# Vijay Kishore Anand & Ors v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-20
- **Case number:** Service Single No. 12438 of 2019
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kishore-anand-ors-v-state-of-u-p-ors-45355
- **Pages:** 19

## Headnote

458 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Apoorva Tewari, Hemant Kr Mishra,
Rajeiu Kumar Tripathi, Surya Narayan
Mishra, Vinod Kumar Singh

A. Service Law - Uttar Pradesh Transport
Taxation (Subordinate), Service Rules,
1980 - Rule 5 - U.P. Transport Taxation
(Subordinate) Service (First Amendment)
Rules, 2018 - Rule 1(2), 3(hh) - note
appended
to
Rule
4(4)

-
Indian
Constitution - Article 309 - Promotion .

The petitioner had applied for consideration of
their candidature to be directly appointed on the
post of Passenger Tax, Goods-Tax Officer. The
appointment letters were floated only after the
interim order was modified by the Court vide
order dated 22.02.2017 allowing the petitioners
to join on the post. During the pendency of the
completion of the selection process, the State
Government vide order dated 03.05.2011
abolished and merged the vacant post of
Goods/Passenger Tax Superintendents with the
Passenger Tax, Goods-Tax Officers. A final
seniority list dated 15.04.2019 placing the
petitioner below Passenger Tax/Goods Tax
Superintendents. The Court observed that such
order are in the teeth of the judgment of this
Court. Once the controversy has been
finally been adjudicated by this Court and
the same has not been challenged before
any Competent Court of law then the
opposite party cannot sit as an appellate
authority and pass order contrary to the
directions issued by the judgment of this
Court, in the matter the list has finally
been adjudicated between the parties. The
opposite party cannot disturb the seniority list
dated 17.11.2017 issued in pursuance of the
Division Bench judgment dated 13.04.201 in the
garb of that the Rules have been amended in
the year 2018. (Para 34, 36, 41, 42)

As per the language used in the Rule 3(hh) it
was observed that there was no provision for
recruitment on the post of Passenger Tax,
Goods Tax Officers by adopting the method of
merger by executive order issued by the State
Government. The Rule 1980 were very much in
existence in the year 2011 when the merger
order was passed by the Government. As per
the existing Rules promotion can be only
considered on completion of atleast 5 years of
continuous service but the respondents have
only completed 3 years of service and are not
eligible
to
be
considered
for
promotion
according to the 1980 Rules. It is a gross
violation of Rules that the respondents were
promoted by inventing an extraneous method of
merger of the respondents and other similarly
situated persons. (Para 53)

The
Court
disregarded
the
preliminary
objection raised regarding the maintainability
of the writ petition on ground of non-joinder
of necessary parties. It was held that there is
no individual dispute between the parties,
which may require the presence of all the
parties at the time of adjudication of the
seniority.(Para 49)

Writ Petition Allowed. (E-10)

List of Cases cited:-

## Text

_Characters 0–39,998 of 63,970. This is a partial read: ask again with offset=39998 for what follows._

10 All. Vijay Kishore Anand & Ors. Vs. State of U.P. & Ors.
457
marks obtained in the written examination,
interview, academics and sports and even
final cut off marks still remained high to be
63.5 marks for unreserved, 58.5 marks for
OBC, 55 marks for SC and 55.5 marks for
ST.
The
issue
No.III
is
decided
accordingly.

11. Re: Issue No.IV.

It is categorical stand of the
UPSSSC that all the candidates who are
selected possessed eligibility qualifications
as declared by them before the cut off date.
Some of the candidates who though passed
Diploma before the cut off date, but their
certificates were issued subsequently were
also declared eligible to participate in the
selection process. The writ petitioners are
not able to point out any illegality in this
process.

12. The writ petitioners have not
come up with any documentary evidence to
show that the categorical statement made
on behalf of UPSSSC is false, therefore, the
submission of the learned counsel for the
petitioners in this regard is rejected. The
entire selection process cannot be quashed
on the basis of general and vague
allegations. However, it is made clear that
in case declaration made by any candidate
in this regard is found to be false or
contrary
to
the
record,
the
UPSSSC/concerned authority is at liberty
to take action against such candidate in
accordance with law. Issue no IV is
decided accordingly.

13. Re: Issue No.V.

The petitioners neither challenged
the redrawn merit list dated 07.1.2019, nor
arrayed selected candidates as respondents,
this aspect also goes against the petitioners.
(See paras 13,15 and 30 of Km. Rashmi
Mishra
Vs.
M.P.
Public
Service
Commission & Ors. (2006) 12 SCC 724).
It is also well settled that petitioners who
have consciously taken part in selection
process cannot turn around and question
the very selection process. (See para 18 of
Ramesh Chandra Shah & Ors. Vs. Anil
Joshi & Ors, (2013) 11 SCC 309 and
paras 14,15,16,17 and 18 of Madras
Institute of Development Studies & Anr
Vs. K. Sivasubramaniyan & Ors. (2016)
1 SCC 454. It is also relevant to mention
here that petitioners have not alleged any
malafide or favourism in the entire
selection process. Issue no V is decided
accordingly.

Conclusion.

14. Petitioners have failed to make
out a case for interference with the
selection process of Combined Laboratory
Technician
General
Recruitment
Competitive Examination, 2016.

15. Accordingly, the present writ
petitions are dismissed.
----------
(2020)10ILR A457
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.10.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Service Single No. 12438 of 2019

Vijay Kishore Anand & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Gaurav Mehrotra, Abhinav Singh

Counsel for the Respondents:
458 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Apoorva Tewari, Hemant Kr Mishra,
Rajeiu Kumar Tripathi, Surya Narayan
Mishra, Vinod Kumar Singh

A. Service Law - Uttar Pradesh Transport
Taxation (Subordinate), Service Rules,
1980 - Rule 5 - U.P. Transport Taxation
(Subordinate) Service (First Amendment)
Rules, 2018 - Rule 1(2), 3(hh) - note
appended
to
Rule
4(4)

-
Indian
Constitution - Article 309 - Promotion .

The petitioner had applied for consideration of
their candidature to be directly appointed on the
post of Passenger Tax, Goods-Tax Officer. The
appointment letters were floated only after the
interim order was modified by the Court vide
order dated 22.02.2017 allowing the petitioners
to join on the post. During the pendency of the
completion of the selection process, the State
Government vide order dated 03.05.2011
abolished and merged the vacant post of
Goods/Passenger Tax Superintendents with the
Passenger Tax, Goods-Tax Officers. A final
seniority list dated 15.04.2019 placing the
petitioner below Passenger Tax/Goods Tax
Superintendents. The Court observed that such
order are in the teeth of the judgment of this
Court. Once the controversy has been
finally been adjudicated by this Court and
the same has not been challenged before
any Competent Court of law then the
opposite party cannot sit as an appellate
authority and pass order contrary to the
directions issued by the judgment of this
Court, in the matter the list has finally
been adjudicated between the parties. The
opposite party cannot disturb the seniority list
dated 17.11.2017 issued in pursuance of the
Division Bench judgment dated 13.04.201 in the
garb of that the Rules have been amended in
the year 2018. (Para 34, 36, 41, 42)

As per the language used in the Rule 3(hh) it
was observed that there was no provision for
recruitment on the post of Passenger Tax,
Goods Tax Officers by adopting the method of
merger by executive order issued by the State
Government. The Rule 1980 were very much in
existence in the year 2011 when the merger
order was passed by the Government. As per
the existing Rules promotion can be only
considered on completion of atleast 5 years of
continuous service but the respondents have
only completed 3 years of service and are not
eligible
to
be
considered
for
promotion
according to the 1980 Rules. It is a gross
violation of Rules that the respondents were
promoted by inventing an extraneous method of
merger of the respondents and other similarly
situated persons. (Para 53)

The
Court
disregarded
the
preliminary
objection raised regarding the maintainability
of the writ petition on ground of non-joinder
of necessary parties. It was held that there is
no individual dispute between the parties,
which may require the presence of all the
parties at the time of adjudication of the
seniority.(Para 49)

Writ Petition Allowed. (E-10)

List of Cases cited:-

1. H.S. Vankani & ors. Vs St. of Guj. & ors.
(2010) 4) SCC page 301

2. Madan Mohan Pathak & ors. Vs U.O.I. & ors.
(1978) 2 SCC page 50 I(followed)

3. Chairman, Railway Board & ors. Vs C.R.
Rangadhamaiah (1997) 6 SCC page 623

4. J.S. Yadav Vs St. of U.P. (2011) 6 SCC Page
570

5. Vijay Kumar Kaul Vs U.O.I. (2008) 6 SCC 797
(distinguished)

6. St. of Uttaranchal Vs Madan Mohan Joshi
(2010) 1 SCC (distinguished)

7. Amarjeet Singh Vs Devi Ratan (2010) 1 SCC
Page 417

8. Pawan Pratap Singh Vs Reevan Singh (2011)
3 SCC 267

9. T. Thangavelu Vs U.O.I. (2009) 16 SCC 302

10. T. Narasinhulu Vs St. of A.P. (2010) 6 SCC 545

11. Chaman Singh Vs Jai Kaur (1969) 2 SCC
10 All. Vijay Kishore Anand & Ors. Vs. State of U.P. & Ors.
459
12. Sheshrao Jangluji Bagde Vs Bhaiyya 1991
Suppl. (1) SCC 367

13. A. Janardana Vs U.O.I. 1983 (3) page 601
(distinguished)

14. Prabodh Verma & ors. Vs St. of U.P. & ors.
(1994) 4 SCC page 251 (followed)

15. B. Prabhakar Rao & ors. Vs St. of A.P. & ors.
1985 (Supp) SCC page 432 (followed)

16. Pawan Pratap Sigh Vs Reevan Singh (2011)
3 SCC 267

17.
Prakash
Nath
Khanna
&
ors.
Vs
Commissioner of Income Tax & anr. (2004) 9
SCC (followed)

18. Prabhudas Damodar Kotecha & anr. Vs Smt.
Manharbala Jaram Damodar & ors. 2007 (5) Mh.
L.J. (followed)

19. Union of India & anr. Vs National Federation
of the Blind & ors. (2013) 10 SCC page
772(followed)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Sri Gaurav Mehrotra and Sri
Abhinav Singh, learned counsel for the
petitioners, learned State Counsel for
Opposite Parties No. 1 and 2 and Sri
Sudeep Seth, learned Senior Advocate,
assisted by Sri V.K. Singh for Opposite
Party No.3, Sri Suraya Narayan Mishra for
Opposite Party No.13, Sri Hemant Mishra
for Opposite Party Nos. 14 and 15 and Sri
Apurva Tewari, who has moved an
impleadment application on behalf of one
Sri Mahesh, he has been allowed to make
his submissions.

2. The present writ petition has been
preferred
by
the
petitioners
feeling
aggrieved by the final Seniority list issued
vide
office
order
no.871E/2019371E/GPT/85-18 dated 15.04.2019 in so far
as it relates to the placement of the
petitioners below Passenger Tax / Goods
Tax Superintendents, whose services have
been merged in the higher cadre of posts of
Passenger Tax, Goods-Tax Officer to
which petitioners were directly appointed.
They have also challenged the order dated
15.04.2019, by which the representation of
the
petitioners
against
the
tentative
seniority list has been rejected.

3. The dispute pertains to the
placement of seniority on the post of
Passenger Tax, Goods-Tax Officer amongst
the direct recruits i.e. the petitioners and the
private respondents, who were working on
the post of Passenger Tax / Goods Tax
Superintendents, the feeding cadre for
promotion to the post of Passenger Tax,
Goods-Tax Officers, but their services have
been merged with Passenger Tax, GoodsTax Officers vide Government Order dated
3.5.2011 abolishing post of Passenger Tax /
Goods Tax Superintendents.

4. The services of the petitioners and
the respondents are governed by the
Provisions of the Uttar Pradesh Transport
Taxation (Subordinate), Service Rules,
1980 (hereinafter referred as ''Rules 1980').
The Rule 5, in Part III of the Rules 1980
deals with sources of recruitment to the
service and as per Sub-Rule (1) of Rule 5,
the post of Passenger Tax/ Goods-Tax
Officers is to be filled up by direct
recruitment through the Commission and
by promotion also through the Commission
from amongst the permanent Passenger Tax
/ Goods Tax Superintendents, who have put
in at least 5 years of continuous service as
such
besides
some
other
sources.
According to the Rule 5, the post of
Passenger Tax, Goods-Tax Officers were
advertised by the U.P. Public Service
Commission in the year 2009. The
petitioners, since fulfilled the requisite
460 INDIAN LAW REPORTS ALLAHABAD SERIES
eligibility criteria, applied for the aforesaid
advertised post and were selected for
appointment.

5. Thereafter, the State government
issued a Government Order dated 3.5.2011,
by which the Post of the Passenger / Goods
Tax Superintendents was abolished and the
persons working on those posts were
merged with the post of Passenger Tax
Goods Officers. The government order
dated 3.5.2011 was challenged by the
ministerial employees, who were also
eligible to be considered for promotion on
the post of Passenger Tax, Goods-Tax
Officers alongwith Passenger Tax / Goods
Tax Superintendents, by filing a Writ
Petition No.2811 (S/S) of 2011 (Ministerial
Service Association Transport Lucknow vs.
State of U.P.) and in this case, an interim
order dated 27.05.2011 was passed by this
Court directing for maintaining the status
quo till the next date of listing.

6. In the above mentioned writ
petition, an application was preferred by
the State of U.P. for modification /
clarification
of
the
order
dated
27.05.2011 to the extent that the 15
selected candidates including the present
petitioners be allowed to join on the post
of Passenger Tax, Goods-Tax Officers.
The application for modification was
allowed by this Court vide order dated
22.02.2013 allowing the 15 selected
candidates
including
the
present
petitioners to join on the post of
Passenger Tax, Goods-Tax Officer.

7. The appointment letters were
issued on 22.07.2013 as far as the
petitioners no.2, 3, 4, 5, 6, 8, 9 and 10 are
concerned and on 6. 8. 2013 as far as it
relates to Petitioners No.1 and 7.

8. The petitioners also preferred a
Writ Petition No.336 (S/B) of 2015
assailing the Government Order dated
3.5.2011, but not pressed the same with
liberty to file a fresh writ petition, as
permitted by the order of this Court dated
26.03.2015. At the same time, the Writ
Petition No.2811 (S/S) of 2011 was also
dismissed as withdrawn vide order dated
17.07.2015. After the disposal of above
writ petitions, on 13.08.2015 a tentative
seniority list was published, wherein the
names of the petitioners were tentatively
placed below the employees, who were
initially appointed as Passenger Tax /
Goods
Tax
Superintendents
and
subsequently claimed to have been merged
on the post of Passenger Tax, Goods-Tax
Officers in the light of Government Order
dated 3.5.2011. The petitioners preferred
detailed objections to the seniority list, but
the same was rejected and a final seniority
list was published on 11.09.2015 for the
post of Passenger Tax, Goods-Tax Officers,
maintaining the seniority shown in the
tentative seniority list.

9. The petitioners then preferred a
writ Petition No.1802 (S/B) of 2015 ( Vijay
Kishor Anand And Ors. vs. State of U.P. &
Ors) challenging the validity of the
seniority list dated 11.09.2015 and the
Government Order dated 3.5.2011. The
Writ Petition was finally allowed by this
Court vide judgment and order dated
13.04.2017, quashing the seniority list
dated 11.09.2015 with a further direction to
prepare a fresh seniority list of Passenger
Tax/ Goods Tax Officer within a period of
two
months
from
the
date
of
communication of the aforesaid order.
Against the final judgment and order dated
13.04.2017, a review petition was preferred
by two private respondents, which was
10 All. Vijay Kishore Anand & Ors. Vs. State of U.P. & Ors.
461
dismissed vide order dated 18.12.2017 and
the matter attained finality.

10. The department despite the
judgment of this Court kept sitting over the
matter instead of issuing a fresh seniority
list. The petitioners then filed a contempt
petition being Contempt Case No.1544 of
2017 before this Court. During the
pendency of the contempt petition, a
seniority list dated 6.11.2017 was issued in
three parts, wherein more than one person
was placed at Serial No.1 including the
Passenger Goods Tax Superintendents, but
the same was not accepted by the Court,
thereafter, another seniority list of Goods/
Passenger Tax Officers was issued on
17.11.2017 of petitioners only excluding
the names of respondents and other
similarly situated persons.

11. On 5.3.2018, the U.P. Transport
Taxation (Subordinate) Service (First
Amendment) Rules, 2018, were passed
giving it immediate effect. The Passenger
Tax / Goods Tax Superintendents preferred
a
Writ
Petition
No.16657/2018
for
inclusion of their names in the Seniority list
of Passenger Tax, Goods - Tax Officer in
the light of the amendment in the Rules.
The Writ Petition was disposed off without
expressing any opinion on the merits of the
case vide judgment and order dated
27.07.2018, with a direction to the
Transport Commissioner to decide their
representations.

12. During the pendency of the Writ
Petition No.36294 (S/S) of 2018 filed by
the
present
petitioners
seeking
consideration for promotion on the vacant
post
of
ARTO
(Assistant
Regional
Transport
Officer),
an
order
dated
19.12.2018 was issued by the Deputy
Secretary providing therein that the private
respondents i.e. Passenger Tax / Goods Tax
Superintendents, who were merged on the
post of Passenger Tax, Goods - Tax Officer
may be treated as substantively appointed
as such w.e.f. 3.5.2011. This court after
hearing the counsels for the respective
parties, considering the facts that the
service rules have been amended with
effect from 5.3.2018, allowed the writ
petition vide order / judgement dated
17.01.2019 directing the respondents to
consider the petitioners for promotion on
the post of ARTO

13. The aforesaid order dated
19.12.2018 passed by Deputy Secretary
was challenged by the petitioners by filing
a Writ Petition No.3654 (S/S) of 2019 and
also the tentative seniority list dated
30.01.2019. The writ petition was finally
disposed of by this Court vide judgment
and order dated 7.02.2019 directing the
Transport
Commissioner
to
pass
appropriate
order
in
regard
to
the
controversy involved in the writ petition for
placing the private respondents in the
seniority list, ignoring the order dated
19.12.2018
passed
by
the
State
Government.
Further
taking
into
consideration promulgation of Rules dated
5.3.2018 in the light of judgment and order
dated 13.04.2017, after affording the
opportunity of hearing to the petitioners
and the private respondents.

14. Despite the direction of this
Court,
the
impugned
order
dated
15.04.2019 has been passed by rejecting
the
objections
submitted
by
the
petitioners and issued a final seniority
list including the respondents and other
similarly
situated
persons
in
the
seniority list, which is under challenge
and the subject matter of the present writ
petition.
462 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Learned counsel for the petitioner
has submitted that the impugned orders
dated 15.04.2019 has been passed in the
teeth of the judgment of this Court dated
13.04.2017 in Writ Petition No.1802 (S/B)
of 2015, wherein, it has been held that the
provisions of Government Order dated
3.5.2011 were contrary to the existing
Service Rules and the merger of the post of
Passenger
Tax
/
Goods
Tax
Superintendents with the Passenger Tax,
Goods-Tax Officers is not provided in the
relevant statutory Rules i.e. Rules 1980, as
such the private respondents and other
similarly situated Passenger Tax / Goods
Tax Superintendents are not entitled to be
placed in the Seniority list of the Passenger
Tax, Goods-Tax Officers alongwith the
petitioners. The judgment and order dated
13.04.2017 has attained finality as the
Review Petition against the aforesaid
judgment had been dismissed by this Court
by means of judgment and order dated
18.12.2017 and the same was never
assailed by anyone before any Court.

16. In the contempt petition preferred
by the petitioners, firstly an attempt was
made by placing the seniority list dated
06.11.2017
deliberately
including
the
names
of
Goods/
Passenger
Tax
Superintendents, but on 16.11.2017 the
contempt court held that the seniority list
prepared by the department is not in
consonance with the judgment and order
dated
13.04.2017,
thereafter
the
Respondent No.2 had issued a fresh
seniority
list
of
petitioners
dated
17.11.2017
in
which
the
private
respondents were not included.

17. The submission is that the
impugned orders are also in total defiance
of judgment1 and order dated 07.02.2019
passed in Writ Petition No.3654 (S/S) of
2019, whereby this Court while disposing
of the writ petition directed to the Transport
Commissioner, Uttar Pradesh for passing
an appropriate order with regard to the
controversy involved in the writ petition,
ignoring the order dated 19.12.2018 passed
by the Deputy Secretary of the State of
U.P. or being influenced by it.

18. The second submission raised by
the learned counsel for the petitioner is that
the private respondents and other similarly
situated persons cannot be included in the
seniority list of Passenger Tax, Goods-Tax
Officers in pursuance of the Government
Order dated 3.5.2011 by which the
Passenger
Tax
/
Goods
Tax
Superintendents were merged with the
posts
of
Passenger
Tax,
Goods-Tax
Officers
without
there
being
any
amendment in the Rules 1980 as required
in the Govt. order itself. The Passenger Tax
/
Goods
Tax
Superintendents
would
become Goods / Passenger Tax Officers
only after the amendment in the relevant
service Rules.

19. The submission is that the Rules
1980 have been amended by first
amendment and promulgated on 5.3.2018
As per Rule 1(2) of Amendment Rules
2018, it has clearly been provided that the
said amended rules shall come into force
at once and, hence, it is explicit that the
amendment in the Service Rules 1980 has
been made effective with immediate
effect,
i.e.
5.3.2018.
It
is
not
retrospective. So, at the most, the
respondents and other similarly situated
Passenger
Tax
/
Goods
Tax
Superintendents
are
entitled
to
be
included in the seniority list from the date
of promulgation of first amendment Rule
2018 i.e. 5.3.2018 not with effect from
3.5.2011.
10 All. Vijay Kishore Anand & Ors. Vs. State of U.P. & Ors.
463

20. It has further been contended as
per Rule 3 (hh) which defines term
substantive appointment, has been inserted
in the service rules for the first time with
effect from 5.3.2018. The functioning of
the private respondents is at the most on
officiating basis and not as substantive
appointment.

21. It is further contended that the
definition clause pertaining to substantive
appointment says that the substantive
appointment means an appointment, not
being an ad-hoc appointment, on the post in
the cadre of service, made after selection in
accordance with rules and, if there were no
rules,
in
accordance
with
procedure
prescribed for the time being by the
executive instructions issued by the State
Government. In the present case there were
Rules i.e. Rules 1980 and, hence, any
executive orders would be in contravention
of the same and bad in law.

22. It has further been submitted that
the Transport Commissioner has no power
to unsettle the final seniority list dated
17.11.2017 finalized in compliance of
mandamus issued by this Court without
there being any challenge and interference
by any competent court of law.

23. In support of his arguments,
learned counsel for the petitioner has relied
upon the judgment reported in 2010 (4)
SCC page 301 (H. S. Vankani and others
vs. State of Gujarat & Ors). It is further
contended that the promulgation of first
amendment Ruled 2018 would not nullify
the judgment and orders dated 13.04.2017,
7.2.2019, 17.11.2019 passed by this Court
in different writ petitions, as per law laid
down in the case of Madan Mohan Pathak
and other vs. Union of India and other
reported in (1978) 2 SCC page 50 . By the
judgment and order dated 17.11.2019
passed in Writ Petition no. 36294 (S/S)
2018 a direction has been issued to the
State Government that the petitioner be
considered for promotion on the post of
Assistant Regional Transport Officer on the
basis
of
final
seniority
list
dated
17.11.2017. It has further been contended
that it is the settled proposition of law that
the right accrued cannot be taken away
even by a retrospective amendment and in
support thereof the judgment of the
Supreme Court in the case of Chairman,
Railway
Board
&
Ors.
vs.
C.R.
Rangadhamaiah reported in (1997) 6 SCC,
page 623, and J.S. Yadav vs. State of U.P.
reported in (2011) 6 SCC Page 570 have
been relief upon.

24. On the other hand, learned State
Counsel has submitted that the Post of
Passenger Tax/ Goods Tax Superintendents
has been abolished and the persons who
were working on the said post were merged
with the post of Passenger Tax, Goods -
Tax Officer vide Government Order dated
3.5.2011 which was never set aside by this
court. After the promulgation of first
amendment in Rule 2018, wherein in the
note it has been provided that the Goods/
Passenger Tax Superintendents have been
merged with the post of Passenger Tax,
Goods-Tax Officer by abolishing the posts
of
Passenger
Tax
/
Goods
Tax
Superintendents gives the Government
Order dated 3.5.2011 retrospective effect
and hence, the private respondent and the
similarly situated persons have rightly been
place in the seniority list.

25. Sri Sudeep Seth, learned Senior
Advocate, assisted by Sri V. K. Singh
appearing
for
one
of
the
private
respondents has submitted that the writ
petition is liable to be dismissed on the
464 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of non-joinder of necessary parties
in the memo of writ petition. The
petitioners are claiming their seniority over
and above the merged Goods Tax Officers
and inter se seniority being a civil right, the
right of the parties must be determined in
their presence and, as such, all the
incumbents in the impugned seniority list
are necessary parties. In support of the
arguments, learned counsel has relied upon
the judgment in the Case reported in 2012
(7) SCC 610 Vijay Kumar Kaul Vs. Union
of India , 2008 (6) SCC 797 State of
Uttranchal Vs Madan Mohan Joshi, 2010
(1) SCC Amarjeet Singh Vs. Devi Ratan.

26. It has further been submitted vide
Government order dated 3.5.2011 the post
was
abolished
and
the
services
of
Passenger
Tax
/
Goods
Tax
Superintendents were merged with the next
higher post of Passenger Tax, Goods-Tax
Officers. The petitioner and other persons
preferred a writ petition challenging the
Government Order dated 3.5.2011, but the
same was either dismissed as not pressed or
dismissed as withdrawn with liberty to file
afresh petition and in none of the writ
petition, the order dated 3.5.2011 has ever
been set aside or quashed by this Court, so
it still holds good and is in existence. Even
in the judgment dated 13.04.2017 the
Government Order dated 3.5.2011 was not
set aside though the seniority list was
quashed with a direction for preparation of
the fresh seniority list. Under these
circumstances, the private respondents and
other similarly situated persons have rightly
been placed in the final seniority list of the
Passenger Tax, Goods-Tax Officer.

27. It is also contended that the
merger / substantive appointment of the
private respondents and other similarly
situated persons is prior to the appointment
of the petitioners on the post of Passenger
Tax, Goods-Tax Officer on 22.07.2013 /
06.08.2013 / 05.03.2014. The date of entry
of the petitioners in the service was
subsequent to the private respondents and
as such the petitioners cannot be granted
seniority from the date prior to birth in the
cadre by placing them over and above the
respondents. In support of this argument,
learned counsel has relied upon the
judgement of the Suprmene Court in the
case of Amarjeet Singh Vs. Devi Rata
reported in 2010 (1) SCC Page 417.

28. It is further submitted that the
safest criteria for determination of seniority
is date of substantive appointment and in
the present case, the private respondents
were merged on the post of Passenger Tax,
Goods - Tax Officer on 3.5.2011 on
abolition of post of Passenger Tax / Goods
Tax Superintendents, while the petitioners
were
subsequently
appointed
on
the
supernumerary post of Passenger Tax,
Goods-Tax Officer. The seniority list dated
17.11.2017 comprised of only petitioner i.e.
direct recruitees and did not include the
merged
Passenger
Tax,
Goods
Tax
Superintendents in compliance of the
Courts
order
and
judgment
dated
13.04.2017 pursuant to the contempt
proceedings drawn by the petitioner and
also that as the rules were not amended till
then.

29. It is further contended by Sri
Sudeep Seth that the petitioners have
nowhere disclosed that they were appointed
on
the
supernumerary
posts.
The
Supernumerary post is not cadre post. The
Substantive appointment could only be
made on the cadre post, so the seniority of
the petitioners can be determined as per
Seniority Rules 1991 i.e. from the date of
order of substantive appointment. In
10 All. Vijay Kishore Anand & Ors. Vs. State of U.P. & Ors.
465
support of the submissions, learned counsel
has relied upon the judgement of Supreme
Court in the Case of Pawan Pratap Singh
Vs. Reevan Singh reported in 2011 (3)
SCC 267, T. Thangavelu vs. Union of
India reported in 2009 (16) SCC 302.

30. It is further submitted the phrase
"...........if
there
were
no
rules,
in
accordance with the procedure prescribed
for the time being by the executive
instructions
issued
by
the
Government.........." in Rule 3 (hh) defining
substantive appointment and to the effect
that the note appended to the Rule 4(4) for
about merger of post of Passenger Tax /
Goods Tax Superintendents in the post of
Passenger Tax, Goods - Tax Officer, gives
credence to the order dated 3.5.2011 and
despite amendment of service rule by the
notification
dated
5.3.2018
being
prospective in nature, the merger of
services by Opposite Party No.3 as the post
of Passenger Tax, Goods - Tax Officer on
3.5.2011 has retrospective effect.

31. It has further been submitted that
the seniority is not vested right and Act or
State legislature or Rule made under
Article 309 of Constitution of India can
have retrospective effect in the matter of
seniority of the Government servants. The
Seniority is a civil right and could be
effected by the amendment of the service
Rules. In support thereof, he relied upon
the judgment of Supreme Court reported in
2010 (6) SCC 545 (T. Narasinhulu Vs.
State of Andhra Pradesh), 1969 (2) SCC
(Chaman Singh Vs. Jai Kaur), and 1991
Suppl. (1) SCC 367 (Sheshrao Jangluji
Bagde Vs. Bhaiyya).

32. It has further been submitted that
as far as the judgment and order dated
7.2.2019 is concerned, this Court neither
quashed the tentative seniority list nor
granted relief for not disturbing the
placement of petitioner in the seniority list
dated 17.11.2017 and granted liberty to the
Transport Commissioner to deal with the
controversy about the placement of merged
Passenger Tax, Goods-Tax Officers in the
seniority list after taking into consideration
the amended rules promulgated on 5.2.2018
and the observation made in judgment
dated
13.04.2017.
The
Transport
Commissioner heard the petitioners and
passed the order dated 15.04.2019 after
considering the amended rules as well as
observations in order dated 13.04.2017.
The merits of the matter were not decided
in the judgement dated 7.2.2019 and
reliance placed by the petitioners upon the
judgement dated 7.2.2019 is misconceived.

33. Since the above case has a
checkered history having several rounds of
ligation by filing writ petitions and
contempt petitions by different parties,
which have been decided with certain
directions to the authorities to act in
particular manner in preparation of the final
seniority list. However, the case mainly
hinges upon the question as to whether the
amended
Rules
2018
are
partly
retrospective in effect so far as it bestowes
benefit of seniority to the respondents and
other similarly situated persons in the list of
seniority of Passenger Tax, Goods - Tax
Officer. In this connection as seen in the
preceeding paras mainly two contentions
have been raised by learned counsel for the
respondents. Firstly, about the language
used in the newly added provision i.e. Rule
3(hh) and Secondly, on the note appended
to Rule (4)(4) of the amended Rules 2018.

34. The case of the petitioners is that
they had applied for consideration of their
candidature to be directly appointed on the
466 INDIAN LAW REPORTS ALLAHABAD SERIES
post of Passenger Tax, Goods-Tax Officers
in
pursuance
of
the
advertisement
published in the year 2009 by the U.P.
Public Service Commission but before the
appointment letters could be issued, an
interim order dated 27.05.2011 was passed
in Writ petition No. 2811 (S/S/) of 2011 for
maintaining the status quo till the next date
of listing. The appointment letters were
issued only after the interim order dated
27.05.2011 was modified by this Court
vide its order dated 22.02.2017 to the
extent that the 15 selected incumbents
including the petitioners were allowed to
join on the post of Passenger Tax, GoodsTax Officer.

35. The post of Goods / Passenger
Tax Superintendent and Passenger Tax,
Goods-Tax Officer are governed by the
Uttar Pradesh Transport Tax (Subordinate)
Services Rule, 1980 (hereinafter referred as
''The Rules 1980). Rule 5 in Part III of the
Rules 1980 is quoted hereinbelow :

5. Source of recruitment. -
recruitment to the various categories of
posts in the service shall be made from the
following sources -

(1) 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 Superintendents 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 continuous 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:

36. During the pendency of the
completion of the selection, the State
Government issued a Government Order
dated 3.5.2011 and took a decision that 93
vacant posts of Goods/ Passenger Tax
Superintendents shall be abolished and
merged with 133 posts of Passenger Tax,
Goods-Tax Officers. It is also provided in
the G.O. dated 3.5.2011 that the relevant
service rules shall be amended accordingly.

37. The Government order dated
3.5.2011 was challenged by the petitioners
by filing Writ Petition No.336 (S/B) of
2015 (Irshad Ali and others Vs. State of
U.P.), but subsequently, it was not pressed
with liberty to file a fresh petition vide
order dated 26.03.2015 and the Writ
Petition No.2811 (S/S) of 2011 preferred
by the Ministerial Services Association was
also dismissed as withdrawn vide order of
this Court dated 17.07.2015.

38. The Opposite Parties after the
withdrawal of the above mentioned writ
petitions issued a tentative seniority list on
13.08.2015 placing the Passenger Tax /
Goods Tax Superintendents over and above
the petitioners against which the petitioners
preferred objections, which were rejected
and the final seniority list was issued on
11.09.2015.
The
seniority
list
was
challenged by the petitioners by filing the
writ petition no.1802 (S/B) of 2015 (Vijay
Kumar Anand and Ors. Vs. State of U.P.
and others). The writ petition was finally
allowed by this Court quashing the
seniority list dated 11.09.2015 with a
direction to the Transport Commissioner to
prepare a fresh list of Goods/ Passenger
Tax Officer, the relevant paragraphs of the
10 All. Vijay Kishore Anand & Ors. Vs. State of U.P. & Ors.
467
Division Bench judgment and order dated
13.04.2017 passed in Writ Petition No.
1802 (S/B) of 2015 are extracted and
quoted hereinbelow:

2. The petitioners have assailed
the order dated 11.9.2015 issued by the
Transport
Commissioner,
Lucknow,
whereby the respondents, who were posted
as Good/Passenger Tax Superintendents,
have been merged into Passenger Tax
Officers and consequently, they have been
placed in the seniority list of the Passenger
Tax/ Goods Tax Officers amongst the
petitioners. The petitioners have also
assailed
Government
Order
dated
3.5.2011, whereby the Government has
taken a decision to merge the Good/
Passenger Tax Superintendents into the
post of Passenger Tax Officer.

.

.

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.
(Emphasis Supplied by the Court).

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.

39. When the order and judgment was
not complied with, a contempt petition
being Contempt No.1544 of 2017 was
preferred, in which on 16.11.2017, the
contempt Court had directed the Opposite
Parties to issue a fresh seniority list, the
relevant
extract
of
the
order
dated
16.11.2017 is quoted hereinbelow :

"A
final
seniority
list
of
substantive members of service is one
which allows one person to be placed at
one place. The tentative seniority list issued
in three parts seeks to place more than one
person at serial no. 1 in the three parts yet
it is termed to be a list of one and the same
cadre. The list issued does not stand in the
spirit of the final judgment dated 13.4.2017
and according to the Rules.

The Officer present in the Court
has however explained that the government
order dated 3.11.2011 not being struck
down has throughout caused a difficulty of
understanding the judgment, hence the
bonafide mistake.

.

.

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
468 INDIAN LAW REPORTS ALLAHABAD SERIES
to carry out the mandate of law understood
in the manner stated above within a further
period of three days."

40. And only thereafter, a final
seniority list was issued on 17.11.2017, in
which the only petitioners were included
and not the private respondents.

41. In the light of the orders passed by
this Court, it is apparent that the orders
impugned in the present petition dated
15.04.2019 are in the teeth of the judgment
of this Court. Once the controversy has
finally been adjudicated by this Court and
the same has not been challenged before
any Competent Court of law then the
Opposite Parties cannot sit as an appellate
authority and pass an order contrary to the
directions issued by the judgment of this
Court, in the matter the lis has finally been
adjudicated between the parties.

42. The Rules 1980 has been
amended namely the U.P. Transport
Taxation (Subordinate) Service ( First
Amended) Rules 2018, Rule (1) (c)
specifically provides that the rules have
come into force at once that is w.e.f.
since 5.3.2018. It has no retrospective
effect. The inclusion of the respondents
and similarly situated persons in the
impugned seniority list is bad in the eyes
of law. The Opposite Party No.2 could
not modify or disturb the seniority list
dated 17.11.2017 issued in pursuance of
the Division Bench judgment dated
13.04.2017 in the garb that the Rules
have been amended in the year 2018.

43. Learned counsel for the petitioner
has relied upon the case of Madan Mohan
Pathak Vs. Union of India and others, the
relevant extract from the judgment is
quoted below.

"If by reason of retrospective
alteration of the factual or legal situation,
the judgment is rendered erroneous, the
remedy may be by way of appeal or review,
but so long as the judgment stands, it
cannot be disregrded or ignored and it
must be obeyed by the Life Insurance
Corporation. We are, therefore, of the view
that, in any event, irrespective of whether
the impugned Act is constitutionally valid
or not, the Life Insurance Corporation is
bound to obey the writ of mandamus issued
by the Calcutta High court and to pay
annual cash bonus for the year April 1,
1975 to March 31, 1976 to Class III and
Class IV employees."

44. The other judgment relied upon
by the learned counsel for the petitioner is
Chairman, Railway Board and others vs.
C.R. Rangadhamaiah & Ors. reported in
(1997) 6 SCC 623. In this case, the
Supreme Court has held that the accrued
rights in the matter of promotion / seniority
cannot be taken away by retrospective
amendment in the statute. The Relevant
extract
of
the
judgment
is
quoted
hereinbelow;

"24. In many of these decisions
the expressions "vested rights" or "accrued
rights" have been used while striking down
the impugned provisions which had been
given retrospective operation so as to have
an adverse effect in the matter of
promotion,
seniority,
substantive
appointment. etc., of the employees. The
said expressions have been used in the
context of a right flowing under the
relevant rule which was sought to be
altered with effect from an anterior date
and thereby taking away the benefits
available under the rule in force at that
time. It has been held that such an
amendment having retrospective operation
10 All. Vijay Kishore Anand & Ors.