The main legal point established in the judgment is that seniority should be determined based on initial appointment to the post, and no retrospective promotion can be granted to adversely affect others.

S. B. SINHA, J.

( 1 ) LEAVE granted.

( 2 ) VEXED question of inter se seniority between the appellants and the private respondents herein is in question in this appeal which arises out of a judgment and Order dated 27. 07. 2005 passed by the High Court of Jammu and Kashmir at Srinagar in LPA No. 164 of 2004 and LPA Nos. 6, 19 and 20 of 2005.

( 3 ) NAMES of the respondents were entered in the List E on 25. 04. 1978. They were promoted on officiating basis on 19. 05. 1979.

( 4 ) THE Government of Jammu and Kashmir, however, on or about 01. 08. 1985 issued a notification directing their promotion with retrospective effect ignoring the seniority of the appellants herein inter alia stating:

" (a) The above mentioned petitioners as well as non-petitioners, who were brought on promotion list 'e' vide PHQ order No. 282 of 1978 and 283 of 1978 dated 25. 04. 1978, barring these who face any moral stigma notwithstanding the fact that they were brought on promotion list 'e' and have not so far been promoted as SIs, shall be deemed to have been promoted as SIs for the purpose of their seniority only, w. e. f. the date they were brought on list 'e', i. e. , 25. 04. 1978. (b) The ASIs who were promoted as SIs, vide kashmir Police Office Order No. 288 of 1978 dated 05. 06. 1978 and Jammu Range Police Office order dated 158 of 1978 dated 07. 06. 1978, w. e. f. 1. 6. 1978, shall also be deemed to have been promoted as SIs, w. e. f. 24. 6. 1978 for seniority purposes only and shall figure at appropriate places in the combined seniority list of SIs in order of their seniority. "

( 5 ) REALISING that the said order may be held to be illegal by a court of law, by an order dated 3. 12. 1985 the same was cancelled. On the same day, however, by an order No. 1263 of 1985, promotions were directed to be granted with retrospective effect from 25. 04. 1978, i. e. , from the date on which the respondents were brought on promotion List E.

( 6 ) QUESTIONING the said order, a writ petition was filed by the appellants herein in the High Court. A learned Single Judge of the said High Court allowed the said writ petition opining:

"unless a person is formally promoted to the post of Sub-Inspector, he cannot press his claim that he has been promoted substantively to the post of Sub-Inspector merely on the ground of having been brought in the panel of eligible candidates in promotion list 'e'in such event, the private respondents, therefore, in terms of the Order dated 25. 4. 1978, cannot be said to have been promoted to the posts of Sub-Inspectors. They have been only brought on the promotion list and their promotion orders had to be issued by the official respondents only subject to the fulfillment of the conditions mentioned against each by a separate/ independent order. "

In regard to the question of seniority, it was held:

"it is not in dispute that the Petitioners in both the writ petitions have been appointed on 25. 4. 1979 as sub-Inspectors and their seniority, therefore, has to commence from that date notwithstanding that they have been put on probation for a period of three years. Therefore, the non-official respondents including respondents 124 to 134, whose names figured in Order No. 141 of 1980 dated 14. 4. 1980 issued by DIG of Police, Kashmir, as officiating promotions against the vacancies of inspectors/ Sub-Inspectors undergoing practical training, who have been promoted after 25th April 1979 cannot claim to rank senior to the Petitioners. It, therefore, follows that all those persons/ respondents, who have been promoted after 25th april, 1979 (when the Petitioners were appointed as direct recruits), have to be termed as junior to the petitioners. Under Rules 382 to 399, modes of promotions to the higher rank specified therein are provided. The non-obstante clause or expression used in Rule 399 further gives a discretion to the inspector General of Police for making substantive promotions to the posts of Sub-Inspectors after holding oral/ writte