Amended service rules cannot be applied retrospectively to affect vested rights of employees, as it violates constitutional guarantees.

ORDER :

N.Mala, J.

Both the writ petitions are filed challenging the impugned order dated 05.03.2021, reverting the petitioners from the post of Lab Technician Grade I to the post of Lab Technician Grade II.

2. The petitioners 1, 4 and 5 were appointed as Lab Technician Grade II on 18.02.2008, the petitioners 2 & 3 were appointed on 08.04.2008 and 04.04.2008 respectively. The petitioner in WP.No.9268 of 2021 was appointed during 2011. The petitioners were promoted to the post of Lab Technician Grade I on 30.01.2020 as per the seniority, by the 4^th respondent.

3. At the time of promotion, institution-wise seniority was followed as per Rule 4, Class III, Category I of Section 21 of the Tamil Nadu Medical Subordinate Service Rules . The petitioners were promoted on the basis of their seniority to the post of Lab Technician Grade I. While so, the 5^th respondent filed writ petition in WP.(MD).No.8916 of 2019, seeking adoption of state wide seniority instead of District/institution wise seniority. The Madurai bench of this Court by an order dated 12.04.2019, disposed of the writ petition by directing the official respondents to consider the representation of the 5^th respondent on merits. Subsequently, the 5^th respondent filed another writ petition in WP.(MD).No.3152 of 2020, challenging the promotion of the petitioners as well as others as Lab Technician Grade I, and for consequent direction to the respondents 1 to 7 to promote the eligible Lab Technician Grade II, on completion of their qualifying service of 10 years, in the respondent department as Lab Technician Grade I. During the pendency of the writ petition, this Court granted interim order of stay in WMP.No.2691/2020 dated 10.03.2020.

4. According to the petitioners, the state wise seniority was implemented vide GO.Ms.No.147 dated 18.03.2020, whereas the petitioners were promoted on 30.01.2020, based on the old rule that was in existence at the relevant point of time. The 4^th respondent without giving an opportunity of hearing to the petitioners passed the impugned order dated 05.03.2021, applying the amended rule dated 19.03.2020, with retrospective effect. The application of the amended rule, according to the petitioner's was against the settled position of law, that no rule or act could be given retrospective effect, unless it was specified in the said Act or rules. Hence, the petitioners were constrained to file the writ petitions for the aforesaid relief.

5. The 4^th respondent filed counter affidavit conceding to the prayer in the writ petitions. It is relevant to extract paragraph 10 of the counter affidavit :-

“10) With reference to the averment made in the grounds (i) to (vi) of the affidavit it is submitted that the post of Lab Technician Grade - I the concerned Head of the Institution was the appointing authority. As such, vacancy in the post of Lab Technician Grade - I in each institution is filed by concerned Head of the Institution which results in quicker promotions in certain institutions because of more number of vacancies. The feeder category for the post of Laboratory Technician Grade - I is Lab Technician Grade -II. The petitioners were promoted to the post of Lab Technician Grade I before the issuance of amendment G.O. to follow state wide seniority by the Government in G.O.Ms.No. 147 Health and Family Welfare (C2) Department dated 18.03.2020 and the first respondent herein vide letter ref.no: 18891/C2/2019-4, dated: 24.12.2019 have instructed to follow the existing rules for the post of Lab Technician Grade I till amendment were issued and petitioners joined duty before the issue of the G.O.Ms.No. 147 Health and Family Welfare (C2) Department dated 18.03.2020 and the promotion orders issued to the petitioners hold good. In order to obey the order dated: 10.03.2021 in WP (MD) No. 3152 of 020 and WMP No: 2691 of 2020 the Hon'ble Madurai Bench of Madras High court the petitioners were reverted in order dated 05.03.2021 vide ref.no: 30757/E3/1/2020 and the rules in