Madras High Court C.L.Pasupathy vs The Engineer In Chief (Wro) on 29 August, 2008 W.P.No.3002 of 2007 in the court of THE HON'BLE MR. JUSTICE S.MANIKUMAR- in Para 28 defined 'rem''

 Madras High Court

C.L.Pasupathy vs The Engineer In Chief (Wro) on 29 August, 2008

THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.08.2008
CORAM

THE HON'BLE MR. JUSTICE S.MANIKUMAR

W.P.No.3002 of 2007 

C.L.Pasupathy
Assistant (Selection Grade),
O/o Executive Engineer,
Public Works Department,
North Presidency Division,
Chepauk, Chennai-5.					             ... Petitioner vs 	  		                          
1.The Engineer in Chief (WRO)
   and the Chief Engineer (General) PWD,
   Chepauk, Chennai-5.
2.The Secretary to Government,
   Public Works Department,
   Chennai-9.						   .... Respondents

	This petition came to be numbered by transfer of O.A.No.1083 of 1996 on the file of the Tamil Nadu Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records connected in Lr.No.83(3)/23725/2000 dated 26.2.2004 of the Ist respondent and set aside the same and direct the respondents to promote the applicant as Assistant on par with Tmt.Sujana and consequential promotion as Superintendent in the year with effect from 16.6.2000 on par with his junior of Tmt.Sujana by extending the benefits of the Hon'ble Tribunal order dated 7.5.2002 in O.A.No.7331/2001. 

		For Petitioner      ... Mr.G.Elenchezhiyan	
		For Respondents  ... Mr.Gopaninathan
					    Addl.Govt.Pleader.

				 	  ORDER

The petitioner was appointed as a Junior Assistant through Tamil Nadu Public Service Commission in Public Works Department in 1973 and he was promoted as Assistant on 10.6.1983. He passed District Office Manual Test in November, 1975 and passed other tests for P.W.D Officers in November, 1980, the pre-requisite qualifications as per Rule 30(b) of the Tamilnadu Subordinate Ministerial Services and thus he was qualified to be included in the panel for promotion as Assistant in the year 1980. But his name was not included in the said panel. There is a provision under Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules which provides that panel should be prepared every year. Though he was qualified for promotion as Assistant, immediately after passing the departmental tests, he was promoted as Assistant only on 1.6.1983 and joined the post on 10.8.1983. The seniority list in the post of Assistant made in the year 1988 was communicated to him. The petitioner and his colleague Mr.Amurudeen made representations, dated 20.8.1988 for revision of seniority for placing them over and above their immediate juniors. A further representation was also made on 15.3.1989 in this regard. In the said representation, the petitioner brought to the notice of respondents, a decision of the Supreme Court in Ganga Ram vs. Union of India and others reported in AIR 1970 Supreme Court 2179.

2. The petitioner has further submitted that his colleague Mr.Amurudeen in his representation had pointed out that in Secretariat service, the seniority of certain Assistant Section Officers who were overlooked due to non-passing of certain departmental tests were restored their seniority in appropriate places, though they had passed the departmental test belatedly. The representation of the said Mr.Amurdeen made in the month of May' 1993, was forwarded by the Chief Engineer, Irrigation, on 24.5.1993 to the Chief Engineer General, P.W.D. for restoration of seniority. He also made another representation, dated 28.11.1984 in which he had questioned the validity of fixing the seniority and sought for its revision according to Tamil Nadu Public Service Commission seniority. By circular memo dated 22.4.1994, a committee was constituted to look into the issue of seniority in the case of Junior Assistants and Typists in Public Works Department. The Committee furnished a report and the findings were circulated in proceedings dated 22.9.1995. The authority in his findings has specifically stated that in G.O.Ms.No.586 PWD dated 27.3.1972, the Government have issued orders for implementation of single unit system in P.W.D. for appointment and promotion.

3. The petitioner has further stated that though TNPSC had been allotting the candidates based on single unit system from 1973 onwards, vide Gazette Notifications dated 25.3.1973 and 5.8.1973, the authority has failed and neglected to implement the single unit system, but started implementing the system only from 1979 onwards. Therefore, the seniority of the petitioner and the said Mr.Amurudeen could not be fixed properly and in the meanwhile their juniors were promoted. Although there were deliberations on the report of the committee and inspite of the fact that the Tamil Nadu Administrative Tribunal by a common order, in a batch of Original Applications in O.A.Nos.320 of 1989 etc. batch dated 23.11.1991, clarified that promotions should be made with reference to the seniority in the feeder category of Junior Assistants, who were qualified on the date prescribed for consideration, in respect of each year, promotions were made indiscriminately without following the seniority. It was further observed in the said order that the question of fixing seniority with reference to date of passing of the tests does not arise. The seniority of the petitioner and his colleague was not restored as per TNPSC ranking and therefore both of them made representations to the authorities to refer the seniority.

4. The petitioner has further submitted that as per the State and Subordinate Service Rules a panel has to be prepared for the post of Assistant every year. Had the panel been prepared for the year 1980, the petitioner would have been included in the said panel. It is the specific case of the petitioner that no panel was prepared till 1984. His request to promote him as Assistant for the year 1980 was rejected on 31.7.2001, wherein it was stated that the panel for the year 1974 was effected on 6.9.1979. Similarly panel prepared for the year 1976 was given effect upto 19.3.1981. According to the petitioner, as per the service rules, panel prepared for a particular year can be operated only for one year and giving effect to the said panel for subsequent years is a clear violation of Government order No.3467, Public (Ser.M)Department dated 31.10.1975. It is the grievance of the petitioner that panels for each year were not prepared due to administrative lapses and consequently some of the juniors who became qualified earlier than the petitioner were included in the panels drawn upto 1979 and promoted as Assistants from the said panels. Had the respondents prepared panels for each year, the petitioner would have been included in the respective panel and consequently gained promotion. It is the grievance of the petitioner that though he was qualified for promotion to the post of Assistant in November, 1980 by passing all the tests, he was promoted only in the year 1983.

5. The petitioner has further submitted that the respondents have prepared a panel for the post of Superintendent for the year 1998-1999. The petitioner as well as his colleague Mr.Amurudeen made representations to the respondents to revise the panel on the ground that their juniors were included in the said list. The respondents rejected the request of Mr.Amurudeen on 31.7.2001 on the ground that he had passed the Account test only in May 1979 and the District Manual Test in November, 1974 and since his juniors had already passed the departmental tests, earlier to him, they were included in the panel for the year 1976 and consequently promotions were given to them on 19.3.1981. The petitioner has further submitted that the said Mr.Amurudeen filed Original Application No.7331 of 2001 before the Tribunal challenging the rejection order and sought for a direction to include his name in the panel of Assistants for the year 1980 and for a consequential direction to promote him as Assistant and as Superintendent, on par with that of his junior. The Tribunal by its order dated 7.5.2002 allowed the Original Application and directed that Mr.Amurudeen should be promoted as Assistant with retrospective effect and consequently promote him as Superintendent in the year 2000.

6. It is the case of the petitioner that once the Tribunal has held that denial of promotion to seniors as illegal on the ground that the panel prepared for the earlier years cannot be operated for the subsequent period, the said decision is equally applicable to the case of the petitioner and also to similarly placed persons. Therefore, the petitioner has made a representation dated 15.7.2002 to the respondent contending interalia that his junior, Smt.V.R.Sujana was promoted as Assistant on 16.7.1981 and consequently as Superintendent on 16.6.2000; that he had passed the departmental tests in the year 1975, 1980 respectively, and therefore entitled for promotion as Assistant retrospectively from 16.7.1981 and consequently as Superintendent from 16.6.2000. The respondents by order dated 17.3.2003 replied to the petitioner that the government had been addressed for clarification and on receipt of the orders, the request of the petitioner would be considered for review. The matter was delayed and therefore the petitioner sent further representations dated 24.3.2003 and 14.3.2003 to the respondent. Unfortunately, the claim of the petitioner was rejected by the Engineer in Chief (WRO) and the Chief Engineer PWD, Chennai, the first respondent on the ground that the order of the Tribunal dated 7.5.2002 in O.A.No.7331 of 2001 filed by Mr.Amurudeen would be applicable only to that individual and it cannot be extended to the case of the petitioner. Being aggrieved by the above said order, the petitioner has preferred the present writ petition for the relief as stated supra..

7. Per contra, the respondents in their counter affidavit have submitted that the petitioner was recruited through Tamil Nadu Public Service Commission in the competitive examination held in the year 1973 for Group-IV Service for the post of Junior Assistant, which falls under the Taminadu Ministerial Service. He joined government Service as Junior Assistant on 2.11.1973. The government issued orders in G.O.Ms.No.586, Public Works Department dated 27.3.1972 introducing one unit system for Tamil Nadu Ministerial Service as against the prevailing many units system, at the level of the Chief Engineers and Superintending Engineers with effect from 1.4.1969 as per G.O.Ms.No.1338 Public Works Department dated 17.6.1971 for the purpose of recruitment/promotion/appointment. Therefore to fall in line with the government orders, recruitment particulars in the initial category of Junior Assistants/Typists were collected from various operating units Officers, for consolidating it into a single unit combined seniority list for Ministerial Staff of the entire Public Works Department. The final phase of implementation of the one unit system for effecting promotion to the post of Assistants was made from 24.7.1979 based on guidelines of the Government.

8. The respondents have further submitted that in the meanwhile, the then prevailing circle-wise seniority was not disturbed and many unit Officers in their capacity as appointing authorities for the post of Assistant had already promoted qualified Junior Assistants/Typists, on regular basis against the existing vacancies until 24.7.1979. It is further submitted that the date from which one unit system has to be implemented was not specifically mentioned in the government in G.O.Ms.No.586, Public Works Department dated 27.3.1972. Thus, promotions effected by the Chief Engineer (General), Chennai with effect from 24.7.1979 in the capacity of One Unit officer and promotions to the post of Assistants made in between 27.3.72 and 24.7.79, by other unit officers, in exercise of their powers vested with them were taken up for consideration and that the Government issued orders regularising of services of those Assistants who were promoted as Assistants between 27.3.72 and 24.7.79, by G.O.(4D) 3, Public Works Department dated 21.7.1981. At paragraph '7' of the above said Government order, it was further ordered that one unit system for the purpose of recruitment/promotion/appointment etc. in respect of Junior Assistant/Typist (including steno-typist)/assistant/Superintendent in Public Works Department be deemed to have implemented with effect from 24.7.1979.

9. The respondents have further submitted that the petitioner, joined government Service as Junior Assistant on 12.11.1973. As per rules 30 (b) of the Special Rules for the Tamil nadu Ministerial Service ( Annexure IV )contained in Section 24 of the Tamil Nadu Service Manual Volume-III, one should pass the Account Test for Public Works Department Officers and Subordinates and District Office Manual Test to become eligible for promotion to the post of Assistant. Since the petitioner had qualified for promotion belatedly, he could not be considered for promotion as Assistant prior to 24.7.1979, in the then prevailing unit i.e. Office of the Superintending Engineer, PWD, Madras Circle, Chennai and therefore his name was included in the list of Assistants who were regularised as per G.O.(4d) 3, Public Works Department dated 21.7.81.

10. The respondents have further submitted that, 15th March of every year is the crucial date, for preparation of panel as per Rule 13(A) of the Special Rules for the Tamil nadu Ministerial Service. The name of the petitioner could be considered for promotion as Assistant by the Chief Engineer (General) Public Works Department,Chennai, the Unit officer in the panel for year 1982-83 and on promotion, the petitioner joined duty as Assistant on 10.8.1983. The respondents have further submitted that taking into consideration of date of passing of the Special Qualifying Tests, the Petitioner was given promotion as Assistant and placed in the seniority list of Assistants. Aggrieved by the same, the petitioners filed O.A.No.1083 of 2004 seeking revision of seniority for the post of Assistant, which is renumbered as present writ petition.

11. According to the respondents, the facts of the present case is entirely different from the case in O.A.No.5818 of 1993, decided in favour of those who were promoted by the concerned Unit Officers between 27.3.1972 and 24.7.1979 prior to the implementation of one unit system.

12. It is further submitted that the petitioner had accepted the promotion in the post of Assistant, as he did not have any valid ground to protest. As per Rule 35(f) of the Tamil Nadu State and Subordinate Service Rules, the representation of the petitioner dated 25.10.1989 submitted after six years from the date of promotion is liable to be rejected summarily. As regards the contention that the Assistant Section Officers of the Secretariat Service were given retrospective seniority, the respondents have contended that service rules for Secretariat Service and Tamil Nadu Ministerial service are not one and the same and therefore the said contention is not tenable.

13. It is further contented that persons recruited as Junior Assistants in 1973,1974,1975, and 1976 by the Tamil Nadu Public Service Commission i.e. many juniors, qualified in the departmental tests were promoted as Assistants and that their inter-se-seniority has already been fixed. The contention of the petitioner to re-fix the seniority in the post of Assistants on the basis of his seniority in the post of Junior Assistants for the year 1973 cannot be accepted, for the reason that, he was promoted only in the year 1983, after passing the departmental tests in November, 1980. It is the further contention of the respondents that simply because one of his colleagues, a Tamilnadu Public Service Commission allottee was given promotion retrospectively, the same cannot be extended to the case of the petitioner who had passed the qualifying tests much later than his juniors.

14. The respondents have submitted that the petitioner had passed the tests only in November 1980, as per the provisions contained in Rule 30(b) of the Tamilnadu Ministerial Service and therefore he cannot be considered for promotion as Assistant in the year 1980. He can be considered for promotion only for the year 1982-83, based on his accrued seniority and against the estimated vacancies and thus he was rightly promoted as Assistant with effect from 10.8.1983. It is their further case that when the petitioner was considered for promotion, none of his juniors were considered.

15. The respondents have further submitted that petitioner was promoted as Assistant only under the one unit system in Public Works Department after passing the prescribed Tests. As regards the case of Mr.Amurudeen, respondents have submitted that he had passed the prescribed tests during 1979 and became qualified to be promoted as Assistant during 1979 itself, whereas the petitioner has passed the prescribed test only in November, 1980 and as such, he cannot compare himself with Mr.P.S.Amurudeen.

16. It is further submitted that when the Tribunal allowed the Original Application in O.A.No.l7331 of 2001 by its order dated 7.5.2002, it gave a direction to include the case of Mr.Amurudeen in between two existing Superintendents, namely, Mr.S.Nizamudin and Mr.S.Sebastian. Accordingly, the said individual was promoted as Superintendent to comply with the orders of the Tribunal, subject to the revision of seniority, which is yet to be decided by the Government. The respondents have further submitted that the petitioner cannot be promoted as Assistant along with Mr.Amurudeen for the reason, that the said individual got himself qualified for the post of Assistant by passing the District Office Manual Test during May 1974 and the test for Public Works Department and Officers and Subordinate during November 1974 and therefore he was promoted as Assistant by the Chief Engineer (General), Chennai and joined duty as Assistant on 6.5.1981 itself. Whereas, the petitioner passed the above two tests, only during November 1975 and 1980 respectively. Considering crucial date for preparation of the panel of Assistants, for the year 1980-81, M.Amurudeen was promoted as Assistant.

17. Similarly, in respect of Smt.V.R.Sujana, she was qualified for promotion as Assistant by passing the District Office Manual test in May 1974 and the Account test for Public Works Department Officers and Subordinates in November, 1974 much earlier to the crucial date i.e. 15.3.1980. Therefore, the respondents have submitted that the petitioner case cannot be equated with that of his juniors for promotion to the post of Assistant and consequently as Superintendent in the year 2000-2001. Knowing fully well that his juniors were promoted to the post of Assistant, on the basis of their date of acquiring special qualifications, the petitioner has taken up the issue of seniority, in the post of Assistant on the basis of his seniority in the feeder category post of Junior Assistant, as per Tamil Nadu Public Service Commission Seniority,which according to the respondents is confined only to the post of Junior Assistant.

18. The respondents have further submitted that when the Government was addressed for clarification of the implementation of the orders of the Tribunal dated 7.5.2002 made in O.A.No.7331 of 2001, legal opinion was sought for from the Learned Senior Standing counsel, Government of Tamilnadu and it was opined that the above said orders could be confined only to the petitioner therein, in the Original Application. Therefore, the respondents have contended that without being promoted as Assistant between 27.3.1972 and 24.7.1979, by the then prevalent unit Officers, the petitioner has no locus standi to seek for promotion as Superintendent retrospectively on par with Mr.Amrudeen.

19. Submissions of the learned counsel appearing for the parties:

Placing reliance on the order of the Tribunal made in O.A.7331/01 dated 7.5.2002, learned counsel for the petitioner submitted that petitioner as well as his colleague Mr.Amurudeen are similarly placed and once the Tribunal had found that as per rule 4(a) of the Tamil Nadu State and Subordinate Services Rules, a panel prepared for a particular year is valid only for one year and that those who have been qualified for promotion prior to the crucial date have to be considered for inclusion in the next year, the petitioner who had successfully completed the departmental test for promotion to the post of Assistant in the year 1980, ought to have been considered for promotion as Assistant and consequently is entitled to further promotion as Superintendent, on par with that of Mr.Amurudeen.

20. In this context, learned counsel for the petitioner submitted that the rank of petitioner in TNPSC list is 272 and when he had passed the departmental test in November, 1980 i.e., before the crucial date for preparation of panel for each year i.e. 15th March of every year, the petitioner ought to have been promoted as Assistant in the year 1981 itself on par with that of his junior and consequently entitled for promotion as done in the case of Mr.Amurudeen, as per the orders of the Tribunal.

21. He further added that when a decision of the Court/Tribunal is rendered with regard to the applicability of statutory provisions, to a class of persons i.e. the effect of the panels prepared to the post of Assistants, the said decision is equally applicable to all the persons similarly placed and that there is no need to file a separate writ petition. According to the learned counsel for the petitioner the decision rendered on the subject matter of preparation of panels and its effect on the members of service has attained finality and therefore the decision of the Tribunal made in the case of Mr.Amurudeen is a judgement 'in rem' and the rejection of the petitioner's case stating that the judgement would be applicable only to the said individual is erroneous.

22. Relying on the decision of the Tribunal rendered in the case of Mr.Amrudeen, learned counsel for the petitioner further submitted that the reasons stated in the counter affidavit are not found in the impugned order and therefore the same should not be considered for the purpose of adjudication of this writ petition. He further submitted that in view of the well accepted legal position that the respondent has to either succeed or fall on the basis of the impugned orders, the objections raised in the counter affidavit have to be rejected in limine.

23. Per contra, Mr.S.Gopinathan, learned Additional Government Pleader submitted that the petitioner qualified himself for the post of Assistant only in November, 1980. He was not one of the persons promoted as Assistants by the concerned unit officers between 27.3.1972 and 24.7.1979, as per the procedure prevalent prior to the implementation of one unit system based on the guidelines issued by the Government.

24. He further submitted that those who were promoted as Assistants by the unit officers in exercise of the the powers vested with them, were regularised retrospectively by the Government in G.O.Ms.No.4(D) Public Works Department dated 21.5.1991 and that they were placed in higher positions in the seniority list of Assistants on the basis of date of passing of the departmental tests, prescribed for the post of Assistant and since the petitioner had passed the tests belatedly in November, 1980, his case did not come under the zone of consideration, along with others promoted as Assistants by the then unit officers.

25. He further submitted that seniority of the above said persons protected by the judgement in O.A.No.5818 of 1993 (CA No.417/95 and RA 6/96) and therefore the seniority of the said Assistants cannot be disturbed by belated acquisition of qualifications. As the petitioner had passed the departmental test in November, 1980 and in view of the procedure followed by the department in the matter of promotion i.e., from the panels drawn for the years 1972 to 1979, learned counsel for the respondents further submitted that the petitioner is entitled to be considered for promotion to the post of Assistants, when the panel was drawn in the year 1982-83. He further submitted that the claim of the petitioner to promote him retrospectively would tantamount to revision of ranking in the seniority of Assistants who were promoted earlier from among the TNPSC allottees for the years 1973, 1974, 1975 and 1976.

26. Learned counsel for the respondents further submitted that the judgement rendered by the Tribunal in O.A.No.7331 of 2001 would be applicable only in the case of the applicant therein before the Tribunal and it is not applicable to the case of the petitioner. For the above said reasons, he prayed for dismissal of the writ petition.

27. Before adverting to the facts of the case, this court deems it fit to examine as to whether the judgement of the Tribunal rendered in O.A.No.7331 of 2001 dated 7.5.2002 is a judgement "in rem" or a judgement "in personam" and therefore it is necessary to explain the distinction between them. Historically the term judgement "in rem" was used in Roman law in connection with actio but not in connection with "jus actio in personam". The effect of "actio in rem" was to conclude against all mankind, but the effect of "actio in personam" was to conclude with regard to the individual only. After the Roman forms of procedure had passed away, the term "in rem" survived to express the effect of an action "in rem" and gradually, it came to import "generally".

28. The judgements "in rem" signified as judgements which are good against all mankind and "judgements in personam" signified the judgements which are good only against the individuals who are parties to them and their privies. The point adjudicated upon in a "judgement in rem" is always as to the status of the "res" and is conclusive against the world as to that status, whereas in a judgement "in personam", the point whatever it may be, which is adjudicated upon, not being as to the status of the "res" is conclusive only between the parties or privies. Reference can be made to Firm of Radhakrishnan Vs. Gangabai, 1928 S 121, Ballantyne vs. Mackinson 1896 2 QB 455.

29. Courts have held that, "Judgement in rem", operates on a thing or status rather than against the person and binds all persons to the extent of their interest in the thing, whether or not they were parties to the proceedings. The judgement "in rem",as distinguished from judgement "in personam" is an adjudication of some particular thing or subject matter, which is the subject of controversy, by a competent Tribunal, and having the binding effect of all persons having interests, whether or not joined as parties to the proceedings, in so far as their interests in the "res" are concerned. In determining whether a judgement is "in rem", the effect of the judgement is to be considered and it is tested by matters of substance, rather than by measure of any particular draft or form.

29. A final judgement on the merits in a particular proceeding, "in rem" is an absolute bar to subsequent proceedings founded on the same facts and a judgement "in rem" may be pleaded as a bar to another action of the same subject matter, if its effect is to merge a distinct cause of action, but not otherwise. The judgement "in rem" operates as a bar or estoppel only to the "res" or matter within the jurisdiction of the court and does not prevent a subsequent action for personal relief, which could not be obtained in the first action. Thus with respect to the "res or status", a "judgement in rem" has to be conclusive and binding upon "all the world" that is, on all the persons, who may have or claim any right or interest in the subject matter of litigation, whether or not, they were parties to or participants in the action, atleast to the extent, that it adjudicates or establishes a status, title or res, constituting the subject matter of the action, a "judgement in rem" will operate as a estoppel, in a subsequent action in respect of the points or questions adjudicated.

30. In the above legal backdrop, it is necessary to examine whether the judgement rendered in O.A.No.7331 of 2001 dated 7.5.2002 by the Tamilnadu Administrative Tribunal, is confined only the parties thereto or it binds all persons having interests in the "res", the subject matter of controversy in the Original Application.

31. In the above Original Application, the applicant Mr.Amurudeen became qualified for promotion in 1980 itself, as he had passed the District Office Manual Test in November,1974 and Account Test in May 1979. But promotion to the post of Assistant was not given to him in 1980. On the other hand, one Mr.Nizamuddin, his junior was given promotion, on the ground that he had passed the District Office Test in November, 1974 and Account Test in May 1974, respectively. Therefore, the applicant therein, sent reminders to the respondents on various dates to promote him on par with his junior Mr.Nizamudeen. On 31.7.2001, the Engineer in Chief and the Chief Engineer (General) Public Works Department, Chennai-5 rejected the representation of Mr.Amurudeen. Like the petitioner in the present writ petition, the applicant in the above Original Application was also selected by the Tamil Nadu Public Service Commission in the same year, 1973 and joined as Junior Assistant in 1973. The rank assigned by the Service Commission in respect of the said Mr.Amurudeen was 109, whereas the petitioner was placed at No.272.

32. The contention of the applicant Mr.Amurudeen, in the Original Application No.7331 of 2001 was that he had passed the Account Test in May 1979, District Office Manual Test in November, 1974 and Mr.Nizamudin and Mr.Palanivel, were juniors to him, as per the rank assigned by the Public Service Commission and that having regard to the date of acquisition of passing the Tests, they were included in the panel of the year 1976. It is the contention of the applicant therein that the panel for the year 1976 lapsed on the expiry of one year and therefore, if a fresh panel had been prepared, the applicant would have been included and consequently promoted as Assistant and Superintendent along with Mr.Nizamuddin. The subject matter of the controversy also included as to whether the panel prepared for the year upto 1979 can be operated for giving promotion to the post of Assistants, after expiry of one year, from the date of empanelment and whether the individuals who qualified before the crucial date prescribed under the statutory rules are eligible to be considered along with others, who had passed the departmental tests earlier. The Tribunal on consideration of the statutory provision rule 4(a) of the Tamil Nadu State Subordinate Service Rules and Rule 30 (B) of the Tamil Nadu Ministerial service Rules and the submissions of the parties, at paragraphs 12 and 13 of the judgements held as follows:

"12.On the face of it, the proposition is wrong. As per Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules, if a panel is prepared, it shall be in force for one year only and shall lapses at the end of the year. There is a reference to the Memo issued in No.55935/112/74-1, dated 23.5.74. As per this memo, it is stated that the panel should be drawn up as on first April of every year containing the names of those who pass the tests in the succeeding year shall have their seniority in that year only. It is further stated that while considering promotion, earlier list should be first exhausted before going to the list of next year. Though this memo has not been produced, as we have seen already that as per Rule 4(a), the panel has to lapse, if it was not implemented. But, here the reason given is after the implementation of one unit system in Public Works Department in 1972, the panels were prepared for the post of Assistant for the year 1973 to 1979 and the first panel of 1973 was effected on 24.7.1979. The panel for 1974 was effected from 6.7.1979 and the panel for 1975 was effected on 25.9.1979 and the panel for 1976 has effected on 19.3.1991. There was no exemption granted to the Rule 4(a) and when Rule 4(a) operates, any administrative instruction cannot over ride it. It is stated that General Rule 4(a) and Special Rules 30 (b) of Tamil Nadu Ministerial Service and the Government PWD instructions issued in Memo dated 23.5.1974 have been followed scrupulously. This is not proper. Rule 4(a) states that the panel prepared for a particular year has to lapse at the end of the year. But, the Memo dated 23.5.1974 is against this. Therefore, the statement that the rules have been followed scrupulously is not acceptable.

13. As we have seen already, the petitioner became qualified for promotion in 1990 and his name ought to have been included in the panel for the year 1980. But, he has been given promotion only in 1984. At the end of the impugned order it is stated that the promotions were given as per PWD Memo No.55935/M2/74-1, dated 23.5.1974. Though the text of the said Memo has not been produced, we have already seen that this memo, instructing to keep a panel alive for more than one year is contrary to Rule 4(a) of the General Rules. Hence, it cannot be valid."

33. While examining the facts of the above Original Application 7331/2001 with reference to the statutory provisions and the promotion made to the post of Assistant from the panels drawn from the year between 1973 to 1979, the Tribunal has considered a decision of the Supreme Court, reported in AIR 1970 SC 2178 Ganguram vs. Union of India which reads as follows:

"It is quite clear that para 49 does not confer any right to immediate promotion on those Grade II clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is that one hurdle is removed from their way and they became eligible for being considered for promotion to Grade-I. This promotion is governed by the test of seniority-cum-suitability. All those who qualify for promotion are treated at par for this purpose and they are grouped together as constituting one class. The fact that one person has qualified earlier in point of time does not by itself clothe him with a preferential claim to promotion as against those who qualify later."

34. Having found that the respondents have failed to draw panels for each year and considering the legal right of the persons who have passed the departmental tests before the crucial date prescribed as per the rules, the Tribunal had directed the respondents therein, to include the name of the said Mr.Amurudeen, in the panel for the year 1988 and 1989 for promotion to the post of Superintendent, as published by Principal Chief Engineer on 21.7.1988, by directing inclusion of his name at Sl.No.128 (a) above the name of Mr.Nizamuddin and below Mr.S.A.Sebastian. It is an admitted position that the judgement rendered in O.A.No.7331 of 2001 has been implicitly complied with by the government and that the applicant therein was also promoted as Superintendent, subject to the revision of seniority. The findings with regard to the procedure adopted by the respondents therein, in promoting Assistants form the panels drawn for previous years, against the statutory provisions, viz., Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules and Rule 30(B) of the Special Rules of the Tamil Nadu Ministerial service Rules, has not been challenged by way of appeal and that the said decision has become final. The facts and objections raised bythe respondents in the Original Application No.7331 of 2001 and in the present writ petition are similar. It is also evident from the discussion at paragraphs 12 and 13 of the judgement. While the Tribunal has decided the scope and applicability of the rules, with respect to the panels prepared between 1972-1973, I do not find any valid reasons as to how the respondent in this writ petition could contend that the judgement rendered in the Original Application is only a judgement "in personam". Therefore in my considered opinion the judgement would be applicable not only to the parties to the original application, but it is applicable to all the persons similarly placed. The only reason assigned by the respondents in rejecting the case of the petitioner is not accepted. No other valid reasons have been assigned in the impugned order, distinguishing the case of the petitioner with that of the applicant in O.A.No.7331 of 2001. As rightly contended by the learned counsel for the petitioner, once the respondents have decided to promote Mr.Amurudeen, as Superintendent retrospectively, fixing his seniority, denial of the benefit of judgement to the case of the petitioner would be discriminatory and violative of Article 14 of the Constitution of India.

35. It is well settled legal position that when an order is passed by a administrative authority, the same should be supported by the reasons contained therein. The said statutory authority cannot be permitted to support his order on the basis of statements made to the counter affidavit. Reliance can be made to the decision of the Supreme Court in Mohinder Singh Gill v. Chief Election Commr., reported in 1978 (1) SCC 405, and at paragraph 8 the Apex Court held as follows:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. In Commr., of Polie, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16:

"Public orders, publicity made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

36. The above position of law has been restated in Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chennai reported in 2005 (7) SCC 627, and at paragraph 24 of the judgement, the Supreme Court held as follows:

"When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records."

37. In the light of the decisions of the Supreme Court and having regard to the decision taken by the Government, in implementing the orders of the Tribunal passed in O.A.No.7331 of 2001 dated 17.5.2002, it is not open to the respondents to advance their arguments once again, over the same issue of seniority in the post of Assistants. Excepting the challenge with regard to applicability of judgement in O.A.No.7331 of 2001, no other reasons have been assigned in the impugned order and therefore other objections raised in the form of counter affidavit, cannot be legally countenanced. In the result, the impugned order is set aside. The respondents are directed to promote the petitioner as Assistant from 1981 and consequently promote him to the post of Superintendent with effect from 16.6.2000 and extend all monetary and service benefits retrospectively.

38. With the above directions, the writ petition is allowed. No costs.

29.8.2008 Index : Yes vk To

1.The Engineer in Chief (WRO) and the Chief Engineer (General) PWD, Chepauk, Chennai-5.

2.The Secretary to Government, Public Works Department, Chennai-9.

S. MANIKUMAR, J.

vk Pre-delivery order in W.P.No.3002 of 2007 29.8.2008