declares the earlier judicial decisions as invalid or not binding for such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by a legislature under our Constitution. Whether retrospective or prospective the law has to be consistent with the provisions of Part III of the Constitution It is not possible to accept the contention that vested rights cannot 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 con .....

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..... High Court, which was relied upon by the petitioners is not a mere declaratory judgment holding an impost or tax to be invalid so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. It is a judgment giving effect to the right of the petitioners to annual cash bonus under the settlement by issuing a writ of mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy lay by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation. On the basis of these observations, it was sought to be contended that in the case of mere declaratory judgment, the legislature can remove the defects pointed out by the Court by amending the law with retrospective effect but when the rights accrue under writ of mandamus, the said rights cannot be taken away by retrospective legislation. The observations in para 9 relied upon have to be understood in the context of the .....

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..... t. The Court held 'this right under the judgment was not sought to be taken away by the impugned Act.' The judgment continued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus in obedience of the writ of mandamus. It was further noticed that the error committed by the LIC was that it withdrew the LPA and allowed the judgment of the learned single judge to become final. By the time LPA came up for hearing, the impugned Act had already come into force and the Life Insurance Corporation could, therefore, have successfully contended in the Letter Patent Appeal, that, since the settlement, in so far as it provided that payment of annual cash bonus, was annihilated by the impugned Act with effect from 1st April, 1975, Class III and Class IV employees were not entitled to annual cash bonus for the year 1st April, 1975 to 31st March, 1976 and hence no writ of mandamus could issue directing the Life Insurance Corporation to make payment of such bonus. It is noteworthy that the Court observed that 'if such contention had been raised, there is little doubt, subject of course to any constitutional challenge to the validity of the impugned Act, that th .....

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..... proposition lay down in various Constitution Bench decisions referred to above that the vested rights can be taken away by retrospective legislation by removing the basis of a judgment so long as the amendment does not violate the fundamental rights. We are unable to accept the broad proposition sought to be contended for the petitioners that the effect of the writs issued by the courts cannot be nullified by legislature by enacting a law with retrospective effect. The question, in fact, is not of nullifying the effect of writs which may be issued by the High Court or this Court. The question is of removing the basis which resulted in issue of such a writ. If the basis is nullified by 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. In our view, repeal of the circulars was permissible. The circulars were validly repealed by the impugned Act and it made the law declared in Hooda's case ineffective. The learned counsel for the petition .....

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..... ions. The contention that the foundation of the High Court judgment was displaced by the impugned Act was not pressed. It was conceded by the State that the impugned Act did not displace the basis or foundation of the judgment, Reiterating the well settled proposition that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such enactment having retrospective effect, it was observed in Para 15, on which strong reliance has been placed on behalf of the petitioner that 'this is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise. These observations cannot be read to mean that where on interpretation of existi .....

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..... of India and Ors. v. Tushar Ranjan Mohanty and Ors,, [1994] 5 SCC 450 to the effect that 'when a person is deprived of an accrued right vested in him under a statute or under the Constitution he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation.' It is necessary to bear in mind the background under which the aforesaid observations were made to properly and correctly understand the real intent thereof. The observations were made in the context of contention one and two referred to in para 8 of the report. The first contention was that the retrospective operation of the amended rule takes away the vested rights of the general category candidates senior to respondents 2 to 9 and it is settled proposition of law that the vested rights cannot be abrogated by retrospective legislation. The second contention was that the retrospective operation of the amended rule is arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. Both these contentions were considered in para 9 of the report. It was noticed that the rule in question gives a .....

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..... n different. Before concluding, a useful reference can also be made to the decision in the case of Pram Singh and Ors. v. Haryana State Electricity Board and Ors., [1996] 4 SCC 319 holding that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. 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 Art .....

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..... ssailed 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 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. 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 to 45% 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 .....

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..... 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, l.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 tacts 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 nu .....

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..... 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. (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. Delay condoned. The special leave petition is disposed in the aforesaid terms. Interlocutory Application No.4 of 2004 is allowed in above terms. All the writ petitions and Civil Appeals are also disposed of in the aforesaid terms leaving th .....

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