IMPORTANT POINT
The court established that seniority must be determined based on absorption dates and cadre distinctions, and arbitrary changes to seniority lists without proper justification are unlawful.

JUDGMENT :

Ravindra Maithani, J.

The challenge in this petition is made to Office Memorandum dated 16.08.2017, issued by the respondent no.2, the Secretary, State Election Commission, Uttarakhand (“the Commission”). By it, the inter-se seniority of the petitioner and the respondent no.3 has been disturbed and the respondent no.3 has been shown senior to the petitioner. The petitioner claims that the inter-se seniority, as determined by the Commission, on 17.04.2015, may be restored.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows:-

(i) The petitioner did join as Junior Clerk in Rural Development Department, in the State of Uttar Pradesh on 15.05.1995.

(ii) The respondent no.3 was appointed on compassionate ground in the Rural Development Department on 16.11.1996.

(iii) After creation of the State of Uttarakhand, positions were to be filled up in the Commission. The cadre was determined.

(iv) The petitioner joined the Commission on 17.11.2001, as Junior Accountant.

(v) The respondent no.3 was attached with the Commission on 13.09.2001, and he was absorbed in the services of the Commission on 13.12.2001.

(vi) The petitioner was given ad-hoc appointment against the vacant post of Junior Clerk on 17.01.2003. On the same date, the respondent no.3 was given ad-hoc promotion on the vacant post of Junior Clerk.

(vii) On 15.09.2006, the Commission absorbed the services of its employees and regularised their services. In this list, the date of regularization of the respondent no.3 has been shown as 13.12.2001, whereas, the date of regularisation of the petitioner was shown as 17.01.2003 (Annexure No.7).

(viii) On 09.01.2006, the Commission issued a tentative seniority list, in which the petitioner was shown below the respondent no.3. The petitioner made his representation to it. The representation of the petitioner did not find favour with the Commission and by Office Memorandum dated 28.07.2011, final seniority list was published by the Commission. Aggrieved by it, still, the petitioner filed representation.

(ix) On 03.11.2014, the Commission constituted a Four Members’ Committee to look into the matter.

(x) The Committee, so constituted, gave its recommendation on 09.03.2015, and found that the petitioner should have been treated senior to the respondent no.3 for the following reasons:-

(a) In the month of December, 2001, the petitioner should have also been considered for absorption in the Commission.

(b) While filing up the vacancies in promotional posts, one post ought to have been filled up from reserved category, but it was not done, and the posts were filled up from general category.

(c) In the year 2001, the name of the petitioner was not considered for absorption because, at that time, it was treated that he could not have been absorbed in the ministerial cadre, as he belongs to the accounts cadre, whereas, subsequently, the petitioner was absorbed in the ministerial cadre only.

(d) Had one post been left for reserved category, the petitioner would have been promoted.

(e) On 17.04.2015, the Commission, by an Official Memorandum, revised the seniority list and shown the petitioner senior to the respondent no.3. The respondent no.3 made representation against it, which was rejected on 03.11.2015, and another representation was dismissed on 12.01.2016.

(f) The respondent no.3 still made a representation on 02.03.2016. On it, the matter was referred to the Department of Personnel.

(g) The Department of Personnel, by its communication dated 06.06.2017, laid down the rules to determine the seniority. Thereafter, by the impugned Office Memorandum, earlier seniority list dated 17.04.2015 has been disturbed and another seniority list was issued by the Commission on 16.08.2017, placing the respondent no.3 above the petitioner.

4. Learned counsel for the petitioner would submit the following points in his submission:-

(i) After the seniority list was made final,