Seniority Cannot Be Given Retrospectively, When Rules are Prospective: ALL HC

Yesterday, the Allahabad High Court at Lucknow delivered a Judgment on the dispute of Seniority. The Court has decided the issue of Retrospective Seniority to Employees.

What is the Dispute?

The dispute pertains to the placement of Seniority on the post of Passenger Tax, Goods-Tax Officer amongst the direct recruits. 

Petitioners and the private respondents were working on the post of Passenger Tax / Goods Tax Superintendents, which is the feeding cadre for promotion to the post of Passenger Tax, Goods-Tax Officers. 

But the services of Petitioner were merged with Passenger Tax, Goods-Tax Officers vide Government Order dated 3.5.2011 abolishing the post of Passenger Tax / Goods Tax Superintendents.

The Petitioners approached the Allahabad HC at Lucknow challenging final Seniority list dated 15.04.2019. 

In this list, the Petitioners placed below Passenger Tax / Goods Tax Superintendents, whose services have been merged in the higher cadre of posts of Passenger Tax, Goods-Tax Officer. 

But the petitioners were directly appointed to this higher cadre.

Submissions of Petitioner: Seniority Not Retrospective

The counsel pleaded that Passenger Tax / Goods Tax Superintendents couldn’t be merged with the posts of Passenger Tax, Goods-Tax Officers unless there is amendment in the Rules 1980.

Further, the Transport Commissioner has no power to unsettle the final seniority list dated 17.11.2017 finalized in compliance of mandamus issued by the Court.

In support of the above contention, counsel for the Petitioner relied on the following Judgments:

Submissions of Respondent: Amendment is Retrospective

On the other hand, State Counsel pleaded that the Government Order dated 3.5.2011 is still in operation.

Further, by the first amendment in Rule 2018, the post of Goods/ Passenger Tax Superintendents merged with the post of Passenger Tax, Goods-Tax Officer. 

So, in view of the note apended to the Rule, the Government Order dated 3.5.2011 has retrospective effect. Hence, the private respondent and the similarly situated persons have rightly placed in the seniority list.

Another plea raised before the Court was of non-joinder of necessary parties.

Further contention was that the date of entry of the petitioners in the service was subsequent to the private respondents. 

Therefore the petitioners cannot be granted Seniority from the date prior to birth in the cadre by placing them over and above the respondents. 

Counsel relied upon Amarjeet Singh Vs. Devi Rata reported in 2010 (1) SCC Page 417, to support above submission.

Issue before the Court:

1. Whether the amended Rules 2018 is 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?

2. Whether Marginal Note of a Section can be referred for construing the meaning of Section?

Observation and Decision of Court:

Firstly, the Court overruled the objection concerning the non-joinder of parties. 

Allahabad High Court at Lucknow 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. The objection raised is frivolous and is liable to be rejected. 

Hon’ble Court referred to the Judgment of the Supreme Court in the case of A. Janardana v. Union of India reported in 1983 (3) page 601. In this case, the Supreme Court held that in case the person does not claim Seniority over any one particular individual. Then it is not necessary to implead all the persons.

Hon’ble Court also referred to the judgment of Prabodh Verma and others Vs. State of UP and others, reported in (1994) 4 SCC page 251.  In which the Supreme Court provided for impleadment of affected parties in representative capacity.

The Allahabad HC at Lucknow held that in the first amendment Rules 2018, there is no ambiguity concerning the applicability of the Rules. By reading Rule 1 (2), it is clear that it would come into effect at once w.e.f. 5th March 2018.

The intention of the legislature was not to make this rule retrospective. So, the Note to Rule 4(4) cannot be treated as amendments of the Rule 1980.

On the second issue, the High Court held that the marginal notes to a Section of an Act cannot be referred for the purpose of construing the meaning of section.

Particularly when the language of the section is plain and simple.

Function of the marginal note is just brief indication of the contents of the sections and cannot construe the meaning of the body of the sections if the language of provision is not clear.

It cannot be treated as substantive part of the main provision itself.

Given above the High Court allowed the Writ Petition. The Court has quashed the Orders dated 15.04.2019.

Case Details:

Title: Vijay Kishore Anand And 9 Ors vs State Of UPUP and Others

Case No. Service Single No. – 12438 Of 2019

Coram: Hon’ble Mr Justice Manish Kumar

Date of Judgment: 20.10.2020

Counsel for Petitioner: Gaurav Mehrotra, Abhinav Singh

Counsel for Respondent: CSCCSC, Apoorva Tewari, Hemant Kr, Mishra, Rajeiu Kumar, Tripathi, Surya Narayan Mishra, Vinod Kumar Singh

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