K. Venkataswami, J.
1. All the petitioners in these writ petitions have brought before this Court a common grievance to be judicially solved and decided. All the petitioners are in the service of the first respondent, Housing Board, hereinafter called 'the Board'. The prayer in all the writ petitions is for the issue of a Writ of Mandamus, directing the respondents 1 and 2 to promote the petitioners as Assistant Executive Engineers in the service of the first respondent from 23-12-1976 and consequently to give all the petitioners all the benefits, such as seniority, arrears of pay, fixation of scales etc., as if the petitioners had been promoted to the post of the Assistant Executive Engineers on 23-12-1976.
2. The first respondent-Board was established under the Tamil Nadu State Housing Board Act, 1961. The first respondent, by virtue of the power vested in it under the said Act, had framed the Tamil Nadu State Housing Board Service Regulations, 1969, which was given retrospective effect from 22-4-1961. All the petitioners belong to State Housing Board Engineering Subordinate Service. They belong to Supervisor/category of posts having diploma in Engineering. The next avenue of promotion for the petitioners is as Assistant Engineers which came under the State Housing Board Engineering Officers Service. The method of recruitment to the State Housing Board Engineering Service is either by direct recruitment or by promotion from other categories of service. To get promotion as Assistant Engineers, the petitioners who are all holding diploma in engineering will have to put in a minimum service of 10 years as Supervisors. Adshs el nis nadsh zoasbnhk nw fshlnil eligible to be promoted as Assistant Engineers just like the petitioners and that category also comes under State Housing Board Subordinate Service. That category of post is designated as Junior Engineers. The respondents 3 and 4 in all the writ petitions belong to category of Junior Engineers. For Junior Engineers to be promoted as Assistant Engineers, they should have put in a minimum service of five years as Junior Engineers. Thus the grievance of the petitioners is that while all the petitioners had completed 10 years of service as Supervisors between July, 1972 to March, 1975, the first respondent promoted the respondents 3 and 4 as Assistant Engineers on 23-12-76, without considering the claims of the petitioners and notwithstanding the fact that respondents 3 and 4 had completed the qualifying service of 5 years as Junior Engineers long subsequent to the petitioners.
3. At this juncture, one relevant factor to be noted is that the Board re-designated the posts of Supervisors as Junior Engineers and that of the Junior Engineers as Assistant Engineers and the promotion post of Assistant Engineers as Assistant Executive Engineers. However, the change has not been carried out even to day in the statutory regulations. Therefore, the old designations are referred to in this order.
4. Certain earlier proceedings in Court between the employees of the Board and the Board have to be noted to appreciate the rival contentions. It is seen from the records that the first respondent promoted Junior Engineers (Degree holders in Engineering) as Assistant Engineers during the year 1971 and 1972 relaxing the qualifying service in favour of the Junior Engineers. That was challenged by the supervisors (Engineering Diploma Holders) by filing W.P. Nos. 1367, 1389 and 1448/73 (S. Swaminathan, V. Balasubramaniam and S. Surli) Ismail as he then was, by a common order, allowed the writ petitions holding that the Board was not right in relaxing the relevant regulations in favour of the Junior Engineers and also not right in not considering the claims of the petitioners in these writ petitions. The Junior Engineers who were promoted, took the matter by way of writ appeals and the writ appeals came up before the Honourable the Chief Justice and Natarajan, J., and the Division Bench took the view that the regulations having not been published will not have statutory force and therefore any violation or non-compliance of such regulations cannot be relied on to get relief in proceedings under Article 226 of the Constitution of India. That matter is now, it is stated pending in the Supreme Court.
5. In the light of the observations of the Division Bench in the writ appeals, the Board got the regulations published in the Gazette on 14-5-1975. Therefore, the regulations now are statutory in character.
6. As the first respondent attempted to promote Junior Engineers as Assistant Engineers disregarding the statutory regulations, one Ayyappan who was a supervisor like the petitioners filed W.P. No. 6524 of 1975 (P. Ayyappan v. Tamil Nadu Housing Board), for the issue of a Writ of Mandamus directing the Board to forbear from promoting the respondents 2 to 17 in that writ petition and for the consequential directions to make promotion to the posts of Assistant Engineers strictly in accordance with the statutory regulations. That writ petition was disposed of by a Division Bench. S. Natarajan, J., speaking for the Division Bench held that the apprehensions are imaginary and the writ petition has been filed prematurely. It was also observed by the learned Judge:
It is wholly unnecessary to issue any direction to the first respondent to respect its own regulations which have been given statutory force by publication in the Gazette.
7. One other decision needs reference, Ramanujam, J., in W.P. No. 6385/83 M.C. Vaikundam v. Tamil Nadu Housing Board and Ors., had an occasion to consider this matter. The writ petition before the learned Judge was for the issue of a writ of Mandamus directing the first respondent Board therein to promote the petitioner as Assistant Engineer in the place of respondents 2 to 28. The petitioner in that case also was a Supervisor. Respondents 2 to 28 in that petition were Junior Engineers holding Engineering Degree. The learned Judge, after noticing the fact that subsequent to the publication of the regulations, the first respondent will have to strictly follow the same has dismissed the writ petition holding that the Board must strictly observe the regulations in future promotions.
8. After the publication of the regulations as stated above, the first respondent again promoted certain Junior Engineers as Assistant Engineers by proceedings dated 23-12-1976. The first respondent promoted respondents 3 and 4 along with a few others as Assistant Engineers, by proceedings dated 23-12-1976, one Rajagopal, who was supervisor like the petitioners aggrieved by the said promotion filed W.P. No. 473/77, C.R. Rajagopal v. The Tamil Nadu Housing Board, Madras, that petition came up for final disposal before Nainar Sundaram, J. The learned Judge by an order dated 17-7-1981 held that the petitioner in that writ petition having been promoted pending disposal of the writ petition, must be deemed to have been promoted on 23-12-1976 and all other attendant benefits must be given to him. The first respondent accepted the judgment of Nainar Sundaram, J., in W.P. No. 473/77 and in fact promoted the said Rajagopal with effect from 23-12-1976 and also granted arrears of pay. This order was passed by the first respondent on 2-1-82. The first respondent while promoting Rajagopal as Assistant Engineer with effect from 23-12-1976 also promoted a few other Supervisors who were seniors to the said Rajagopal giving similar benefits to those supervisors. On the basis of the judgment of Nainar Sundaram, J., in W.P. No. 463/77, and the subsequent orders passed by the first respondent giving effect to the order of Nainar Sundaram, J., the present writ petition came to be filed.
9. In the counter affidavit filed by the first respondent, the defence taken was that the related regulations fix 3 : 1 as ratio for promoting Junior Engineers, and Supervisors to the category of Assistant Engineers. Therefore, the Board has to observe this ratio and the petitioners will be promoted strictly in accordance with the said ratio. The other contention taken in the counter affidavit is that the petitions are liable to be dismissed for laches.
10. Learned Counsel appearing for the petitioners contended that in W.P. No. 1868 of 1977, K. Sabanayagam v. State of Tamil Nadu Housing Dept., V. Ramaswami, J., by an order dated 25-2-1980 has clearly held that the ratio 3 : 1 was published and included in the regulations on 8-6-77 and therefore, the same cannot be given retrospective effect. The ratio will have statutory force only subsequent to the publication and prospective in effect. According to the learned Counsel for the petitioners applying the principles laid down in W.P. No. 1868/77, the defence taken by the first respondent that the petitioners should be given promotion strictly in accordance with the ratio, cannot be sustained. It is common ground the petitioners have put in necessary qualifying service to be promoted long before as noted earlier the years 1972 and 1975. It is also common ground that respondents 3 and 4 have put in qualifying service to be promoted as Assistant Engineers only subsequent to the petitioners. Therefore, according to the learned Counsel for the petitioners, the promotion of respondents 3 and 4 as Assistant Engineers without considering the claim of the petitioners, is bad. However, they are not interested in setting aside the promotion of respondents 3 and 4. What all the petitioners want is that they must be promoted and placed above the respondents 3 and 4 with effect from 23-12-1976, with other benefits.
11. The learned Counsel for the first respondent Mr. K. Doraiswami, contended that the ratio 3 : 1 though came to be published only on 8-6-1977 was enforced even prior to that by way of administrative instructions and therefore, the Board is bound to observe the ratio. Similar contention was negatived by V. Ramaswami, 3., in W.P. No. 1868/77. Therefore, the same cannot be countenanced. Further, it is the contention of the learned Counsel for the first respondent that the petitions are liable to be dismissed on the ground of laches. It is to be noted that at every stage the supervisors were agitating the matter and as a matter of fact, the cases are pending in the Supreme Court. I am unable to accept the argument that the writ petitions are liable to be dismissed on the ground of laches.
12. Mr. R. Gandhi, learned Counsel appearing for respondents 3 and 4 in all the writ petitions contended that as the matters are pending in the Supreme Court and the appointment of respondents 3 and 4 cannot be disturbed.
13. Taking all the factors into account and by applying the ratio in the judgments of Ramanujam, J., in W.P. No. 6385 of 1973, Nainar Sundaram, J., in W.P. No. 473/ 77 and V. Ramaswami, J., in W.P. No. 1868/77, I am of the view that the petitioners are entitled to some relief at present if not as prayed for in the writ petitions. It is to be noted that the promotion to Assistant Engineer is a selection post. That means, the promotion to the post of Assistant Engineer shall be made on grounds of merit and ability, seniority being considered only where the merit and ability are approximately equal. Taking this into account, a mandamus will issue to the first respondent to consider the petitioners for promotion and those considered eligible for promotion as well as those promoted pending these writ petitions must be deemed to have been promoted from 23-12-1976 for all purposes except for the purposes of fixing seniority and arrears of salary. The question relating to seniority as well as arrears of pay is left open to be decided later by the first respondent in the light of the decision of the Supreme Court in the cases pending before it.
14. The first respondent will take up the matter and pass orders in the light of the direction given in these writ petitions within 3 months from the date of receipt of this order. However, there will be no order as to costs.