WA 233/2009 BEFORE HON’BLE MR. JUSTICE A.K. GOEL HON’BLE MR. JUSTICE AMITAVA ROY This appeal has been preferred against the order of the learned Single Judge dis missing the writ petition of the appellant against the revised seniority list is sued in the year 2003 retrospectively affecting seniority and promotion of the a ppellant. Prior to 27.6.1989 there were two Directorates - Directorate of Rural Developmen t and Directorate of Panchayat & Community Development which were amalgamated as Directorate of Panchayat & Rural Development w.e.f. 1.7.1989 under the notifica tion dated 27.6.1989. As per the said notification the inter- se seniority of al l the members in the cadre will be determined according to their date of appoint ment to the cadre of Lower Division Assistant (LDA). The appellant had joined in itially as Typist, which post was merged with the LDAs in the year 1980. The app ellant was promoted as Assistant Superintendent on 19.4.1991 and then as officia ting Superintendent in the year 1994. In the Draft Gradation List issued in the year 1998, the appellant was shown senior to the private respondents. As a r esult of recommendation of the DPC in the year 2000, the appellant’s promotion w as regularized as Assistant Superintendent w.e.f. 21.5.1995. However, in the sen iority list issued on 15.3.2003 the appellant was shown junior to the private re spondents against which the appellant filed the writ petition. The grievance of the appellant is that he having earned promotion to a higher po st prior to amalgamation of the two directorates into a single directorate in th e year 1989 and having further earned promotion prior to issuance of revised sen iority list in the year 2003, the seniority of the appellant could not be abrupt ly down graded on a different interpretation of the notification. The writ petition was contested on the plea that the revised seniority l ist was consistent to the amalgamation order of 27.6.1989 and unless the said or der was challenged the revised seniority list could be interfered. Thus the learned Single Judge did not find any merit in the stand of the appellant mainly on the ground that the appellant had not challenged the amalga mation order. The finding of the learned Single Judge is as follows - 17. The record further reveals that while asking for objections from the minist erial staff before preparation of final seniority list vide letter dated 15.02.2 003, copy of the Government order issued vide Notification No. PDB/155/85Pt-V/11 dated 27.06.1989 containing the modalities/principles of fixation of seniority adopting the entry point of joining as LDA was also made available to all, which , however, has not been challenged till date. Though Mr. Sharma, learned Sr. cou nsel for the petitioner has submitted that the same was challenged by way of an affidavit-in-reply, but record reveals that the same was not pressed and no ord er has been passed by this Court by setting aside the Govt. Order issued vide no tification No. . PDB/155/85Pt-V/11 dated 27.06.1989. The same therefore holds th e field till date. 18. After hearing the parties at length and upon perusal of the record of the ca se as noted hereinabove, in my considered opinion, the only point for determinat ion is as to whether the modalities/principles contained in the aforesaid Govern ment order dated 27.6.1989 laying therein at Clause 1(i), the principles/modalit ies in respect of determination of inter-se seniority of the members in any cadr e appointed by direct recruitment or by promotion to be the date of their appoin tment to the cadre of LDA is arbitrary or unreasonable ? The basis argument advanced on behalf of the petitioner is that this cut o ff point of the date of appointment to the cadre of LDA has been adopted not by applying the provisions of service rules but, by an executive instruction only. Therefore the same is void, illegal, arbitrary, unreasonable and without jurisdi ction. 19. On perusal of the records, I find that their amalgamation of the aforesa id two directorates, a committee was constituted to consider the grievance of th e petitioners and other similar employees regarding the fixation of inter-se sen iority in the impugned seniority list. The committee gave reasonable opportunity to the petitioners and respondents as well as other objectors. They were also p ersonally heard and after due deliberation, the impugned inter-se seniority list was prepared taking into consideration the modalities laid down vide Government order dated 27.6.1989. For preparation of a combined seniority list in an amalg amated directorate, a cut off date must be adopted, which has been adopted in th e instant case as the date of joining in the post of LDA. I find no reason to in terfere with the decision of the Government regarding the cut off date for prepa ration of the inter-se seniority list by taking the date of joining as LDA, whic h the petitioner could not establish as violative of Article 14 and 16 of the Co nstitution of India. We have heard learned counsel for the parties. The learned counsel for the appellant submits that the amalgamation order was n ot intended to affect promotion already given and was read by the authorities in that way for a period of about 14 years. In the year 2000, the appellant was gi ven further promotion thus abruptly affecting promotion already granted was arbi trary and was not correct interpretation of the circular. The circular was inten ded to apply for determining inter-se seniority of the members in the same categ ory of post on the cut off date. The learned counsel for the contesting respondents supported the impugne d judgment mainly by submitting that in absence of any challenge to the order of amalgamation, no fault could be found with the revision of seniority list in th e year 2003. After due consideration, we are of the view that the appeal must succeed . The notification dated 27.6.1989 inter alia is as follows - 1(i) The inter-se- seniority of members in any cadre appointed by direct recru itment or by promotion shall be determined according to the date of their appoin tment to the cadre of L.D. Asstt, if a member joined the appointment within 15(f ifteen) days from the date of receipt of the order of appointment or within the period of extension granted by the Appointing Authority not exceeding 15(fifteen ) days if the member was prevented from joining within the said initial period o f fifteen days by circumstances of a public nature or for reasons beyond his/her control. In the present case it is undisputed that the appellant had been given p romotion to the post of UDA on 21.5.1983 prior to the date of amalgamation of th e two directorates into a single directorate. The order of amalgamation passed i n the year 1989 could not be read as adversely affecting the promotion already g iven, retrospectively down grading the seniority of the appellant. Even after th e order of amalgamation was passed, the appellant was given further promotion in cluding the promotion on recommendation of regular DPC w.e.f. 21.5.1995. Thus th e interpretation of the notification in question was that the principle for dete rmination of inter-se seniority laid down therein was not intended to apply to t he employees who were already promoted to the higher posts. This was intended to apply only to those who were in the category of LDA, on the cut off date. In this view of the matter, even if the notification was not challenged, the app ellant could have asserted that his promotion could not be undone and the revise d seniority list issued in the year 2003 could not abruptly down grade the senio rity of the appellant. Accordingly, we allow this appeal and set aside the impugned order and d irect the respondents not to give effect to the impugned revised seniority list dated 19.7.2003 qua the appellant so as to affect his promotion already given an d consequential seniority in higher posts.