J.B.MEHTA - (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 refixing 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 In the third petition also the petitioner having withdrawn the relief claimed as regards other respondents 6 to 9 by the withdrawal Purshis the petition has been confined by that petitioner also in so far as that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.
(3.) 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.;