Judgment 1. This writ petition has been filed by Mr. M. Moizuddin seeking a prayer for issuance of a writ of certiorarified mandamus, to call for the impugned proceedings in No.4857/PD-A2/2010-2 dated 13.1.2011 issued by the first respondent, the Secretary, Tamil Nadu Public Service Commission, to quash the same with a direction to the respondents to give new placements of seniority to the petitioner in the post of Under Secretary. 2. Learned senior counsel for the petitioner, seeking interference with the impugned order, submitted that the petitioner, having been appointed as Junior Assistant in the office of first respondent on 26.8.81 on compassionate ground, was promoted as Assistant when he completed his probation successfully during the year 1984. In the meanwhile, he passed P.U.C., and also B.Com. Degree through correspondence course in 1985. Thereafter, while he was officiating as Assistant, he went on leave accepting a foreign job after getting due permission from the Government in G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93, on 8.10.93. In the meanwhile, the post of Assistant in the Tamil Nadu Public Service Commission was upgraded as Assistant Section Officer on the same lines of Tamil Nadu Secretariat Service by G.O.Ms.No.7, Personnel and Administrative Reforms (M) Department dated 4.1.96 stipulating that a person should have rendered six years of service in the post of Assistant Section Officer for promotion to the post of Section Officer. However, after completing three years of foreign service, he rejoined duty on 8.10.96 in the parent department. After the petitioner went abroad, the Government introduced G.O.Ms.No.173, Personnel and Administrative Reforms Department dated 28.3.96, giving retrospective effect from 12.8.94, stating that the period of service rendered abroad should be treated as a break in service. Since the petitioner was promoted as Assistant on 5.3.84 and on the date when he obtained permission from the Government to visit the foreign country to accept the foreign job, he had completed more than six years of service, therefore, he should have been included in the temporary panel of Section Officer for the year 1998-99. Adding further, it was stated that when the petitioner's juniors, who did not have the requisite qualification, were considered for inclusion, the name of the petitioner should have been included in the temporary panel of Section Officer drawn for the year 1998-99. Adding further, it was stated that when the petitioner's juniors, who did not have the requisite qualification, were considered for inclusion, the name of the petitioner should have been included in the temporary panel of Section Officer drawn for the year 1998-99. However, when there was some hesitation on the part of the respondents, the petitioner gave his representations. But they were rejected on the sole ground that he has not completed six years of service in the upgraded post of Assistant Section Officer as per the proceedings of the first respondent dated 28.7.2003 by citing the second respondent's letter No.18539/M/99-1, Personnel and Administrative Reforms (M) Department dated 24.5.1999 and Letter No.19552/M/2001 dated 31.10.2000 respectively. 3. Continuing his arguments, the learned senior counsel further stated that when the post of Assistant was upgraded as Assistant Section Officer on the same lines of Tamil Nadu Secretariat Service by G.O.Ms.No.7, Personnel and Administrative Reforms (M) Department dated 4.1.96, it goes without saying that if a person has rendered six years of service in the post of Assistant prior to the said date, he is entitled to be considered for inclusion in the seniority list of Section Officer. Since the counter affidavit filed by the respondents also admits the fact that the petitioner was promoted as Assistant on 5.3.84 and he was granted permission to go abroad from 8.10.93 to 7.10.96 for three years to take up employment in Saudi Arabia, the respondents, accepting the conditions mentioned in G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93 stating that the period of absence during employment abroad will be treated as extraordinary leave and such period of absence will not be construed as break in service, should not have excluded the three years period viz., from 8.10.93 to 7.10.96, which he had spent in Saudi Arabia with the permission of the respondents. Adding further, he has stated that the subsequent G.O.Ms.No.173, Personnel and Administrative Reforms Department dated 28.3.96 giving retrospective effect from 12.8.94, is nothing but taking away the accrued rights of the petitioner, which is not permissible in law. Adding further, he has stated that the subsequent G.O.Ms.No.173, Personnel and Administrative Reforms Department dated 28.3.96 giving retrospective effect from 12.8.94, is nothing but taking away the accrued rights of the petitioner, which is not permissible in law. Arguing further, he has stated that had this G.O.Ms.No.173, Personnel and Administrative Reforms Department dated 28.3.96 been introduced before he left for foreign job on 8.10.93 conveying the respondents' intention that the period of absence during employment abroad will be construed as break in service, the petitioner would not have ventured to go abroad. Since the petitioner was granted permission to accept the foreign job in Saudi Arabia without there being any impediment from the respondents, after allowing him to leave the department to accept the foreign job only for three years, it is not open to them to say that his period of absence from 8.10.93 to 7.10.96 will be construed as break in service. 4. Concluding his arguments, he has also stated that when the petitioner on an earlier occasion came to this Court by filing W.P.No.33841 of 2007 challenging only the non-inclusion of his name in the panel for promotion to the post of Section Officer, however, he has not invited any order, on advice, as he had withdrawn the writ petition. But the present writ petition is prosecuted on a different cause of action to include his name in the seniority list for the post of Under Secretary. Therefore, the withdrawal of his previous writ petition again cannot be construed by the respondents that it would stand as an embargo in prosecuting the present writ petition. On this basis, he prayed for allowing the prayer. 5. Learned counsel appearing for the first respondent, opposing the prayer made by the petitioner, submitted heavily before this Court that although G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93 states that the period of absence during employment abroad will be treated as extraordinary leave without pay and allowances, but such period of absence will not be construed as a break in service, the subsequent G.O.Ms.No.173, Personnel and Administrative Reforms Department dated 28.3.96 giving retrospective effect from 12.8.94 by the Government is clear and conspicuous to treat the period from 8.10.93 to 7.10.96, which the petitioner had spent abroad, as break in service. Therefore, admittedly, when the petitioner was promoted as Assistant on 5.3.84, on the date when he went abroad viz., on 8.10.93, if we apply the G.O.Ms.No.7 dated 4.1.96, after deducting the period from 8.10.93 to 7.10.96, the petitioner has not come within the zone of consideration for his inclusion in the present panel of Under Secretary, since six years service in the post of Assistant Section Officer has not been gained by the petitioner. Adding further, it was stated that the petitioner was also informed well in advance even before the introduction of the G.O.Ms.No.173 dated 28.3.96 that his employment in Saudi Arabia from 8.10.93 to 7.10.96 will be treated as break in service, but the petitioner has not even responded properly. Since he has taken the risk for exclusion of the said period of three years, he should not be allowed to say that he is entitled to get the benefit of the earlier G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93, as the subsequent G.O.Ms.No.173 dated 28.3.96 is squarely applicable to the case of the petitioner. Finally, it was also the case of the respondents that the present writ petition is hit by the principles of res judicata, for the simple reason that the petitioner had already come to this Court by filing W.P.No.33841 of 2007 and thereafter he withdrew the same without taking liberty from this Court. Therefore, the repeated writ petition filed by the petitioner should not be allowed to be prosecuted, as it is hit by the principles of res judicata. 6. This Court is unable to agree with either of the submissions made by the learned counsel for the first respondent. In fact, the prayer in the earlier W.P.No.33841 of 2007 shows that he came to this Court only challenging the impugned orders dated 26.6.2007 and 17.7.2007 issued by the respondents in refusing to include the name of the petitioner in the seniority list for the post of Section Officer. But the present writ petition is seeking totally a different prayer for inclusion of his name in the panel of Under Secretary. That apart, the earlier writ petition was allowed to be withdrawn. Therefore, I do not find any embargo, as canvassed by the learned counsel for the first respondent, to apply the principles of res judicata against the present prayer. Hence, the said contention is rejected. 7. That apart, the earlier writ petition was allowed to be withdrawn. Therefore, I do not find any embargo, as canvassed by the learned counsel for the first respondent, to apply the principles of res judicata against the present prayer. Hence, the said contention is rejected. 7. Turning to the second argument placed by the learned counsel for the first respondent that the period of service rendered in Saudi Arabia from 8.10.93 to 7.10.96 should be excluded is concerned, it must be mentioned that when the petitioner was serving as Assistant on being promoted from 5.3.84, he was working till 7.10.93 in the said post. After securing proper permission from the competent authority to take up employment in Saudi Arabia, he went abroad on 8.10.93 and his appointment was till 7.10.96 for three years. After completing three years period, he has rejoined the same post on 8.10.96, therefore, the question as to whether the said period viz., 8.10.93 to 7.10.96 should be excluded is to be answered in the light of G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93. The counter affidavit filed by the first respondent also mentions two conditions, sought to be applied against the persons like the petitioner, which are given as under:- ''(i) The period of absence during employment abroad will be treated as EOL without pay and allowances but such period of absence will not be construed as a break in service and it will not be counted for service benefits such as increment, pay, leave, etc. however, if contribution towards pension is paid by the Foreign employer or employee such periods will count for pension. (ii) On return from abroad he shall not claim any preference over others in the parent department for promotion or higher pay by virtue of the experience gained in foreign employment nor shall he claim exemption from working experience or other qualifications required under rule.'' 8. A close reading of the first condition clearly shows that the period of absence during employment abroad will be treated as EOL without pay and allowances, but such period of absence will not be construed as a break in service. A close reading of the first condition clearly shows that the period of absence during employment abroad will be treated as EOL without pay and allowances, but such period of absence will not be construed as a break in service. Therefore, when G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93 had permitted the petitioner to take up foreign employment, there was no impediment or condition that the period of foreign service should be excluded by treating the same as break in service. However, the subsequent G.O.Ms.No.7 dated 4.1.96 and G.O.Ms.No.173 dated 28.3.96 no doubt mention clearly that a person who is serving in the post of Assistant Section Officer, which has been upgraded from the post of Assistant, should put in six years of service for his name to be included in the panel for promotion to the post of Section Officer and the period of service rendered abroad should be treated as break in service respectively. After the petitioner left the department on 8.10.93, the controversial G.O.Ms.No.7 dated 4.1.96 and G.O.Ms.No.173 dated 28.3.96 giving retrospective effect from 12.8.94, no doubt speak clearly that the Assistant Section Officer should possess six years of continuous service in the said post and also for treating the foreign service as break in service, as a pre-condition for inclusion of his name for the higher post. But this Court is unable to find any justification as to how the subsequent Government Orders that was introduced on 4.1.96 and 28.3.96 with retrospective effect from 12.8.94 respectively can be applied to the petitioner. By the time the said Government Orders were introduced on 4.1.96 and 28.3.96 with a gap of more than 2 years, the same cannot be allowed to take away the accrued rights of the petitioner given by virtue of the previous G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93. In fact, till now, the previous G.O.3D No.23 dated 30.9.93 has not been modified. Even otherwise, it is a trite law that the rule could be amended only prospectively. In fact, till now, the previous G.O.3D No.23 dated 30.9.93 has not been modified. Even otherwise, it is a trite law that the rule could be amended only prospectively. When a similar issue came up for consideration before me in V. Srinivasan v. State of Tamil Nadu and others 2010 (4) MLJ 1211 , by placing reliance on a judgment of this Court in Sambandam v. District Revenue Officer and others, 1988 (1) LW 620, I have held that only the rule that existed on the date of the applications made by the petitioner that should be applied and not the rule as it stood amended as on the date on which the applications were disposed of. At the risk of repetition, it may be mentioned that in the present case, the petitioner was accorded permission to go abroad on 08.10.1993, prior to the subsequent rule came into force, therefore, the case of the petitioner to be disposed of only on the basis as it stood before the subsequent amendment of the rule, as all laws which affect the substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. 9. Therefore, when the petitioner was permitted to go abroad only on the basis of the earlier G.O.3D No.23, Personnel and Administrative Reforms (Per-M) Department dated 30.9.93 saying that the period of absence during employment abroad will not be construed as break in service, this Court finds merits in the submissions made by the learned senior counsel for the petitioner. Accordingly, by setting aside the impugned order, this Court holds that the petitioner has got the requisite six years of service to be included in the seniority list for the post of Under Secretary, although he was in employment abroad for the period from 8.10.93 to 7.10.96. With this observation, the writ petition stands allowed. Consequently, M.P.Nos.1 of 2011, 1 of 2012 and 1 of 2013 are closed. However, there is no order as to costs.