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IN THE HIGH COURT OF ALLAHABAD
Ramesh Sinha, Jaspreet Singh, JJ.
Ashutosh Kumar Upadhyay & Others – Appellant
Versus
Vijay Kishore Anand & Others – Respondent
SPECIAL APPEAL No. 296, 302, 303 of 2020
Decided On : 14-07-2021
Allahabad High Court Rules, 1952 - Rule 5 - Uttar Pradesh Transportation Taxation (Subordinate Service Rules), 1980 - Rule 4 and 5 - Uttar Pradesh Transportation Taxation (Subordinate Service Rules, (1st Amendment) Rules, 2018 - Cadre of service - Source of recruitment - Post of Passenger Tax/Goods Tax Officers - Government Order - Seniority list - Whether earlier Division Bench decision passed in W.P. is per incurium and if so its effect on this subsequent round of litigation - Whether earlier Division Bench decision passed in W.P. and its findings therein would operate as resjudicata/constructive res-judicata, in this subsequent round of litigation and if so its effect - The true import of 'Note' appended to Rule 4 by 1st Amendment Rules of 2018, as to whether it is a marginal or an explanatory note and whether it has a prospective or retrospective/retroactive effect -
Finding of the court: It is crystal clear that earlier decision rendered in W.P. did take note of Rules as well as Government Order, though, there is no specific mention of Rule 4 but nevertheless it has given its finding concluding that Government Order could not bring in effect, putting persons like appellants in seniority over people like respondents and at par without amending Rules - Decision, between two classes i.e. those who were directly recruited and appointed on post of P.T.G.T.O. such as private respondents and those who were working as P.T.G.T.S. while their posts were merged with P.T.G.T.O., was rendered by a coordinate Bench and said decision though challenged in Review but unsuccessfully and not taken any further before any superiour Court, cannot be treated as per-incuriam - Doctrine of res-judicata has been explained by Apex Court in case of Dr. Subramanian Swami Vs. State of Tamil Nadu and Others reported in 2014 (5) SCC 75 wherein it has been held that even an erroneous decision on a question of law attracts doctrine of res-judicata in between parties - Rule 4 remained almost untouched except as noticed above, hence, inescapable conclusion is that Note is only explanatory to Main Rule 4 and it explains abolishing of post of P.T.G.T.S. and now the existing cadre post and its strength and category has been inserted in the Rule 4 relating to Cadre of service itself and the Note only explains abolition of post of P.T.G.T.S. as per decision vide Government Order - Thus, though learned Single Judge may have erred in holding the aforesaid note to be marginal, but nevertheless, even though considering Note to be explanatory, yet this Court is not inclined to accept the submissions that said explanatory Note has a retroactive application, for forgoing reasons.
Result: Special Appeals dismissed
JUDGMENT :
Introduction :-
1. This is a batch of three intra court 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 intra court 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 Superintendent (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 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 appellants in the seniority list.
Factual matrix:-
6. In order to appreciate the controversy 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 Superintendents (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 Superintendence & (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.
(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 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: Provided that as far as possible the recruitment shall be so arranged that 50 per cent posts in the cadre are h
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