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Judgment
V.K. Bist, J
Petitioner has approached this Court seeking following reliefs:-
“i. Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 17.10.2017 passed by Executive Engineer, Minor
Irrigation Division, Pauri whereby the representation moved by the petitioner, has been rejected.
ii. Issue a writ, order or direction in the nature of certiorari to quash the impugned orders dated 09.12.2013 and 02.01.2014 whereby the
representations made by the petitioner against adverse entries of 2012-13 and 2013-14 have been rejected by the incompetent officer and
consequently the entries made in the service record of the petitioner for the assessment year 2012-13 and 2013-14 may be upgraded by deleting
adverse remarks and quashing all other adverse orders, if any.
iii. Issue a writ, order or direction in the nature of mandamus commanding the official respondents to consider the claim of the petitioner for promotion
to the next higher post of Chief Assistant w.e.f. 26.09.2013 and pay her all consequential benefits including arrears of salary in lieu of promotion.â€
Petitioner was appointed as Junior Clerk in Minor Irrigation Department on 10.05.1999. She was promoted as Senior Clerk in the year 2009. On
13.05.2013 the District Magistrate inspected the office of Minor Irrigation Division and found some employees absent from the office. He asked for
their explanation. In compliance of that the Executive Engineer of the Division directed the petitioner to submit explanation about her absent from
duty. Explanation was submitted by the petitioner on 03.06.2013. In her explanation, the petitioner stated that on 13.05.2013 she was on leave on
account of treatment of her child. She also submitted medical prescription etc. in support of her version. Explanation submitted by the petitioner was
considered by the Executive Engineer but after considering the explanation of the petitioner, the Executive Engineer passed an order on 22.06.2013
whereby though the leave was sanctioned for 13.05.2013 but the petitioner was given warning to ensure timely presence in the office. Thereafter, on
31.07.2013 adverse entry was made in the service record of the petitioner for the assessment year 2012-2013 with the observations viz remaining
absent from office without obtaining leave; violating the directions; not discharging duty of section in time and untimely disposal of cases pertaining to
Right to Information Act. Adverse entry was recorded in the service record of petitioner on 30.07.2014 for the year 2013-2014 with liberty to make
representation against said adverse remark. On 07.08.2013, the petitioner made representation against the adverse entry before the next higher
authority i.e. Executive Engineer. In the said explanation, she stated that the adverse entry given to her is not sustainable because she was not even
entrusted the work for which she was being penalized. However, she gave undertaking that in case there was some omission on her part she will
make best efforts to improve herself in future. Representation of the petitioner was rejected by the Executive Engineer Mr. P.K. Singh on 06.09.2013
without considering the legal pleas raised by her. Against the said order dated 06.09.2013, petitioner moved appeal before the next superior authority
i.e. the Superintending Engineer of Pauri Circle. Mr. P.K. Singh was holding duel charge of the post of Executive Engineer as well as Superintending
Engineer and since this order was signed by him, he forwarded the matter to Chief Engineer and Head of the Department stating therein that the
appeal be decided by some other officer. On 10.10.2013, petitioner moved another representation before the Chief Engineer and sought to expunge
the adverse entries from her service record for the assessment year 2012-2013 and 2013-2014 and for giving her promotion on the next higher post
from the date same was granted to the juniors. The representation moved by the petitioner was decided by Mr. P.K. Singh, as at the time of deciding
the representation, he was holding the post of Executive Engineer.
The contention of learned counsel for the petitioner is that since Mr. P.K. Singh was the person who gave adverse entries to the petitioner and
thereafter also decided the representation filed by the petitioner, he could not have decided the representation of the petitioner. He sat in appeal
against his own order and was biased in the matter. He submitted that the order passed by Mr. P.K. Singh, rejecting the representation of the
petitioner is not correct as the man cannot sit in appeal against the order passed by himself.
Per Contra, learned Additional Chief Standing Counsel submitted that there is no illegality in the order as at that time Mr. P.K. Singh was holding
the post of Superintending Engineer and there was no one to whom the matter could be referred. He referred paragraph 8 of the counter affidavit in
this regard. Paragraph 8 of the counter affidavit of respondent no.2 is reproduced hereinafter:
“8. In reply to the contents of paragraph no.6 of the writ petition it is submitted that on 25.06.2011 the petitioner herself made a request letter to
attach her at Minor Irrigation Division Syunsi. Thereafter on 29.05.2012 the Assistant Engineer, Minor Irrigation Sub Division Satpuli, requested for
providing on Junior Assistant due to shortage of employees and exigency of work. The place Satpuli is nearby Pauri instead of Syunsi. Taking into
consideration the request of the petitioner, in the interest of the work in the department, vide order dated 30.05.2012 the petitioner was directed that in
the first and third week of every month, apart from the wok discharged by the petitioner at her original place of posting, she will also discharge the
departmental work at Minor Irrigation Sub Division Satpuli and the petitioner voluntarily complied with the said order. It is further clarified here that
the distance from Pauri to Syunsi is about 135 Kms., whereas the distance from Pauti to Satpuli is only 52 Kms. Being a female employee the
petitioner was attached at nearby place from Pauri.â€
I have considered the submission of learned counsel for the parties. Every appeal is to be decided in fair manner. The officer, while awarding
adverse entry, is supposed to apply his mind. If that officer is asked to decide the representation filed against his own decision, possibility of taking
same view by that officer cannot be ruled out. It cannot be said with certainty that the person sitting over his own judgment will be wholly unbiased
and will decide the appeal by taking independent view. Moreover, decision should not only be taken fairly but it should appear to the party that such
decision is taken fairly in unbiased manner. Though, there is possibility that officer may have acted bonafide, nonetheless, the principles of natural
justice, fair play, and propriety demands that he should not have decided the appeal. In the present case, the person who has decided the
representation, sat in appeal also. This is not legally permissible.
In view of above discussion, the writ petition is allowed. Order dated 17.10.2017 is quashed. Concerned authority shall decide the representation of
the petitioner afresh in accordance with law within one month from the date of presentation of certified copy of this order. The respondents are
further directed to consider the case of the petitioner for promotion as prayed by her in accordance with law.
No order as to cost.