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. (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, based on the recommendation of the Committee on 17.04.2015, it could not have been disturbed without any basis. (ii) On a representation of the respondent no.3, the matter was referred to the Department of Personnel, and the Department of Personnel set the following rules determining the seniority:- (a) Seniority is determined cadre wise. If the source of recruitment are different, can for both posts, joint seniority list be prepared or not? Its answer is in NEGATIVE, because, where the source of recruitment are different, their seniority is determined in respective source. Even otherwise, if personnel are absorbed, it is recorded in the absorption rules that the seniority shall be determined from the date of absorption. Its answer is in NEGATIVE, because, where the source of recruitment are different, their seniority is determined in respective source. Even otherwise, if personnel are absorbed, it is recorded in the absorption rules that the seniority shall be determined from the date of absorption. If two personnel were appointed on the same date in the same cadre, in such cases, their seniority would be determined from the date of their substantive appointment. 5. Learned counsel for the petitioner would submit that the opinion, which was given by the Department of Personnel on 06.06.2017, has not been followed. The matter has not been examined, and by the Official Memorandum Dated 16.08.2017, simply, without any reasons, seniority has been decided. 6. Learned counsel appearing for the Commission would submit that the absorption order dated 13.12.2001, has not been challenged by the petitioner. He would submit that after initial preparation of the seniority list, when the representation of the petitioner was examined by a Committee, the petitioner was shown above the respondent no.3 in the seniority list, but it is argued that based on the opinion received from the Department of Personnel, it has been disturbed by the impugned Office Memorandum dated 16.08.2017. It is also argued that the petitioner has not sought his seniority from the date of his initial appointment in the parent cadre. 7. Learned counsel for the respondent no.3 would submit that the respondent no.3 was absorbed in the Commission on 13.12.2001, which is a date prior to the date when the petitioner was absorved in the Commission. He would place reliance on the principles of law, as laid down by the Hon’ble Supreme Court in the case of Union of India and Others Vs. Deo Narain and Others, (2008) 10 SCC 84 . He would refer to Para No.35 of it, which is as hereunder:- “35. In our opinion, Renu Mullick, (1994) 1 SCC 373 , also supports the view which we are inclined to take, namely, that an employee who is transferred to an other collectorate does not lose his/her past service for the purpose of considering his/her eligibility. But, if such transfer is voluntary or unilateral on condition that he/she will be placed at the bottom of the seniority list in the transferee department, the said condition would bind him/her and he/she cannot claim seniority over the employees in the transferee department.” 8. But, if such transfer is voluntary or unilateral on condition that he/she will be placed at the bottom of the seniority list in the transferee department, the said condition would bind him/her and he/she cannot claim seniority over the employees in the transferee department.” 8. The petitioner and the respondent no.3, both were working in the Rural Development Department of the State of Uttar Pradesh, when State of Uttarakhand was created. Though they were working in the same department, but they were under different cadre. It is admitted and undisputed fact that the petitioner was working in the Accounts Cadre of the Rural Development Department, whereas, the respondent no.3 was working in the Ministerial Cadre of the Rural Development Department. 9. In the parent cadre, admittedly, the petitioner was appointed on 17.05.1995, in the accounts cadre, whereas, the respondent no.3 was appointed in the Ministerial cadre on 16.11.1996. In their department, their cadres were different. As per the communication and the opinion of the Department of Personnel, in such situation, based on their initial appointment, seniority may not be determined, because seniority relates to the cadre. 10. The respondent no.3 joined the Commission on 13.09.2001, whereas, the petitioner joined the Commission on 28.11.2001. 11. It is claimed by the petitioner that there was no absorption rules in the Commission in the year 2001. This fact is not denied by the Commission. But the fact remains that on 13.12.2001, the services of the respondent no.3 were absorbed in the Commission. The petitioner’s case was not considered. If there were no absorption rules, how could absorption be made? 12. The question is that if there were no absorption rules, why the petitioner was left on 13.12.2001 from the zone of consideration of absorption? This has been replied by the Committee, which was constituted on 03.11.2014 by the Commission to look into the representation of the petitioner, in which he has claimed that he is senior to the respondent no.3. In its recommendation, the Committee has recorded that in the month of December, 2001, the name of the petitioner ought to have been considered for absorption. He has been wrongly denied on the ground that he belongs to the account cadre, because, as per the Committee, the respondent no.3 was subsequently absorbed in the Ministerial Cadre. The petitioner was left from the consideration zone of absorption on 13.12.2001 for no fault of his. He has been wrongly denied on the ground that he belongs to the account cadre, because, as per the Committee, the respondent no.3 was subsequently absorbed in the Ministerial Cadre. The petitioner was left from the consideration zone of absorption on 13.12.2001 for no fault of his. 13. It is argued on behalf of the Commission that the order dated 13.12.2001 is not put to challenge. The petitioner is not aggrieved by the absorption or the respondent no.3. He is aggrieved by the seniority. If non consideration of the petitioner for absorption on 13.12.2001 is not justified, it will definitely have impact on the seniority. In such case, it cannot be said that because the respondent no.3 was absorbed on 13.12.2001, therefore, he would be senior to the petitioner. 14. The Committee, constituted by the Commission to look into the representation of the petitioner against the seniority list, in its report dated 09.03.2015, has given cogent reasons for keeping the petitioner above in the seniority list to the respondent no.3. Subsequent to it, when the Commission sought opinion of the Department of Personnel, which is Annexure No.21, dated 06.06.2014, the rules for determining seniority was fixed by the Department of Personnel, and conveyed to the Commission. The impugned Office Memorandum reveals that the matter was not examined. Simply, by a cryptic Office Memorandum dated 16.08.2017, the seniority list has been upset. This Office Memorandum may not be upheld. Even this order is not in conformity with the guidelines, as given by the department of personnel. Therefore, this Court is of the view that the impugned Office Memorandum dated 16.08.2017, issued by the Commission, is not in accordance with law. It deserves to be set aside. 15. The petition is allowed. The impugned Office Memorandum dated 16.08.2017 is set aside. The inter-se Seniority position of the petitioner and the respondent no.3, as has been determined by the Office Memorandum dated 17.04.2015, is restored.