On Tuesday (October 20, 2020), the Allahabad High Court held that the government cannot affect the merger of the feeding cadre to the higher cadre if not envisaged under the Service Rules and that an amendment, even if having a retrospective effect, would not adversely affect the rights accrued to the employees under the Rules as existed.
The petitioners feeling aggrieved by the final Seniority list 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. This was in Process under Justice Jagdish Kumar. The dispute pertained 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, Goods-Tax Officers vide Government Order dated 3.5.2011 abolishing the post of Passenger Tax /Goods Tax Superintendents.
"The case mainly hinges upon the question as to whether the Amendment Rules 2018 (to the 1980 UP Transport Taxation Service Rules) are partly retrospective in effect so far as it bestows the benefit of seniority to the respondents and other similarly situated persons in the list of seniority of Passenger Tax, Goods - Tax Officer", observed the Single Judge. The services of the petitioners and the respondents are governed by the provisions of the Uttar Pradesh Transport Taxation (Subordinate), Service Rules, 1980. 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 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 they fulfilled the requisite eligibility criteria, applied for the aforesaid advertised post and were selected for appointment. 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 along with Passenger Tax / Goods Tax Superintendents, by filing a Writ Petition 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. 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. The appointment letters were issued. The petitioners also preferred a Writ Petition in 2015 assailing the Government Order dated 3.5.2011, but not pressed the same with the liberty to file a fresh writ petition, as permitted by the order of this Court dated 26.03.2015. At the same time, the 2011 Writ Petition was also dismissed as a withdrawn vide order dated 17.07.2015. After the disposal of the 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. The petitioners then preferred another writ Petition 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 dismissed vide order dated 18.12.2017 and the matter attained finality. 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 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. 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 for the 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 of 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. An order dated 19.12.2018 was issued by the Deputy Secretary of the state of UP 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. The High 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/judgment dated 17.01.2019 directing the respondents to consider the petitioners for promotion on the post of ARTO (Assistant Regional Transport Officer). The aforesaid order dated 19.12.2018 passed by Deputy Secretary was challenged by the petitioners by filing a Writ Petition 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 directed 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. Despite the direction of this Court, the impugned order dated 15.04.2019 was 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. "The Rules 1980 have been amended namely the U.P. Transport Taxation (Subordinate) Service (First Amendment) Rules 2018. Rule (1) (c) specifically provides that the rules have come into force at once that isw.e.f. since 5.3.2018. It has no retrospective effect. The intention of the legislature was not to make this rule retrospective. The inclusion of the respondents and similarly situated persons in the impugned seniority list is bad in the eyes of law", noted Justice Kumar.The bench noted that even in the second round of the litigation against "the adamant attitude of the State Government" for including the respondents and other similarly situated persons in the seniority list of the Passenger Tax, Goods-Tax Officers, this Court was very clear in its judgment and order dated 7.2.2019 that while deciding the controversy, the Competent Authority would pass appropriate order without being influenced by the impugned order dated 19.12.2018, as well the amended Rules dated 5.3.2018 and further in the light of the observation made in the judgment and order dated 13.04.2017. "The Court in its judgment dated 13.04.2017 and judgment and order dated 7.2.2019 holding that the respondent and other similarly situated persons could not be included in the seniority list in pursuance of the Government order dated 3.5.2011 and order 11.12.2018 passed by the Deputy Secretary", said the Single Judge. It was clear to the bench that the impugned orders passed on 15.04.2019 are in the teeth of the judgment of this Court dated 13.04.2017 and 7.2.2019 as well as observations of the Contempt Court in its order dated 16.11.2017. "...it has been held by the Supreme Court that an amendment even if having retrospective effect would not adversely affect the rights accrued to the employees under the Rules as existed", said the Judge. The bench appreciated that in the present case, Rule 5 of Part III deals with sources of recruitment including the recruitment on the post of Passenger Tax / Goods Tax Officer i.e. 50 % posts by direct recruitment through the Commission and 50 % posts by promotion through the Commission from amongst Passenger Tax/ Goods Tax Superintendents, who have put in 5 years of continuous services as such. The bench noted that there was no provision for recruitment on the post of Passenger Tax, Goods Tax Officers by adopting the method of a merger by an executive order issued by the State Government. The Rules 1980 were very much in existence in the year 2011 when the Government Order dated 3.5.2011 was issued for recruitment/merger of the respondents and other similarly situated persons on the post of Passenger Tax, Goods Tax Officers. The bench observed that at the time of issuance of the Government order dated 3.5.2011, the respondents had completed only three years of service and they were not even eligible for being considered for promotion according to Rules 1980. "It was in gross violation of Rules that the respondents were promoted/recruited by inventing an extraneous method of the merger of their services with the cadre of Passenger Tax, Goods Tax Officers for the merger of the respondents and other similarly situated persons. It is in complete contravention of the statutory provisions, which cannot be superseded by the executive order", reflected the bench. So far as such claim for the seniority of respondents on the ground that they have been working on the post of Passenger Tax, Goods-Tax Officer prior to the joining of the petitioners is concerned, it was observed that the private respondents and similarly situated persons were merged in the cadre of Passenger Tax, Goods-Tax Officer by means of Government Order dated 3.5.2011 despite the fact that it could not be permissible since Rule 1980 were already in existence which provided for only promotion of Passenger Tax / Goods Tax Superintendents to the post of Passenger Tax, Goods-Tax Officer. "This process of selection for promotion was not applied to the respondents, hence, they cannot be said to have been duly promoted to the post of Passenger Tax, Goods-Tax Officer. The Rules did not provide for the merger of the feeding cadre to the higher cadre. However, they are not entitled to claim seniority. The petitioners have been duly elected from the Public Service Commission fully complied with the Rules 1980", concluded the bench. Besides, the bench noted that the petitioners were selected in pursuance of the advertisement of 2009, but the appointment was delayed due to the order passed by the Court. "So far the argument raised about the petitioners being not entitled to seniority since they have been working on supernumerary posts, it does not arise since the Government placed the respondents above the petitioners solely on the ground of their merger by order dated 3.5.2011. The order dated 3.5.2011 has already been found to be bad in law by the Division Bench of this Court vide judgment and order dated 13.04.2017. Since the Rules did not provide for the merger and Government Order could not alter or override the provision of the Statutory Rules", said the bench. Accordingly, the two impugned orders dated 15.04.2019 are quashed. The seniority list dated 17.11.2017 issued in compliance with the judgment dated 13.04.2017 shall be maintained and remained operative. [READ ORDER]