# Ashutosh Kumar Upadhyay & Ors v. Vijay Kishore Anand & Ors

- **Citation:** (2021) 7 ILRA 520
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** Special Appeal No. 296 of 2020
- **Bench:** Ramesh Sinha, Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashutosh-kumar-upadhyay-ors-v-vijay-kishore-anand-ors-47219
- **Pages:** 48

## Headnote

Law
-
UP
Transportation
Taxation (Subordinate Service Rules),
1980 - Rule 5 - Seniority list - Power of
executive to temper it - Extent of -
Seniority dispute occurring between the
persons directly appointed as PTGTO and
persons having been promoted from
PTGTS to PTGTO on the strength of GO
dated 03.05.2011 abolishing the post of
PTGTS
(Passenger
Tax,
Goods-Tax
Superintendent) and upgrading it to the
post of PTGTO (Passenger Tax, GoodsTax Officer) - Dispute already settled by
a Seniority list dated 17.11.2017 issued
in
compliance
of
Judgment
dated
13.04.2017 of the Division Bench -
Respondent
again
disturbed
this
seniority
list
and
issued
another
seniority list dated 30.01.2019 placing
the upgraded PTGTO above to the
directly appointed PTGTO - Validity -
Held, the seniority list dated 17.11.2017
was at no point of time challenged
before any Court or Tribunal. It is now
well settled that once a seniority list has
been finalised by the Executive and not
challenged before any Court or Tribunal,
subsequently, it is not open for the
Executive to tamper with such seniority.
(Para 29, 31, 38 and 149)
B. Doctrine of Precedent - Rule of Staredecisis - Exception - Per-incuriam -
Scope and applicability - Concept of perincuriam has been developed by the
English Courts which is to relax or dilute
the Rule of Stare-decisis. The general
and sacrosanct proposition, what is
quotable in law is binding, can be
avoided and ignored if it is rendered
'Inignoratiun' of a Statue or other
'Binding Authority' - Doctrine of perincuriam
merely
takes
away
the
precedent value of a decision but in no
manner it dilutes or affects the binding
nature of the aforesaid decision on the
parties inter-se. (Para 84 and 87)
C. Civil Procedure Code,1908 - Section
11 - Explanation IV - Doctrine of res
judicata and constructive res judicata -
Applicability
-
Even
an
erroneous
decision on a question of law attracts
the doctrine of res-judicata in between
the parties - S. 11 generally comes into
play in relation to civil suits. But apart
from the codified law, the doctrine of res
judicata has been applied since long in
various other kinds of proceedings and
situations by Courts in England, India
and other countries - The rule of
constructive res judicata is engrafted in
Explanation IV of S. 11 of the Code of
Civil Procedure, and in many other
situations also principles not only of
direct res judicata but of constructive
res judicata are applied. (Para 93 and
95)
D. Interpretation of Statute - 'Note'
appended to any provision - Nature and
effect - Marginal or Explanatory - 'Note' is
only explanatory to the main provision -
It cannot derogate from the explicit words
of substantive provisions - It cannot have
a larger effect than the Rule itself. (Para
120, 121, 128)
Special Appeal dismissed (E-1)
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
521
Cases relied on :-

## Text

_Characters 0–39,867 of 157,399. This is a partial read: ask again with offset=39867 for what follows._

520 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)07ILR A520
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 296 of 2020
along with
Spl. Appeal Nos. 302 of 2020 & 303 of 2020

Ashutosh Kumar Upadhyay & Ors.
 ...Appellants
Versus
Vijay Kishore Anand & Ors. ...Respondents

Counsel for the Appellants:
Shobhit Mohan Shukla, Surya Narain Mishra

Counsel for the Respondents:
Gaurav Mehrotra

A.
Civil
Law
-
UP
Transportation
Taxation (Subordinate Service Rules),
1980 - Rule 5 - Seniority list - Power of
executive to temper it - Extent of -
Seniority dispute occurring between the
persons directly appointed as PTGTO and
persons having been promoted from
PTGTS to PTGTO on the strength of GO
dated 03.05.2011 abolishing the post of
PTGTS
(Passenger
Tax,
Goods-Tax
Superintendent) and upgrading it to the
post of PTGTO (Passenger Tax, GoodsTax Officer) - Dispute already settled by
a Seniority list dated 17.11.2017 issued
in
compliance
of
Judgment
dated
13.04.2017 of the Division Bench -
Respondent
again
disturbed
this
seniority
list
and
issued
another
seniority list dated 30.01.2019 placing
the upgraded PTGTO above to the
directly appointed PTGTO - Validity -
Held, the seniority list dated 17.11.2017
was at no point of time challenged
before any Court or Tribunal. It is now
well settled that once a seniority list has
been finalised by the Executive and not
challenged before any Court or Tribunal,
subsequently, it is not open for the
Executive to tamper with such seniority.
(Para 29, 31, 38 and 149)
B. Doctrine of Precedent - Rule of Staredecisis - Exception - Per-incuriam -
Scope and applicability - Concept of perincuriam has been developed by the
English Courts which is to relax or dilute
the Rule of Stare-decisis. The general
and sacrosanct proposition, what is
quotable in law is binding, can be
avoided and ignored if it is rendered
'Inignoratiun' of a Statue or other
'Binding Authority' - Doctrine of perincuriam
merely
takes
away
the
precedent value of a decision but in no
manner it dilutes or affects the binding
nature of the aforesaid decision on the
parties inter-se. (Para 84 and 87)
C. Civil Procedure Code,1908 - Section
11 - Explanation IV - Doctrine of res
judicata and constructive res judicata -
Applicability
-
Even
an
erroneous
decision on a question of law attracts
the doctrine of res-judicata in between
the parties - S. 11 generally comes into
play in relation to civil suits. But apart
from the codified law, the doctrine of res
judicata has been applied since long in
various other kinds of proceedings and
situations by Courts in England, India
and other countries - The rule of
constructive res judicata is engrafted in
Explanation IV of S. 11 of the Code of
Civil Procedure, and in many other
situations also principles not only of
direct res judicata but of constructive
res judicata are applied. (Para 93 and
95)
D. Interpretation of Statute - 'Note'
appended to any provision - Nature and
effect - Marginal or Explanatory - 'Note' is
only explanatory to the main provision -
It cannot derogate from the explicit words
of substantive provisions - It cannot have
a larger effect than the Rule itself. (Para
120, 121, 128)
Special Appeal dismissed (E-1)
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
521
Cases relied on :-
1. Sundaram Pillai & ors. Vs V.R. Pattabiraman
& ors.; 1985 (1) SCC 591
2. Satendra Kumar & ors. Vs Raj Nath Dubey &
ors.; 2016 (14) SCC 49
3. Mathura Prasad Bajoo Jaiswal & ors. Vs
Dossibai N.B. Jeejeebhoy; 1970 (1) SCC 613
4. Vinay Kunar Verma & ors. Vs St. of Bihar &
ors.; 1990 (2) SCC 647
5. H.S. Vankani & ors. Vs St. of Guj. & ors.;
2010 (4) SCC 301
6. Ambika Prasad Mishra Vs State of U.P. & ors.;
1980 (3) SCC 719;
7. A.R. Antulay Vs R.S. Nayak & anr. ; 1988 (2)
SCC 60
8. Dr. Subramaniam Swamy Vs St. of T.N. &
ors.; 2014 (5) SCC 75
9. Madan Mohan Pathak & ors. Vs U.O.I. & ors.;
1978 (2) SCC 50
10. Chairman, Railway Board & ors. Vs C.R.
Rangadhamaih & ors.; 1997 (6) SCC 623,
11. J.S. Yadav Vs St. of U.P.; 2011 (6) SCC 570
12. Central Board of Dawoodi Bohra Community
& anr. Vs St. of Maharashtra & anr. ; 2005 (2)
SCC 673.
13. St. of U.P. Vs Nawab Hussain; 1977 (2) SCC
806
14. Ferro Alloys Corporation Ltd. & anr. Vs
U.O.I. & ors.; 1999 (4) SCC 149
15. Commissioner of Income Tax Vs M/s. Essar
Teleholdings Ltd.; 2018 (3) SCC 253
16. United India Insurance Co. Ltd. Vs Orient
Treasurers Pvt. Ltd.; 2016 (3) SCC 46
17. Rai Sudhir Prasad Vs St. of Bihar & ors.;
2004 (13) SCC 25
18. Chairman, Railway Board & ors. Vs C.R.
Rangadhamaih & ors.; 1997 (6) SCC 623
19. Dr. B.S. Yadav Vs St. of Har. & ors.; 1980
(Supplementary) SCC 524
20. Chandrawathi P.K. & ors. Vs C.K. Saji &
ors.; 2004 (3) SCC 734
(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Jaspreet Singh, J.)

Introduction:-

1. This is a batch of three intracourt
appeals, preferred under Chapter VIII, Rule
5 of the Allahabad High Court Rules, 1952,
calling in question the judgment and order
dated 20.10.2020 passed by the learned
Single Judge in W.P. No. 12438 (SS) of
2019 (Vijay Kishor Anand and Others Vs.
State of U.P. and Others).

2. Since all the three intracourt
appeals, challenge the same judgment dated
20.10.2020 and the issues both of facts and
law raised herein are also common, hence,
all the three appeals are being decided by
this common judgment.

3. The appellants in all the three
appeals were the private respondents before
the Writ Court and were working as
Passenger Tax/Goods Tax Superitendent
(hereinafter
referred
to
as
"The
P.T.G.T.S."), and their posts under the
Uttar Pradesh Transportation Taxation
(Subordinate
Service
Rules),
1980
(hereinafter referred to as the "Rules of
1980") have been upgraded and merged
with the post of Passenger Tax/Goods Tax
Officers (P.T.G.T.O.) by means of a
Government Order dated 03.05.2011.

4. The writ petitioners, who are the
private respondents in these appeals, are the
persons who were directly recruited to the
post of Passenger Tax, Goods Tax Officer,
after due selection from the Uttar Pradesh
522 INDIAN LAW REPORTS ALLAHABAD SERIES
Public Service Commission and were
inducted in service in the year 2013.

5. The tussle between the appellants
and the respondents is in respect of their
seniority. The learned Single Judge by
means of the impugned judgment dated
20.10.2020 taking note of the Division
Bench decision of this Court dated
13.04.2017 passed in W.P. No. 1802 (SB)
of 2015 along with the effect of the Uttar
Pradesh
Transportation
Taxation
(Subordinate
Service
Rules,
(1st
Amendment) Rules,
2018
(hereinafter
referred to as the 1st Amendment Rules of
2018) as well as the effect of the seniority
list dated 17.11.2017 and noting the rival
submissions, did not accept the version of
the appellants herein and set aside the order
dated 15.04.2019 passed by the Transport
Commissioner and also set aside the
seniority list circulated by the Transport
Commissioner of the same date i.e.
15.04.2019 and affirmed the seniority list
dated 17.11.2017 as a consequence the
respondents are poised to be placed above
the apppellants in the seniority list.

Factual matrix:-

6. In order to appreciate the
cotroversy involved, the facts giving rise to
these appeals is being noticed first. There
has been several rounds of litigations,
between the two class, one, i.e. the
appellants belonging to the Class of
Passenger Tax/Goods Tax Superintendants
(P.T.G.T.S) and only by Govt. Order dated
03.05.2011 their post was merged with
P.T.G.T.O. and the respondents belong to
other class, who are the persons directly
appointed as Passenger/Tax Goods Tax
Officers (PTGTO), which shall be noticed
in the subsequent paragraphs herein.

7. Admittedly, the Service Rules of
1980 which were applicable to the parties
contemplated 3 class of posts, comprising
the cadre of service, (i) P.T.G.T.O. (ii) Tax
Superitendence & (iii) P.T.G.T.S.

The Rule 5 of the Service Rules
of 1980 provides for source of recruitment
which is being reproduced hereinafter for
convenient perusal.

"5.
Source
of
recruitment--
Recruitment to the various categories of
posts in the service shall be made from the
following sources--
(I) Passenger Tax, Goods-Tax Officer- (i)
By
direct
recruitment
through
the
Commission.

(ii) By promotion through the
Commission from amongst--

(a)
the
permanent
Tax
Superintendent/Passenger Tax/Goods Tax
Syperintendents who have put in at least
five years of continuous service as such:

(b)
the
permanent
Assistant
Public Prosecutors who have put in at least
five years of continous service as such; and

(c)
the
permanent
Head
Assistants, Head Clerks of the Transport
Commissioner's Office, who have put in at
least five years of continuous service as
such:

Provided that as far as possible
the recruitment shall be so arranged that
50 per cent posts in the cadre are held by
direct recruits and rest by promotion as
follows:-

(a) Tax Superintendent/Goods
Tax,
Superintendents/Passenger
Tax
Superintendents--40 per cent;

(b) Assistant Public Prosecutors5 per cent.

(c) Head Assistant/Head Clerks in
Transport Commissioner's Office-5 per cent.
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
523

(2)
Tax
Superintendents.-
By
promotion through the Commission from
amongst the permanent passenger Tax/Goods
Tax Superintendents.

(3)
Passenger/Goods
Tax
Superintendents.-- (i) By direct recruitment
through the Commission.

(ii) By promotion through the
Commission from amonst:-

(a) the permanent Section in
Charges
Noter
and
Drafters
and
Stenographers of Transport Commissioner's
Office who have put in at least five years of
continuous service as such; and

(b) the permanent Head Clerks,
Head
Clerk-cum-Accountants
and
Stenographers in the Regional Transport
Offices, who have put in at least five years of
continuous service as such;

Provided that, as far as possible,
the recruitment shall be so arranged that 50
per cent posts in the cadre are held by direct
recruits, and rest by the promotion as
follows:-

(a) Section in charge and Noter
and Drafters -15 per cent.

(b) Stenographers in Transport
Commissioner's Officer- 14 per cent

(c) Stenographers in Regional
Offics-14 per cent."

8. Rule 5 indicates that the P.T.G.T.O.
has two source of recruitment (i) by direct
recruitment through the Commission; (ii)
by promotion through the Commission
amongst
the
Permanent
Tax
Superitendent/Passenger Tax/ Goods Tax
Superitendents who have put in five years
of continous service, and also from
amongst
Permanent
Assistant
Public
Prosecutor who have put in five years of
continous
service,
Permanent
Head
Assistants, Head Clerks of the Transport
Commissioners Office also who have
put in five years of continous service.

9. The appellants herein were working
as P.T.G.T.S. The record would indicate
that on 18.03.2011 recommendations were
made by the Pay Committee (2008) in
respect of the Transport Department.
Amongst other recommendations inter alia,
it also recommended that the posts of
P.T.G.T.S. be merged with the posts of
P.T.G.T.O. while fixing the cadre post
strength to 120.

10. It was also recommended that all
the posts of P.T.G.T.S. be upgraded as
P.T.G.T.O. The combined strength would
be 120 and as and when the posts of
P.T.G.T.O. would fall vacant, the said
persons would be adjusted against the said
posts fixing the final strength at 120. By the
same recommendations, the payscales of
P.T.G.T.S. was also upgraded to be at par
with that of P.T.G.T.O.

11. It is in furtherance of the aforesaid
recommendations that the Government
Order dated 03.05.2011 was issued. By the
said Government Order dated 03.05.2011,
the posts of P.T.G.T.S. were abolished and
all such persons working on the said post
were upgraded to P.T.G.T.O. The said
Government Order also provided that the
Service
Rules
would
be
amended
appropriately and that the Government
Order dated 03.05.2011 shall take effect
immediately.

12. The aforesaid Government Order
dated 03.05.2011 was assailed by the
Ministerial Service Association Transport
Commissioner Office before a learned
Single Judge of this Court in W.P. No.
524 INDIAN LAW REPORTS ALLAHABAD SERIES
2811 (S/S) of 2011 (Ministerial Service
Association
Transport
Commissioner
Office, Lucknow Vs. State of U.P. and
Others).

The primary ground of challenge to
the
aforesaid
Government
Order
dated
03.05.2011 was on the premise that the restructuring of the cadre of P.T.G.T.O. has been
done without amending in the Rules of 1980
and that the recommendations of the Pay
Committee could not be implemented without a
recommendation from the Government or the
Transport Department and as such the abolition
of the posts of P.T.G.T.S. has jeopardised the
chance of promotion of the persons such as
petitioners of the said writ petition.

Considering the submissions, an
interim order, dated 27.05.2011, was passed in
the said petition directing the parties to maintain
status-quo as it existed on 27.05.2011. The
relevant portion of the order dated 27.05.2011 is
being
noted
hereinafter
for
convenient
reference.

"Heard Sri S.K. Kalia, learned Sr.
Advocate assisted by Sri Rajan Roy.

Learned counsel for the petitioner
submits that the impugned order dated
3.5.2011,
restructuring
the
cadre
of
Passengers/Goods Tax Officer has been done
without amendment in the relevant rules and
even without any recommendation from the
Government or Transport Department.

Further submission is that the Pay
Committee has no jurisdiction to make any such
recommendation for restructuring of the cadre.
The abolition of posts has jeopardized the
chance of promotion of the petitioners.

Dr. L.P. Misra appearing for the
opposite
party
no.
5
submits
that
restructuring of the cadre can be done even
without amendment in the rules. He further
submits that the Pay Committee has made
deliberation
with
the
concerning
department
as
well
as
the
State
Government
and
the
committee
has
jurisdiction to make such recommendation.

The learned Standing Counsel
has to make submissions in this regard. The
matter requires consideration.

Put up on Monday i.e. 30.5.2011,
as fresh.

Till the next date of listing, status
quo as is existing today shall be maintained
by the parties."

13. While the aforesaid writ peititon
remained pending, selections for the year
2009 to the vacant posts of P.T.G.T.O. had
been advertised through the U.P. Public
Service
Commission
and
after
due
selection, the respondents herein were
selected, however, they could not join on
account of the fact that the interim order
dated 27.05.2011 was operating in W.P.
No. 2811 (S/S) of 2011.

14. The State Government in order to
accommodate the respodents herein made
an application for modification/clarification
of the order dated 27.05.2011 in W.P. No.
2811 (SS) of 2011 wherein this Court
considering the facts and circumstances
modified
the
interim
order
dated
27.05.2011 vide order dated 22.02.2013.
The relevant portion of the aforesaid order
reads as under:-

"In this view of the matter, the
order dated 27.5.2011 is modified to the
extent
that
15
selected
incumbents
selected against 50% direct recruitment
quota shall be allowed to join on the post
in
question,
however,
their
selection/joining shall be subject to
further orders passed in the writ petition.

Subject
to
aforesaid
modification, the order of status quo as
directed
earlier
shall
continue
to
operate."
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
525

15. It is in this manner that the
respondents herein came to be inducted in
the service as P.T.G.T.O. and have been
performing their duties since the year 2013
onwards.

16. On 04.12.2014, an eligibility list
was prepared which was forwarded to the
Public Service Commission, Uttar Pradesh
in respect of those persons who were
initially appointed as Assistant Regional
Inspectors (Technical) and were upgraded
and merged in the cadre of Regional
Inspector
(Technical)
and
also
the
employees
who
were
appointed
as
P.T.G.T.S. who were upgraded and merged
on the post of P.T.G.T.O.

17. Certain Goods/Passengers Tax
Superintendent who were promoted on the
post of Goods/Passengers Officers on
12.11.2009 along with the direct recruits on
the post of P.T.G.T.O. who were appointed
in the year 2010 preferred a W.P. bearing
No.A-60158 of 2014 (Sri Narain Tripathi &
others Vs. State of U.P. & another) before a
coordinate
Bench
of
this
Court
at
Allahabad seeking forwarding of their
names to the Public Service Commission
for being considered for promotion on the
post of Assistant Regional Transport
Officers.

18. The said writ petition bearing
Writ No. A- 60158 of 2014 was disposed of
finally by means of judgment and order
dated 09.12.2014 with a direction to the
State Government to forward the list of
P.T.G.T.O. for consideration for promotion
on the post of Assistant Regional Transport
Officers. It was also clarified that the list of
Regional Inspectors (Technical) which had
already been forwarded by the State
Government to the Commission shall be
considered by the Commission together
with the list of Goods/Passengers Tax
Officers which shall be forwarded by the
State Government in pursuance of the
order/judgment passed by this Court dated
09.12.2014. The relevant portion of the said
order is being reproduced for convenient
reference.

"We, therefore, direct that the
State Government shall also forward the
list of Passenger/Goods Tax Officers to the
Commission for consideration of the names
of the Passenger/Goods Tax Officers for
promotion to the post of Assistant Regional
Transport Officers. It is also made clear
that the list of the Regional Inspectors
(Technical)
which
has
already
been
forwarded by the State Government to the
Commission shall be considered by the
Commission together with the list of
Passenger/Goods Tax Officers which shall
now be forwarded by the State Government
to the Commission.

The writ petition is allowed to the
extent indicated above."

19. Significantly, few of such
similarly situated persons also preferred
another Writ Petition claiming similar relief
bearing W.P. No. A 2135 of 2015 which
also came to be decided by means of
judgment and order dated 21.01.2015 in
terms of the judgment and order dated
passed in W.P. No. A 60158 of 2014.

20. It is in this backdrop, it is asserted
by the respondents, herein, having learned
that
the
State
Government
without
examining the relevant issue was sending
the names of such persons claiming to have
merged in the cadre of P.T.G.T.O. on the
526 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of the Government Order dated
03.05.2011, hence, the respondents herein
preferred their objections. Since no heed
was paid to the said objections, the
respondents herein preferred W.P. No. 336
(S/B) of 2015 (Irshad Ali and Others Vs.
State of U.P. and Others). During the
course of hearing, it was informed to the
respondents herein that the objections of
the respondents had been rejected, hence,
the respondents requested to not press the
aforesaid writ petition with liberty to file
afresh challenging the order of Transport
Commissioner which was permitted by the
Court by means of order dated 26.03.2015.
The relevant portion of the order dated
26.03.2015
is
being
reproduced
for
convenient reference:-

"The petitioner has challenged
the Government Order dated 3 May 2011,
whereby the post of Passenger/Goods Tax
Superintendent has been merged with the
post of Passenger/Goods Tax Officer.
However, at this stage learned counsel for
the petitioner has submitted that the
petitioners' had also made a representation
to
the
Transport
Commissioner
for
redressal of their grievance, which has
been rejected. Therefore, they want to
challenge
the
order
passed
by
the
Transport Commissioner by way of a fresh
writ petition and thus he seeks permission
to withdraw the writ petition with liberty to
file a fresh writ petition.

In view of circumstances stated
above, we hereby accept the petitioners'
request and dismiss the writ petition as not
pressed with liberty to file a fresh writ
petition."

21. Significantly, the W.P. No. 21811
(S/S) of 2015 wherein the G.O. dated
03.05.2015 was also under challenge, the
said writ petition was also dismissed as not
pressed on 17.07.2011. The relevant
portion of the order dated 17.07.2011 is
being reproduced for convenent reference:-

"Sri Raj Kumar Upadhyaya, on
the basis of the affidavit filed in support of
the application for withdrawal of the
petition, has submitted that part of the
relief prayed for in this petition has already
been given to the petitioners and the
remaining is under consideration before
appropriate authority, so the present
petition may be dismissed as not pressed at
this stage.

Learned Standing counsel has no
objection to the aforesaid prayer.

In view of above, the application
is allowed. The petition is dismissed as not
pressed at this stage."

22. In the aforesaid backdrop, a
tentative seniority list of P.T.G.T.O. was
published
on
13.08.2015
wherein
the
respondents herein were placed below the
appellants and other such similarly situated
persons who were initially appointed as
P.T.G.T.S. and subsequently merged with the
post of P.T.G.T.O. in pursuance of the
Government Order dated 03.05.2011.

23. The respondents herein filed their
detailed objections in respect of the tentative
seniority list circulated on 13.08.2015,
however, the same was rejected and the final
seniority list dated 11.09.2015 was published
wherein the respondents herein who were
directly recruited to the post of P.T.G.T.O.
were placed lower than the persons who had
initially been appointed as P.T.G.T.S. and in
pursuance of the Government Order dated
03.05.2011 and merged and upgraded to the
higher post of P.T.G.T.O.

24. This final seniority list dated
11.09.2015
was
challenged
by
the
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
527
respondents herein in W.P. No. 1802 (S/B)
of 2015 (Vijay Kishore Anand and Others
Vs. State of U.P. & Others).

25. After the exchange of pleadings,
and upon hearing, the said W.P. No. 1802
(S/B) of 2015 was allowed by means of
judgment and order dated 13.04.2017. The
relevant portion of the said judgment is
being reproduced for ready reference:-

".............10. Regard being had to
the aforesaid decision, it is established that
till day the provisions of Government
Order dated 3.5.2011 have not become part
of Rules, 1980. Rule 5 of the Rules, 1980
deals with the source of recruitment. Under
the Rules, Permanent Tax Superintendents
and Permanent Goods Superintendents are
the feeding cadre of Passenger Tax, Goods
Tax Officers. The Government Order dated
3.5.2011 has put them at par with the
Passenger Tax, Goods Tax Officer, which
amounts to amendment in the Rules.

11. The Government Order dated
3.5.2011 provides the provisions contrary
to the Rules, therefore it cannot be said that
by way of Government Order, the State
Government has supplemented the Rules.

12. The State Government cannot
be permitted to transgress the power of
legislature by way of executive order.

13. Therefore, we are of the view
that since the decision taken by the State
Government for restructuring the post and
placing the Passenger Tax Superintendent at
per with the Tax Officer has not been inserted
in the Rules, the private respondents, who are
posted as Passenger Tax Officers, have no
right to be placed in the seniority list of
Passenger Tax and Goods Tax Officers
amongst the petitioners.

14. In the result, the office
order dated 11.9.2015 issued by the
Transport Commissioner, State of U.P., is
hereby quashed and a direction is issued to
the State Government to prepare a
seniority list of Passenger Tax, Goods Tax
Officer afresh within two months from the
date of communication of this order.

15. The writ petition stands
allowed."

26. What is significant to note is that
by means of judgment dated 13.04.2017 the
Coordinate Bench of this Court had set
aside the seniority list dated 11.09.2015
issued by the Transport Commissioner and
the directed the State Government to
prepare
a
fresh
seniority
list
of
Passenger/Tax Goods Tax Officer afresh.
While
issuing
such
directions,
the
coordinate Bench also noticed that the
decision taken by the State Government for
re-structuring the post and placing the
P.T.G.T.S. at par with the P.T.G.T.O. was
contrary to the Rules and not permissible,
thus. the respondents in the said writ
petition (who are the appellants before this
Court) have no right to be placed over the
P.T.G.T.O. who are the the petitioners of
the writ petition (and the respondents
herein). Against the aforesaid decision, a
Review Petition was preferred which also
came to be dismissed by means of order
dated 18.12.2017. The relevant portion of
the said order dated 18.12.2017 is being
reproduced for convenient reference.

"We have not been able to find
any apparent error on the face of record
and also we do not find any good reason to
entertain the review application along with
application for condonation of delay.
528 INDIAN LAW REPORTS ALLAHABAD SERIES
Accordingly,
both
the
aforesaid
applications are hereby rejected. "

27. Thus, it would be seen that the
judgment
dated
13.04.2017
attained
finality, inasmuch as, it was never assailed
before the Apex Court.

28. Since the directions issued by the
Division Bench of this Court was not being
complied with, the respondents herein
preferred a contempt petition bearing No.
1544 of 2017. By means of order dated
11.09.2017, 15.11.2017 and 16.11.2017,
the Contempt Court finding that the order
of the Division Bench was not being
complied with in its letter and spirit, hence,
in order dated 16.11.2017 it observed as
under:-

"The government order dated
03.11.2011 being found in conflict with
Rule 5 would nevertheless hold any field
contrary to the statutory rules for the
purposes of determining seniority of
substantive members in service would be
a
serious
misunderstanding
of
the
judgment.

The above observations made in
the judgment lead to no other conclusion
but to a clear picture of the fact that
substantive members of service appointed
as per Rule-5 of the Service Rules, 1980 on
the post of Passenger Tax and Goods Tax
Officers have to be included in the final
seniority list at their respective places in an
ascending order.

The officer who is present in
person has prayed that he may be permitted
to carry out the mandate of law understood
in the manner stated above within a further
period of three days.

Let the necessary exercise be
completed and action apprised to this
Court on the next date of listing."

29. The Transport Commissioner
taking note of the decision passed by a
Division Bench as well the Contempt Court
by means of order dated 17.11.2017
published a seniority list in respect of the
present respondents. From the perusal of
the said seniority list, it would indicate that
13 names were included. Amongst such 13
names persons at serial nos. 1 to 11 were
such persons who had been directly
recruited on the post of P.T.G.T.O. and the
persons at serial Nos. 12 and 13 were the
ones who had been promoted from the
feeding cadre to the post of P.T.G.T.O. It
will be relevant to note that the said
seniority list dated 17.11.2017 was never
assailed before any Court or Tribunal by
the present appellants or similarly situated
persons of the P.T.G.T.S. class which
merged with P.T.G.T.O. vide Govt. Order
dated 03.05.2011.

30. While the seniority list dated
17.11.2017 remained undisputed, in the
meantime, the Uttar Pradesh Transport
Taxation
(Subordinate)
Service
(1st
amenmdent) Rules 2018 was promulgated
on 05.03.2018.

During this period, the selection
process was initiated in respect of the post
of Assistant Regional Transport Officer
accruing against 8 vacancies for the
selection year 2017-18 and 4 vacancies
accruing in the selection year 2018-19.

31.

Thereafter,
the
Transport
Commissioner again circulated another
tentative seniority list dated 30.01.2019
which in effect disturbed the seniority list
dated 17.11.2017. The respondents herein
raised their objections against the decision
of the Transport Commissioner based on
order dated 19.12.2018 passed by the State
Government and being aggrieved, the
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
529
respondents herein again preferred W.P.
No. 3654 (S/S) of 2019 wherein they
sought a relief seeking quashing of the
order dated 19.12.2018 as well as the
impugned seniority list dated 30.01.2019.

32. In the aforesaid writ petition No.
3654 (S/S) of 2019, the learned Single
Judge of this Court found that the issue
involved could be resolved by directing the
Competent
Authority
i.e.
Transport
Commissioner to pass appropriate order
without being influenced with the order
dated 19.12.2018 by means of which the
State had issued certain directions to the
Transport Commissioner. The relevant
portion
of
the
judgment/order
dated
07.02.2019 passed in W.P. No. 3654 (S/S)
of 2019 reads as under:-

"Accordingly, this writ petition is
finally disposed of with the direction to the
Transport Commissioner, Uttar Pradesh,
Lucknow
(respondent
No.4)
to
pass
appropriate order in regard to the
controversy involved in the present writ
petition for the placement of private
respondents in the seniority list ignoring
the order dated 19.12.2018 passed by the
State
Government,
taking
into
consideration promulgation of Rules on
5.3.2018 in the light of the observation
made in the judgment and order dated
13.4.2017 after affording an opportunity of
hearing to the petitioners and to the private
respondents within a period of 6 weeks
from the date of production of certified
copy of this order."

33. That in furtherance of the order
passed by the learned Single Judge of this
Court dated 07.02.2019 in W.P. No. 3654
(S/S) of 2019, the Transport Commissioner
while rejecting the objections preferred
by the respondents herein finalized the
seniority list by means of order dated
15.04.2019. The result of which was that
the appellants herein who were the
P.T.G.T.S. and whose posts were upgraded
as
P.T.G.T.O.
in
pursuance
of
the
Government Order dated 03.05.2011 were
all placed above the respondents herein
who were appointed as direct recruits to the
post of P.T.G.T.O. These two orders; (i)
dated 15.04.2019 by which the objections
of the respondents herein regarding the
seniority was rejected and (ii) the final
seniority list issued by the Transport
Commissioner of the same date i.e.
15.04.2019,
were
assailed
by
the
respondents herein in W.P. No. 12438 (S/S)
of 2019 which has been allowed by means
of judgment dated 20.10.2020 which is
under challenge in these instant, three,
intracourt appeals.

34. The respondents herein, who were
eligible to be considered for the post of
Assistant
Regional
Transport
Officer,
despite lapse of substantial time and their
case was not being considered, hence, the
respondents herein prefererred a W.P.
bearing No. 36294 (S/S) of 2018 (Vijay
Kishore Anand and Others Vs. State of
U.P. and Others).

35. In the aforesaid writ petition, two
persons who belonged to the class of the
appellants herein i.e. the persons who were
initially appointed as P.T.G.T.S. and were
upgraded to the post of P.T.G.T.O. vide
Government Order dated 03.05.2011, were
also impleaded as a party.

36. The Writ Court disposed of the
aforesaid W.P. No. 36294 (S/S) of 2018 by
530 INDIAN LAW REPORTS ALLAHABAD SERIES
means of judgment dated 17.01.2019 with
the following directions:-

".........13.
On
overall
consideration of the material available on
record, it is apparent on the face of record
that the seniority list has been finalized in
compliance of the judgment and order
passed by this Court on 17.11.2017. It is
also transpired that there are 12 vacancies
of Assistant Regional Transport Officer
existing in the department. The question
that whether the respondent nos.5 and 6
are entitled to get promotion is also one of
the issues to be determined by the
competent authority in accordance with the
amended service rules. This Court is not
expressing any opinion in regard to
absorption of the respondent nos.5 and 6
and other similarly situated Passenger/
Goods Tax Superintendents, who are also
claiming seniority over and above the
petitioners. As the rules was amended on
5.3.2018 and came into force at once
meaning
thereby
on
5.3.2018.
The
respondent nos.5 and 6 and other similarly
situated officers are entitled to get seniority
over and above the petitioners can be
subject matter of consideration in case they
came to this Court to challenge the final
seniority list dated 17.11.2017 on the
ground that they are absorbed in service on
the post of Passenger/ Goods Tax Officer in
the department prior to the petitioners.

14. This is a writ petition filed by
the petitioners claiming promotion on the
basis of seniority finalized on 17.11.2017
which has not been set aside nor modified
by this Court or by any other competent
authority, therefore the petitioners have
made out a case for issuance of a direction
to the respondents to consider the case of
the petitioner for promotion on the post of
Assistant Regional Transport Officer in
pursuance to the final seniority list dated
17.11.2017 and to pass an appropriate,
reasoned and speaking order in regard to
their promotion within a period of two
months from the date of production of a
certified copy of this order."

37. It will also be relevant to notice
that few members of P.T.G.T.S. class such
as the appellants herein had also preferred a
writ petition before this Court at Allahabad
bearing No. A-23347 of 2017 (Dr. Pratigya
Srivastava and 6 Others Vs. State of U.P.
and Others). In the aforesaid writ petition,
the said petitioners had prayed for a writ of
mandamus directing the State-respondents
to take a final decision in respect of the
amendment in the Uttar Pradesh Transport
Taxation (Subordinate) Service Rules,
1980.

38. Before the Coordinate Bench at
Allahabad, in the aforesaid writ petition, a
plea was raised on behalf of the said
petitioners that since the post of P.T.G.T.S.
was upgraded and merged with the post of
P.T.G.T.O. vide Government Order dated
03.05.2011, however, the Rules in respect
thereto had not been amended, though, in
respect of the post of Assistant Regional
Inspector (Technical), the Rules had been
amended, hence, in order to cure the
aforesaid anomaly, a direction was sought
for directing the State Government to take a
decision regarding the amendment of Rules
of 1980.

39. Ultimately, the said writ petition
came to be dismissed as having become
infructuous since it was informed to the
Court that the Rules had been amended by
the 1st Amendment Rules of 2018.

40. Now in this backdrop of factual
narration
and
past
litigation
the
submissions of the parties is being noted:-
7 All. Ashutosh Kumar Upadhyay & Ors. Vs. Vijay Kishore Anand & Ors.
531

Submissions on behalf of the
appellants; (private respondents before
learned Single Judge)

41. Heard Sri Jaideep Narain
Mathur, learned Senior Advocate assisted
by Sri Shobhit Mohan Shukla, learned
counsel for the appellants in Special Appeal
No. 296 (SB) of 2020. Sri Sandeep Dixit,
learned Senior Advocate assisted by Sri
Dipesh Dwivedi, learned counsel appearing
for the appellants in Special Appeal No. 302
of 2020 and Sri Anil Tiwari, learned Senior
Advocate assisted by Sri Apoorva Tiwari,
learned counsel appearing for the appellants
in Special Appeal No. 303 of 2020. Sri H.P.
Srivastava,
learned
Additional
Chief
Standing Counsel along with Sri Upendra
Singh, learned Standing Counsel for the
State in all the three appeals as well as Sri
Gaurav Mehrotra, learned counsel along
with Sri Abhinav Singh and Ms. Maria
Fatima learned counsel for the private
respondents (writ petitioners) in all the
above three appeals.

42. Sri Sandeep Dixit, learned Senior
Counsel opened the arguments on behalf of the
appellants and has primarily made the
following submissions:-

(i) The learned Single Judge had
misconstrued the controversy, inasmuch as, it
failed to take note of Rule 4, 5 and 22 of the
Rules of 1980. It is further urged that the
decision taken by the Pay Committee which
was given effect to vide Government Order
dated 03.05.2011 by virtue of which the
Payscales of P.T.G.T.S. was upgraded and
brought at par with the Payscales applicable to
the post of P.T.G.T.O. The aforesaid power was
conferred upon the State Govrnments in terms
of Rule 22 of the Rules of 1980. Similarly Rule
4 of the Rules of 1980 conferred power
upon the State Government to change the
strength and the number of posts in the Cadre
including in respect of each category. This
enabling provision empowered the State
Government to carry out the re-structuring in
the cadre, hence, there was actually no
requirement to amend the Rules for the
aforesaid purpose. Since, the aforesaid Rules
empowered the State Government to undertake
the aforesaid exercise which in terms of the
Government Order dated 03.05.2011 was made
effective immediately i.e. on 03.05.2011
consequently, from the said date, the appellants
herein belonging to P.T.G.T.S. Class, were
upgraded and their posts were re-designated as
P.T.G.T.O., hence, the view taken by the
learned Single Judge that the aforesaid exercise
could not have been done without amendment
in the Rules of 1980 is not quite correct.

(ii) It has also been urged by the
learned Senior Counsel that the decision
rendered by a Division Bench of this Court
dated 13.04.2017 passed in W.P. No. 1802
(S/B) of 2015 (Vijay Kishore Anand and
Others Vs. State of U.P. and Others) did not
take note of the aforesaid Rules, hence, the
aforesaid decision cannot be said to be a
binding precedent, inasmuch as, it has been
rendered per incuriam.

(iii) It is also urged by the learned
Senior Counsel that though in the said writ
petition bearing No. 1802 (S/B) of 2015, there
was a direct challenge to the Government Order
dated 03.05.2011 but the same did not find
favour with the Court and though the Writ
Petition was allowed but in effect it only set
aside the seniority list dated 11.09.2015 and did
not hold that the Government Order was bad
nor it was quashed. Thus, once the Government
Order though challenged, was maintained, now
it is not open for the private respondents to urge
that the Government Order was bad and that
532 INDIAN LAW REPORTS ALLAHABAD SERIES
without amending the Rules, the same could
not be given effect to.

43. It has further been submitted by
the learned Senior Counsel that the effect
of the Division Bench Judgment in W.P.
No. 1802 (S/B) of 2015 was only to the
effect
that
the
seniority
list
dated
11.09.2015 was set aside and the State
Government was directed to prepare a fresh
list within the time so prescribed. Emphasis
being, that the creation or abolition of post
was merely a policy decision of the
Government which was referrable to the
powers
conferred
upon
the
State
Government in terms of Rule 4 read with
Rule 5 and 22 and the view contrary taken
by the learned Single Judge that the
impugned order as well as the seniority list
dated 11.09.2015 is in teeth of the order
passed by the Division Bench in W.P. No.
1802 (SB) of 2015 is not correct, as the
decision of this Court dated 13.04.2017 did
not consider the aforesaid aspect of the
matter.

44. Sri Jaideep Narain Mathur,
learned Senior Counsel appearing for the
appellants in Special Appeal No.