J.B. Mehta, J.
1. In the first petition the petitioner temporary Chief Store Keeper challenges the validity of the action of the Respondent-Oil Natural Gas Commission, hereinafter referred to as 'the Commission' re-fixing the seniority of the petitioner and respondents Nos. 2 and 3 in the cadre of chief store-keepers so as to treat these backward class respondents as senior. In the second petition, the petitioner has given a withdrawal Purshis so far as respondents Nos. 5 to 11 are concerned and has now confined his attack only so far as Respondent No. 4 Gyansing is concerned and the petitioner has challenged action of the Commission in calling respondent No. 4 at the interview which was to be held on February 8, 1972, by the Departmental Promotion Committee for the post of Executive Engineer (Production) on the footing that here also this backward class Respondent No. 4 was senior to the petitioner temporary Assistant Engineer, Production. In the third petition also the petitioner having withdrawn the relief claimed as regards other respondents 6 to 9 by the withdrawal Purshis, the petition has been confined by that petitioner also in so far as that Assistant Engineer also challenges the confirmation and the preferential treatment given to Gyansing by treating him as senior and calling him for the aforesaid interview. As all these petitions involve common questions of law they are disposed of by this common order.
2. In the first petition there is no dispute that by the final seniority list, dated April 1, 1969, the petitioner was treated as senior to respondents Nos. 2 and 3. This seniority is now sought to be modified under the provisional list, dated May 26, 1970, with effect from June 1, 1970. The petitioners' representations against such provisional list have been turned down by the letter dated December 22, 1970, stating that under the instructions, contained in the Government of India Memoranda, dated April 20, 1961 and September 12, 1968, which had been made applicable after due consideration in the Commission by the impugned circular, dated May 26, 1970, the seniority was correctly revised on the basis of confirmation which was given to these scheduled caste backward employees in the reserved vacancies and because seniority in such cases accompanied confirmation. In the second and third petition, the stand of the Commission is that the backward class employee Gyansing, respondent No. 4, was appointed as Assistant Engineer Production on November 4, 1969 and he had completed probationary period on November 4, 1970. As per the impugned circular of May 26, 1970, Gyansing was declared permanent in the post of Assistant Engineer, Production, against the reserved post with effect from November 4, 1970. It is also the case of the Commission that after the final seniority list was issued, dated December 4, 1969, showing the post as on April 1, 1968, another provisional seniority list of Assistant Engineers (Production) appointed from April 1? 1970 to March 31, 1970 was circulated under the circular letter, dated July 17, 1970 and in which list Gyansing was shown. The same is the stand in the third petition. The Commission therefore justifies prejudicial treatment in all these three petitions on the score of the impugned circular of May 26, 1970, under which for scheduled caste persons reservation having been provided, and those concerned respondents having been confirmed, the seniority date accompanies the confirmation in their cases. The Commission has also taken the stand that even before this impugned circular adopting Government of India's instructions on the subject in question, even on earlier occasions, the instructions of the Government of India were implemented by the Commission and the impugned circular only reiterates instructions which were issued in the past on this subject.
Therefore, the material questions which have been raised by the petitioner in all these petitions are:
(1) as to whether their seniority on the final list could be thus altered by the Commission to their prejudice without giving them an opportunity to be heard in accordance with the minimum principles of natural justice, by apprising them of a proper proposal and by giving them an opportunity to convince the authorities as to why there should be no revision of their seniority shown as per the final list.
(2) That this prejudicial treatment which has been given to the petitioner could never be justified on the basis of the impugned circular of May 26, 1970, or on the basis of the so called executive instructions of the Government of India, as they would not amount to valid reservation under law within the meaning of Article 16(4), and in any event, as no retrospective effect can be given.
The petitioners have raised various other points but it is not necessary to go into those other questions as they would be entitled to succeed on the aforesaid contentions which we are presently considering.
4. In the Full Bench decision in Special C.A. No. 1470 of 1968, finally decided on September 7. 1971 Bhagatram Sardarsing Raghuvanshi v. Sukhdeo Singh Ors. this O.N.G.C. has been in terms held to be 'a 'State' falling within the definition of the State under Article 12. Therefore, it is obvious that the O.N.G.C. employees could claim protection of Article 14 or particular protection of the guarantee under Article 16. Therefore, even in the matter of their seniority, they are entitled to claim equal treatment. If any prejudicial treatment is sought to be given to these employees, the constitutional protection under Article 16 would be violated, unless the authority could bring the case within the exception under Article 16(4). It is equally well settled that when such statutory body seeks to prejudice the rights of the employees by deciding the question of their seniority, it would have to reach a fair and just decision after following the minimum principles of natural justice by apprising the concerned employees of its proposal and by considering their representations by giving them effective opportunity to be heard so as to convince the authority as to why it should not implement its proposal. Therefore, in all the three cases when the final seniority list was sought to be revised by the authority to the prejudice of these employees, the authority was bound to give an opportunity of being heard and to reach a just and fair decision in the matter in the light of the relevant guidelines. The guidelines in such service matters may be statutory guidelines under the relevant service rules or regulations or under the relevant binding rules of policy which must be uniformaly applied so that there would be no discrimination. Therefore, such administrative orders would have to be passed in accordance with the principles of natural justice. In Union of India v. P.K. Roy : (1970)ILLJ633SC , at page 858, their Lordships in terms held that when a preliminary gradation list was published, normally speaking, an opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice could not be imprisoned within the straight-jacket of a rigid formula. The application of the doctrine depended upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute, and other relevant circumstances disclosed in the particular case. Therefore, their Lordships held in the context of that case that where questions arose as regards intense seniority of the Assistant Engineers from the different regions in the reorganised states, in view of the special circumstances of the case, even a second opportunity was necessary to enable the concerned employees to make a representation on the two relevant points after the final seniority list was published so that the final gradation list could be properly worked out. As no such opportunity was given the combined final gradation list was held to be ultra vires. This decision completely settles the question that when the authority seeks to revise the seniority list which has been finally determined to the prejudice of the employees, it is bound to give opportunity to the concerned employee to make an effective representation. Mr. Patel vehemently argued that the very proposal of the provisional list would be sufficient and that the employees having made a representation, there would be no question of violation of the principles of natural justice. If we turn to the first petition, what is mentioned in the provisional list which is sought to be published at Annexure C is only that those concerned respondents of the scheduled caste were to be given a higher seniority on the basis of their confirmation on July 29, 1963 and April 16, 1966, over the petitioner. That would give no idea whatever to the petitioner of the circumstances and reasons which gave rise to this proposal of the Commission. What Commission wanted to do was that in view of the confirmation of the scheduled class employees to reserved vacancies under a proper reservation order as per the impugned circular, the seniority was sought to be revised. Unless the petitioners were told about all these facts they could never meet with the proposal of the Commission by showing that the impugned circular did not amount to any reservation order within the meaning of Article 16(4) or that it could not be given effect retrospectively or that unless proper posts from year to year were maintained and proper reservation had been made after considering the facts and circumstances of that particular department in question, after forming the requisite opinion, the aforesaid reservation scheme could never be implemented. Therefore, in the present case on this narrow ground the first petition ought to succeed because there was no opportunity worth the name which the petitioner had when his seniority was sought to be revised. Even when his representation was turned down the order merely stated that as per the impugned circular, which had been adopted by the Commission, seniority was correctly decided. The order itself discloses that all the relevant questions could not be urged by the petitioner as proper proposal was never communicated to the petitioner before seeking to reopen the question of his seniority. Even in the other two petitions, the final seniority list has been sought to be given a complete go-bye by calling Gyansing for the interview and, therefore without giving an opportunity to the concerned petitioners, a prejudicial treatment is meted out without any effective opportunity of being heard. Even in the affidavit of the Commission, it is stated that the second provisional list of Assistant Engineers appointed from April 1, 1969 to March 31,1970 was circulated only on July 31, 1970 where the name of Gyansing was mentioned. Therefore, until this provisional list was finalised after giving an opportunity of hearing to the concerned petitioners, Gyansing could not be treated as senior straightaway so as to give such prejudicial treatment to the petitioners. Therefore, the first question must be decided in favour of the three petitioners that they had no effective opportunity to be heard when the Commission sought to confirm these concerned backward class candidates in the so called reserved posts and on that footing deciding their seniority as accompanying confirmation.
5 As regards the second question, the Commission has sought to justify its prejudicial treatment on the basis of this impugned circular dated May 26, 1970, which according to them reiterated earlier executive instructions of the Government of India.
6. The Commission is the creature of the Oil and Natural Gas Commission Act, 1959. Section 12 makes provision for the staff of the Commission and Section 12(2) provides that the functions and the terms and conditions of service of such employees shall be such as may be provided by regulations made under this Act. Section 31(1) enables the Central Government to make rules to give effect to the provisions of the Act. Section 32(1) gives power to the Commission to make regulations with the previous approval of the Central Government in the official Government Gazette, which are not inconsistent with the Act and the rules made thereunder for enabling it to discharge its functions under the Act. Section 32(2) provides that in particular and without prejudice to the generality of the foregone provision such regulations may provide for (a) the terms and conditions of appointment and service and the scales of pay of employees of the Commission including payment of travelling and daily allowances in respect of journeys undertaken by such employees for the purposes of the Act. Therefore the terms and conditions of services of the employees can be regulated by the necessary regulations as contemplated by Section 12(1) and Section 32 provided that they are not inconsistent with the Act and the rules There is no rule or regulation relied upon in this connection. Therefore, Mr. Doshi had vehemently argued that service conditions of the employees could never be sought to be prejudiced by any executive action on the part of the Commission. It is not necessary to go into this wider question as the dispute in the present petition, can be answered even on the alternative ground by assuming that the relevant reservation as contemplated by Article 16(4) of the Constitution in favour of the scheduled caste employees can be done by regulations or rules or by executive order of the Commission. This question had come' up for consideration in Triloki Nath v. State of Jammu Kashmir A.I.R. 1969 S.C. 1. At page 2 their Lordships have in terms observed that Article 16(4) undoubtedly empowers the State to make reservation of appointments or posts in favour of any backward class citizens so as to give the class an adequate representation in the services under the State. The provision making such reservation need not be by a statutory enactment. It may be made by an executive order or direction. Their Lordships however in terms held that there was not even a formal executive order expressly dealing with reservation of posts and appointments in the Education, Department. In that decision their Lordships refused to express final opinion on the question whether a provision under Article 16(4) was not effective., unless it was made by legislation or by an executive order formally published. In the present case also as we earlier indicated this wider question we leave open as the matter may be disposed of on the short ground that not only there is complete absence of any statutory regulation or rule on the subject but there is no executive order of the Commission formally published, which expressly deals with the subject of reservation of posts and appointments in these two relevant departments. We are concerned in these petitions with the Chief Store keepers and the Assistant Engineers, Production.
7. Mr. Patel vehemently argued that their Lordships only contemplated some executive order or direction and, therefore, it was not a condition precedent for a reservation order which was not one by way of a statutory reservation but only by an executive order that it must be a formally published order. This contention of Mr. Patel could hardly be accepted for the simple reason that this is a binding reservation order under Article 16. Article 16 guarantees a rule of law by ensuring equal treatment to the employees of the Commission which is now held to be a 'State' within the meaning of Article 12 of the Constitution. Therefore, when employees' rights are to be prejudiced and a prejudicial treatment is to be supported by such an exceptional order under Article 16(4), it is obvious that it cannot be by a mere executive instruction on the office file. The very guarantee of Article 16 envisages rule of law which is very antithesis of any arbitrary executive power. It is but the rule of Jaw which imposes reasonable restraints by curbing the exercise of arbitrary power. Therefore, when employees are guaranteed protection of Article 16, the guarantee itself carries with it a judicial discretion to be exercised by the authority in accordance with the principles of natural justice and as per the relevant guidelines which may be in the statutory terms and conditions of service or in the relevant order, which would have to be uniformly applied to all employees. Therefore, these norms are to be laid down for disposal of the service matters as the binding guidelines to the authorities and they must consist of relevant, appropriate principles, which must be known to the employees so that these employees who are sought to be prejudicially treated might be able to convince the authorities by making effective representation to convince the authority not to implement its proposal. That is why the said order under Article 16(4) by its very nature must be an order which must be duly published so that it can be brought to the notice of the concerned employees, and it could never be a mere executive instruction on the office files. In Harala v. State of Rajasthan A.I.R. 1967 S.C. 467 at page 468, their Lordships rested this salutary requirement of due publication on the basis of principles of natural justice. Their Lordships in terms observed that natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or at the very least, there must be special rule or regulation or customary channel by or through which such knowledge could be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber, to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. Therefore, in the absence of any law, rule, regulation or custom, it was held that a law could not come into being in this way. Promulgation or publication of some reasonable sort is essential. Their Lordships made a distinction between statutory enactments and other binding orders. The statutory enactments are publicly enacted by the accredited representatives of these people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and now over the wireless. Not so, Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary. What is good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be. The same principle must apply to such reservation order under Article 16 which must have a force of law so as to bind these employees and which will enable the statutory authority to give preferential treatment in violation of the constitutional guarantee of equal treatment to all the employees. That is why their Lordships had in Triloki Nath 's case in terms rested the decision on the ground that there was no formal executive order expressly dealing with reservation of posts and appointments in the education department.
8. Mr. Patel relies upon the impugned order as per the circular dated May 26, 1970 which reads as under:
Subject.--Fixation of seniority of permanent employees belonging to scheduled caste/scheduled tribes.
1. A copy of each of the Government of India, Ministry of Home Affairs, New Delhi, office memorandum No. 9/45/60 Estt(D), dated the 20th April 1961,' and office Memorandum No. 6/28/68-Estt (SCT) dated the 12th September 1968, arc forwarded herewith.
2. The instructions, contained in the above quoted office Memorandum will be followed in the commission.
Sd/ G.D. Dhingra
Senior Deputy Director
for Chief of Administration.
The accompaniment to this circular are memoranda of the Government of India, dated April 20, 1961 and September 12, 1968. In the first memorandum the Government has clarified the question whether after confirmation in accordance with the special representation orders scheduled castes/ scheduled tribes candidates should be treated senior to the temporary/officiating officers of the grade concerned, even though the latter might have been recruited earlier to that grade or secured a higher order of merit in the same selection than the former. That is why in para 3 it is mentioned that it is clarified that after confirmation the scheduled caste/scheduled tribe candidates will rank senior to the temporary/officiating officers of the grade and amongst the permanent officers of that grade their seniority will follow the order of their confirmation. It is requested that the above clarification may kindly be brought the notice of all concerned in the Ministries including their attached and subordinate offices for information and guidance. The second circular of the Central Government which is annexed to the main circular is of September 12,1968 on the subject of reservations for scheduled castes and scheduled tribes in services and confirmation of temporary employees. It lays down as under:
As the Ministry of Finance etc. are aware, in posts/services filled by direct recruitment, reservation is required to be made for scheduled castes/and scheduled tribes both at the time of initial appointment on a temporary basis as well as at the time of confirmation. In posts filled by promotion, however, there is no reservation at the stage of confirmation- vide para 3(4) of this Ministry's O.M. No. 1/12/67-ESTC dated July 11, 1968. Ministry of Finance was requested to ensure that reservation was made for scheduled castes and scheduled tribes while making confirmations against posts/services filled by direct recruitment.
Para 2 of the same clarification clarified that after confirmation, the scheduled caste/scheduled tribes officers should rank senior to temporary/ officiating officers of the grade and amongst the permanent officers of that grade, their seniority would follow the order of their confirmation. The instructions in the aforesaid O.M. dated April 20, 1961 were again brought to the notice of the Ministries for guidance and strict observance These are the orders applicable to the Government of India offices. This is not a reservation order for any particular department by the Commission. The Commission only had to bear in mind the instructions while making appointments. Mr. Patel could never press into service this circular as if it were an order as required by Article 16(4). Article 16(4) is an exception and has to be strictly construed. Article 16(4) enacts that nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. In General Manager, Southern Railway v. Rangachari A.I.R. 1962 S C. 26, their Lordships pointed out that power of reservation which is conferred on the State under Article 16(4) could be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction would serve to give effect to the intention of the Constitution makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services. The condition precedent which is required for the exercise of the powers conferred by Article 16(4) was that the State ought to be satisfied that any backward class of citizens was not adequately represented in its services. This condition precedent, as their Lordships held, might refer to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of socially and educationally backward classes required not only that they should have adequate representation in the lowest rank of services but that they should aspire to secure adequate representation in selection posts in the services as well. Therefore, even for their confirmation and giving them seniority accompanied with confirmation, this reservation power under Article 16(4) can be exercised, but it has to be strictly exercised in accordance with the requirement of Article 16(4), in which it is implicit, as earlier stated by us, that there must be a formal, duly published order of the State, after fulfilling necessary condition precedent as to the formation of the requisite statutory opinion that the backward class employees in the particular department in question were not adequately represented in its services. The impugned circular seeks to adopt the circular of the Government of India which could hardly be said to be a reservation order as contemplated by Article 16(4) on the basis of the relevant statutory opinion that backward class employees were not adequately represented in the concerned services under the Commission so far as these two departments are concerned. Therefore, by no stretch of imagination this impugned circular can be read as a duly promulgated order of reservation in the concerned departments as contemplated by Article 16(4).
9. Mr. Patel, however, vehemently relied on the fact that not only on this occasion the Commission had adopted the aforesaid two Memoranda issued by the Government of India, but even on earlier occasions even without such adaptation, they had actually implemented the Government of India Circulars which are sent to the Commission for guidance and information. Such circulars, however, not binding directions and they could, not take place of the formal executive order under Article 16(4) expressly dealing with the subject of reservation of posts and appointments in the two departments in question. In this connection Mr. Patel vehemently relied upon the power of the Central Government to issue directions to the Commission under Section 14(3) which provides that in the discharge of its functions under the Act, the Commission shall be bound by such directions as the Central Government may, for reasons to be stated in writing, give to it from time to time. Mr. Patel has been unable to produce any such directions of the Central Government. Whatever circulars are issued by the Central Government, for information and guidance, are not binding on the Commission as such, and it can take such action as and when it deemed proper so to do. The Commission duly considers this question and it adopts instructions issued by the Central Government, by issuing its own circular taking the policy decision that those instructions of the Central Government would be followed in the Commission. After this policy decision, if any reservation was to be done in any particular department, the Commission would have to apply its mind to the relevant statutory guidelines under Article 16(4) and promulgate the necessary reservation order. Until such order is issued, the Commission can never justify its prejudicial treatment to the non-scheduled caste employees by giving confirmation and by treating those scheduled caste persons as seniors merely on the strength of this impugned circular, dated May 26, 1970, or on the basis of the so-called executive instructions in the post issued by the Government of India on this subject, which were not in terms adopted by the Commission but which are alleged to be implemented. Finally, in this context Mr. Patel vehemently relied upon the office memorandum, dated January 15, 1966, which has been issued in pursuance to the decision taken in the Commission's meeting for converting 50% of temporary posts into non-permanent non-pensionable posts. The procedure of such posts as well as for appointment against such posts was mentioned in para A. In para B it stated that while declaring employees as permanent the members of the scheduled caste/tribes shall be confirmed upto the number of vacancies reserved for them according to the orders, or instructions governing the special representations in services issued by the Commission from time to time. If the employees belonging to these communities are not available for confirmation, a fresh attempt should be made in the matter as laid down in the brochure issued by the Ministry of Home Affairs, circulated,- vide Commission's No. 6(30) Mfgs. 62 dated August 4, 1962. This circular could hardly be pressed into service in the present context because it provides for confirmation of the scheduled caste employees, provided there is a reservation order giving special reservation in service to such scheduled caste employees and which is duly issued by the Commission. The Commission has been unable to point out any such order in the departments concerned, as mentioned earlier and, therefore, this circular could hardly help the Commission to justify the prejudicial treatment given to the petitioner.
9.1 In that view of the matter it is not necessary to go into the last contention raised by Mr. Mehta, that, in any event, the Commission could not give retrospective effect by seeking to fill up the vacancies in 1963 and 1966 on the basis of the circular issued on May 26, 1970. In the view which we have taken that as yet there is no reservation order under Article 16(4) in favour of the backward class employees in the two departments in question, this wider question need not be answered.
10. In the result, all the three petitions must be allowed on the short ground that the Commission has failed to justify its prejudicial treatment on the score of the alleged reservation order as required under Article 16(4) and, therefore, the confirmation orders which it had given to the concerned backward class respondents and the higher seniority which has been given to these employees and interview which was held for the higher post on that basis must be held to be illegal and ultra vires the powers of the Commission. In the result, all the three petitions are allowed by declaring that the impugned actions of the Commissions in confirming the concerned backward class respondents and in giving them higher seniority on that basis and in seeking to interview them for the higher post on that basis are illegal and ultra vires and the Commission is restrained from giving effect to these illegal actions. Rule is accordingly made absolute in each case to this limited extent with no order as to costs in the circumstances of the case.