JUDGMENT T. Chandraskhara Menon, J. 1. The petitioners are working as First Grade Overseers in the Civil Wing of the Kerala State Electricity Board, the first respondent in the petition. Recruitment of the post of Overseers and Junior Engineers to the Board are governed by the Kerala State Engineering Subordinate Service Rules as they have been adopted by the Board as Regulations framed under the Electricity (Supply) Act. For appointment to the post of Second Grade Overseers the provision is that 75 per cent of the posts should be filled by direct recruitment from the open market subject to qualification prescribed, and 25 per cent were to be filled up by promoting Tracers already in service who possessed the requisite qualifications. The qualification for promotion was of a lower standard than that for direct recruitment. 2. By a notification dated 26th July 1962 the Board invited applications for 100 posts of 2nd Grade Overseers. Before the selection as per this notification was made, a second notification was issued on 21st June 1963 for 166 posts inclusive of 100 posts already notified. In the second notification it had been specified that those who had applied as per the first notification need not apply again because those applications would also be considered along with the applications received in pursuance of second notification. It is how the petitioners were selected along with others. They were included in the 'advice list' issued by the Board consisting of 176 selected people. Only 146 out of these joined service. According to the petitioners, as they joined as per this advice their seniority has to be reckoned from the date of advice, namely 1st April 1965. 3. Respondents 3 to 22 were persons who were promoted by order dated 23rd April 1965 from the post of Tracers in the services of the Board to the post of Second Grade Overseers. According to the petitioners, most of them had commenced service in September 1963 or thereafter as Tracers so that when the vacancies to which the petitioners had been appointed arose, these persons were not in service. It is also alleged that those who had been in service had not acquired the necessary qualification for promotion as Second Grade Overseers when the notifications pursuant to which petitioners were appointed were issued. It is also alleged that those who had been in service had not acquired the necessary qualification for promotion as Second Grade Overseers when the notifications pursuant to which petitioners were appointed were issued. The petitioners' allegation is that these respondents had no claim for promotion in their favour at the time when appointments to Second Grade Overseers posts by direct recruitment were resorted to by direct recruitment in 1962 and 1963. 4. The petitioners' case is that in the seniority list of Second Grade Overseers the petitioners and other direct recruits appointed with them were rightly shown as seniors to respondents 3 to 22. On that basis the petitioners had been promoted as First Grade Overseers. 5. Respondents 3, 11, 13, 15, 16 and 18 jointly filed a writ petition as O.P. No. 4784 of 1969 before this court claiming that at the time of appointing 146 direct recruits, the ratio of 3:1 should have been applied; that is, though they were appointed only on 23rd April 1965, their seniority should be reckoned along with the direct recruits taken in by advice list of 1st April 1965 and fitted into the combined list by ranking one promo tee after every 3 direct recruits. The petitioners got themselves impleaded in the original petition as additional respondents and opposed the prayer. It would appear that when the original petition was pending the Board acting through the Secretary practically upheld the claim of the petitioners in O.P. No. 4784 of 1969. The petitioners alleged that on coming to know of this they made representations to the Board, objecting to this course. Ext. P-4 is said to be a true copy of the second petitioner's representation. No orders have been passed on that. 6. I would extract in full from the original petition what the petitioners allege to have happened at the time of hearing of O.P. No. 4784 of 1969. ''When O.P. No. 4784 of 1969 came up for hearing on 29th October 1971, it was represented on behalf of the petitioners therein that all that was necessary was to direct the enforcement of the Secretary's note. Persons who had been originally arrayed as respondents in the said case had no objection to this course, as they were only to be benefited by the note. Persons who had been originally arrayed as respondents in the said case had no objection to this course, as they were only to be benefited by the note. On behalf of the petitioners herein, who were additional respondents in O.P. No. 4784 of 1969, it was however pointed out that the Note was illegal and invalid, that representations had already been filed against it and that the petitioners were awaiting their outcome for further steps in the matter. In the judgment dated 29th October 1971, true copy produced herewith and marked as Ext. P-5, this Honourable Court noted this contention and left open the question relating to the validity of the Note." The Chief Engineer by his proceedings dated 19th January 1972 gave effect to the Secretary's note referred to above and fresh combined seniority list of the 146 direct recruits and 20 promotees was published. Ext. P-6 and Ext. P-6 (a) are the copies of the said proceedings and relevant extract of the list respectively. By allotting every fourth place to respondents 3 to 22, the petitioners have become juniors to them. Therefore this original petition has been filed for quashing the Secretary's Note, Ext. P-3, Ext. P-6 the Chief Engineer's proceedings and the list Ext. P-6(a). 7. The main contentions taken up by the petitioners are: (i) The impugned proceedings violate rule 27 of the Kerala State and Subordinate Service Rules, which has been adopted by the Board as its regulation. Seniority of a person in a cadre has to be determined with reference to the date of first appointment to the cadre. Where appointments are made on the advice of the Board, the relevant date is the date of advice. Petitioners' date of appointment has therefore to be taken as 1st April 1965 whereas respondents 3 to 22 were promoted as Second Grade Overseers only on 23rd April 1965. Therefore petitioners are seniors to respondents 3 to 22. (ii) Respondents 3 to 22 were either not in service as Tracers or were not qualified to be promoted into 25 per cent quota fixed for Tracers when the vacancies to which petitioners were advised arose or at the time steps were taken to fill up vacancies by direct recruitment. Rule 28(ii)(bb) of the K.S.S.R. stipulates that only person qualified at the time vacancies occasioned could be promoted to such posts. Rule 28(ii)(bb) of the K.S.S.R. stipulates that only person qualified at the time vacancies occasioned could be promoted to such posts. (iii) It is alleged that the method adopted in Exts. P-3 and P-6 has not been adopted earlier or taken in the matter of recruitment of Second Grade Overseers or other categories of executive employees. It is said that never before has the ranking given to direct recruits (on the basis of date of advice) been disturbed to accommodate persons subsequently promoted, on the plea that the ratio has to be maintained, irrespective of qualification, at the time of occurrence of vacancies. 8. In the counter-affidavits filed by the Board, the first respondent and some of the promotes-contesting respondents, these contentions are sought to be met in the following manner:- (a) The decision in O.P. No. 4784 of 1969 is res judicata in the matter. The judgment Ext. P-5 in the same is binding on the petitioners and they are estopped from questioning the same and raising the present contentions. (b) This original petition is vitiated by laches on the part of the petitioners and also is barred by limitation. (c) As per the special rules, 59 persons were entitled to be promoted during the relevant period on the basis of ratio 3:1 between direct recruits and promotees. Before the petitioners were actually appointed the Tracers were promoted. Persons in the advice list were not entitled to be appointed before the date of advice. (d) Rule 28(bb) of the K.S.S.R. cannot prevail against special rules and it is applicable only to persons who are in service on the date of occurrence of vacancy. (e) Rule 27 which makes the date of advice in respect of a direct recruit the date for reckoning seniority applies only inter se between direct recruits and not between direct recruits as against promotees. 9. I will deal with these questions one by one. The contesting respondents strongly pressed before me that the decision in O. P. No. 4784 of 1969 bars the petitioners from raising the present contentions. The petitioners were additional respondents in that original petition. As stated earlier when that original petition came up for hearing the claim of the petitioners therein were really accepted by the first respondent-Board. The Board, through its Secretary had issued a note to the Chief Engineer, Ext. The petitioners were additional respondents in that original petition. As stated earlier when that original petition came up for hearing the claim of the petitioners therein were really accepted by the first respondent-Board. The Board, through its Secretary had issued a note to the Chief Engineer, Ext. P-3 dated 2nd June 1971, which would indicate that the point raised by the petitioners in the earlier O.P. has been conceded by the Board. This acceptance by the Board, was subsequent to the filling of the said original petition. In the circumstances, the court directed the implementation of that note by the Board. The present petitioners who were additional respondents therein had brought to the notice of the court that they have challenged the validity of the principles laid down in the note. As against them, the court did not decide the question of validity of the said principles as the court said that the same will be disposed of on its own merits. The court was under the impression that a writ petition was pending in the matter. Really at that time no writ petition was filed by the petitioners. As extracted earlier in this writ petition, the present petitioners had stated that what they told the court was that they had filed representations before the Board and that they were awaiting the outcome for further steps in the matter. This averment as such, is not controverted by the respondents. Therefore, there was no decision on the merits in the matter. The effect of the court's order in the earlier instance in O.P. No. 4784 of 1969 was to really leave the matter open as far as the petitioners are concerned. It is no doubt true that the principles of res judicata are applicable to writ proceedings. This has now been well established by the Supreme Court decisions in the matter-See Joseph Pothen v. State of Kerala, A.I.R. 1965 S.C. 1514 and Devilal Modi v. Salestax Officer, A.I.R. 1965 S.C. 1150. In the second case Chief Justice Gajendragadkar observed: "Though the courts dealing with the question of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration." 10. Rule of constructive res judicata are also applicable in writ proceedings. In the second Supreme Court decision referred to above, Chief Justice Gajendragadkar had applied in that case the principles of constructive res judicata. However, the question of res judicata comes in only when there has been a final decision on the question involved either expressly or constructively. When the effect of the earlier decision is to leave open a question as regards a particular party, the question of res judicata will not arise when that party raises the same question in another case. A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it. This definition given by Spencer Bower in his book "Doctrine of res judicata'' involves the existence of two distinct type of non-finality; one, in which the judicial decision on the face of it is imperfect, provisional, conditional, indefinite, or ambiguous, and the other in which the judicial decision, though ex facie purporting to be final, is, by the law applicable, liable to be afterwards rescinded, re-opened, or varied by the originally adjudicating Tribunal. 11. In the instant case, Justice Isaac pointed out that the additional respondents have questioned the validity of the principles laid down in the Secretary's note, and that will be disposed of on its own merits and the pendency of any such writ petition would not affect the implementation of the Secretary's note. It means that the learned Judge had not gone into the contentions of the additional respondents in that case and adjudicated on the same. He has only left that question open. Therefore, in the circumstances, the decision in the earlier original petition could not be said to bar the present original petition. Laches: II. It means that the learned Judge had not gone into the contentions of the additional respondents in that case and adjudicated on the same. He has only left that question open. Therefore, in the circumstances, the decision in the earlier original petition could not be said to bar the present original petition. Laches: II. It is contended both by the first respondent and the other contesting respondents that the petitioners are not entitled to get the relief because the original petition is vitiated by laches on their part. It is said to be barred by limitation also. Here also I cannot agree with the respondents' contentions. The representations made by the petitioners before the Board was pending at the time when the earlier writ petition was disposed of. These representations have not been disposed of even now. Therefore, it is only when the Chief Engineer implemented the Secretary's note, Ext. P-3 by his proceedings, Ext. P-6 the petitioners were really affected. The new seniority list, Ext. P-6 (a) pushed down the petitioners to a lower rank. Immediately after Ext. P-6 and P-6 (a) the petitioners have approached this court by filing the present original petition. The power of the High Court under Article 226 is a discretionary one. In the exercise of this discretion, the conduct of the applicant is, one of the factors to be taken into consideration. Delay in filing the writ petition is one of those factors which arises for the consideration of the court in this context. Where an application is delayed, the applicant owes an obligation to provide adequate explanation of the same. A mere delay short of laches on the part of the applicant cannot be considered as a bar to the entertainment of a writ petition or granting relief thereon. Laches is such negligence or omission to assert a right, as taken in conjunction with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity: See Gurnam Singh v. State of Rajasthan, 1971 Serv. L.R. 799 (S.C.). In the instant case there has been no such laches. Seniority on the basis of date of advice or date of appointment: 12. L.R. 799 (S.C.). In the instant case there has been no such laches. Seniority on the basis of date of advice or date of appointment: 12. Under rule 27 of the K.S.S.R. seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. Notwithstanding this, seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall be determined by the date of first effective advice made for his appointment to such class, category or grade. When two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. The date of effective advice means, the date of the letter of the Commission on the basis of which the candidate was appointed. These are provided in rule 27, which is applicable to service under the Board also. If that be so, the petitioners should be entitled to seniority over respondents 3 to 22 as the date of their advice is prior to the appointment of these respondents. The contention of the respondents is that these respondents were entitled to be promoted during the relevant period on the basis of the ratio 3:1 between the direct recruits and promotees. It might be noted, however, that the advice of 176 persons out of which only 146 persons joined service has not been questioned by any one. By their advice, ordinarily by the application of rule 27 they should get seniority over subsequently appointed persons. If the ratio as per the service rules had not been followed it was incumbent upon the affected parties to question the advice itself within a reasonable time. I do not find any conflict between the special rules and the general rules in rule 27. Nor am I inclined to accept Mr. Velayudhan Nair's contention that the provision in rule 27, that the seniority of a person appointed to a class, category or grade, shall be determined by the date of first effective advice made for his appointment can apply only inter se among direct recruits and not between a direct recruit and a promotee. Nor am I inclined to accept Mr. Velayudhan Nair's contention that the provision in rule 27, that the seniority of a person appointed to a class, category or grade, shall be determined by the date of first effective advice made for his appointment can apply only inter se among direct recruits and not between a direct recruit and a promotee. The seniority is as between persons who are in the same class, category or grade and they will take in both direct recruits and promotees. Mr. Velayudhan Nair also stressed upon the definition of the phrase 'appointed to a service'; a person is said to be appointed to a service when in accordance with the K.S.S.R. or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof. However, clause (c) in rule 27 is by way of exception to clause (a) in the same rule. So that the seniority of a person appointed on the advice has to be determined by the date of first effective advice made for his appointment. 13. Moreover, it has been contended by the petitioners that respondents 3 to 22 were either not in service as Tracers or were not qualified to be promoted into 25 per cent quota fixed for Tracers when the vacancies to which the petitioners were advised arose or at the time when steps were taken to fill up the vacancies by direct recruitment. I am not here rendering any final opinion on this aspect in view of the fact that representations by the petitioners are pending before the Board. 14. I would therefore set aside Ext. P-6 and Ext. P-6 (a) and direct the Board to go into the question of seniority as between the petitioners and the respondents 3 to 22 afresh and decide the same in accordance with law. The O.P. is disposed of as above but in the circumstances of the case there will be no order as to costs.