IN 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