Ganesh Chandra Pathak vs State Of Assam And 4 Ors

1) Heard Mr. R. Dubey, learned counsel for the petitioner and Mrs. M.D. Borah, learned Govt. Advocate, appearing for the respondents.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the legality of the order dated 06.06.2017,

passed by the Addl. Secretary to the Govt. of Assam, Transport Department by which the respondent authorities had revoked the promotion of the

petitioner to the post of Enforcement Inspector (‘EI’ for short), despite the fact that he had superannuated as EI on 31.03.2017.

3) The facts which are not in dispute is that the petitioner had joined service as Lower Division Assistant (‘LDA’ for short) vide order dated

04.10.1985. Thereafter, by order dated 16.09.2013, he was promoted to the post of Upper Division Assistant (‘UDA’ for short). The Transport

Department held Departmental Promotion Committee (‘DPC’ for short) on 30.07.2013 for selecting candidates for promotion to the post of EI

for the vacancies arising in the year 2010, 2012 and 2013, and the name of the petitioner and others were recommended by the DPC. Accordingly, the

petitioner was promoted to the post of EI vide notification no. TMV.43/2010/163 dated 24.01.2014 issued by the Principal Secretary to the Govt. of

Assam, Transport Department (respondent no.1). The petitioner joined in the post of EI on 27.01.2014 and superannuated in the said post on

31.03.2017.

4) In the meantime, the petitioner had submitted his pension papers before the respondent no.4, who had forwarded the proposal to the respondent

no.5 vide letter dated 25.04.2017. However, vide letter dated 15.09.2017, the respondent no.2 had informed the respondent no.3 that the pension

papers of the petitioner was returned back to the respondent no.4 with a request to re-submit the pension proposal as per the office order dated

06.06.2017. Thereafter, the petitioner came to know that by the order dated 06.06.2017, impugned herein, the promotion order of the petitioner to the

post of EI had been revoked, and the petitioner also came to know about the judgment and order dated 10.02.2014, passed by this Court in W.P.(C)

4424/2013.

5) By referring to the contents of the impugned order dated 06.06.2017, the learned counsel for the petitioner has submitted that only on the perusal of

the said order the petitioner could come to know for the first time that W.P.(C) 4424/2013 (Chitra Kumar Nath & 4 others Vs. The State of Assam &

7 others) was filed before this Court to assail the promotion recommended by the DPC held on 30.07.2013 to the cadre of EI from AEI and

Ministerial Cadre. Accordingly, this Court by interim order dated 08.08.2013 had stayed the promotion recommended by the DPC on 30.07.2013 to the

cadre of EI from the rank of AEI. The relevant part of the said interim order dated 08.08.2013 is quoted below:-

“Having regard to the submissions made and considering the materials on record, it is hereby directed, as an interim measure, that no

promotion order in respect of respondent nos. 4 to 8 therein shall be issued based on the selection made on 30.07.2013 till the next date.â€​

6) The said writ petition was allowed by directing the respondent authorities the liberty to start a fresh process for considering promotion of the AEI,

to the extent of 25% vacancies in the cadre of EI. It was also directed that the process should be preceded by finalizing the gradation list in the feeder

cadre. Thereafter, on the basis of the judgment and order dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013, the impugned order dated

06.06.2017 was passed.

7) The learned counsel for the petitioner has submitted that neither the petitioner was impleaded as a party respondent in W.P.(C) 4424/2013 nor the

order no. TMV.43/2010/163-163(A) dated 24.01.2014, whereby the petitioner was promoted from the post of Senior Assistant (‘SA’ for short)

to the post of EI was assailed by the writ petitioners. The learned counsel for the petitioner has referred to the copy of writ petition of W.P.(C)

4424/2013, and it is submitted that the writ petitioners therein were then posted as AEI and were aspirants for being promoted to the post of

Enforcement Inspector in the Transport Department and, as such, the petitioners in W.P.(C) 4424/2013 had no locus standi to challenge the promotion

order of the present petitioner, who was then holding the post of SA. In this regard, it is submitted that Rule 5 of the Assam Transport Service Rules,

2003 provides for the manner in which recruitment was to be done for filling up the post of EI, amongst others, envisaging that under rule 5(4)(b) of

the said rules, 25% post in the cadre of EI shall be filled up by promotion from ministerial cadre of Head Assistant and UDA serving in District

Transport Offices in accordance with rules 11, 14, 15, 16, 17 and 18, and as per rule 5(4)(c) of the said rules, 25% of the posts in the cadre shall be

filled up by promotion from the cadre of AEI in accordance with rules 11, 17 and 18. By referring to the prayers made in the said writ petition, it is

submitted that the order to promote the petitioner or others from the post of Head Assistant/ UDA/SA to EI was not assailed and rather, the

petitioners in the said writ petition had prayed before this Court for setting aside the selection of the private respondent nos.4 to 8 arrayed therein as

EI in the Transport Department, Govt. of Assam, pursuant to recommendation made by the DPC held on 30.07.2013. Accordingly, it is submitted that

the respondent authorities had misconstrued the judgment dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013 to recall the order dated

24.01.2014, by which the petitioner was promoted. It is also submitted that before passing an order adverse to the interest of the petitioner, he was not

put to any notice and, as such, he was denied any opportunity of being heard. In order to buttress his submissions on non- joinder of necessary and

proper parties, the learned counsel for the petitioner has placed reliance on the following cases, viz., (i) Udit Narain Singh Malpaharia Vs. Additional

Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, (ii) Shiv Kumar Tiwari (Dead) by LRs. Vs. Jagat Narain Rai & Ors., (2001) 10 SCC

11, (iii) Khetrabasi Biswal Vs. Ajay Kumar Baral & Ors., (2004) 1 SCC 317, (iv) Public Service Commission, Uttaranchal Vs. Mamta Bisht & Ors.,

(2010) 12 SCC 204.

8) Per contra, the learned Govt. advocate has placed strong reliance on the judgment dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013,

and she has justified the consequential order dated 24.01.2014 passed by the respondent no.2 to restore the earlier position of the petitioner as SA. It is

submitted that once this Court had set aside the selection process undertaken by the DPC, the respondent authorities had to comply with the orders

passed by this Court. By referring to the case of (i) Union of India Vs. Nareshkumar Badrikumar Jagad, (2019) 18 SCC 586, and (ii) Haobam Sunil

Singh Vs. State of Manipur & Ors., (1995) 3 GLR 390, it is submitted that though the petitioner is apparently aggrieved by the order dated 06.06.2017

issued by the respondent no.2, but the said order was issued pursuant to directions contained in the judgment and order dated 10.02.2014, passed by

this Court in W.P.(C) 4424/2013, as such, the petitioner would be entitled to relief only after successfully assailing the said judgment and order dated

10.02.2014 either by filing appeal or by preferring a petition for review of the said order. It is urged that this coordinate Bench of equal strength should

be slow to interpret the said judgment and order dated 10.02.2014, and as the DPC dated 30.07.2013 was held by this Court to be illegal, the order

dated 24.01.2014, promoting the petitioner from SA to EI could not stand. The learned Govt. Advocate has also placed reliance on the case of Ram

Janam Singh Vs. State of Uttar Pradesh & Ors., (1994) 2 SCC 622, to support her contention that as the recommendation made by the DPC dated

30.07.2013 was assailed, it was not necessary to implead all those who may be affected by such challenge.

9) The submissions made by the learned counsel for both sides have received due consideration.

10) In the order dated 6th June, 2017 (Annexure-7), impugned herein, it has been mentioned to the effect that by order no. TMV.43/2010/163 dated

24.01.2014, Sri Padum Bahadur Lama, Assistant Enforcement Inspector and Sri Ganesh Pathak (i.e. petitioner), Senior Assistant, Smt. Lily Deori,

Senior Assistant and Sri Prasanta Kr. Sarmah, Senior Assistant were promoted as Enforcement Inspectors in violation of this Court’s order dated

08.08.2013 and that their promotion was considered without considering those who were senior to them and accordingly, their promotional order was

revoked. Nonetheless, by the same order, power was exercised by the respondent no.2 under Regulation 4(d) of Assam Public Service Commission

(L&F) Regulation, 1951 to promote Sri Padum Bahadur Lama (AEI), Smt. Lily Deori (SA) and Sri Prasanta Kr. Sarmah (SA) were promoted as EI.

It is reiterated that the petitioner had already superannuated on 31.03.2017, before the impugned order dated 06.06.2017 was passed.

11) At the outset, it may be stated that there is no dispute that the petitioners were not arrayed as respondents in W.P.(C) 4424/2013. The following

prayers were made in the said writ petition, viz., (i) to issue a writ of certiorari, setting aside the selection of the private respondents as Enforcement

Inspectors in Transport Department, Govt. of Assam, pursuant to selection held on 30.07.2013; (ii) to issue writ of mandamus directing the authorities

to promote the petitioners to the cadre of Enforcement Inspectors; and (iii) to pass such further order(s) to which the petitioners are entitled under law

and equity to give complete relief to the petitioners.

12) It is crystal clear that the judgment dated 10.02.2014 passed by the coordinate Bench of this Court in W.P.(C) 4424/2013 contains a specific

mention in para-15 to the effect that “… and since the proceeding of the DPC held on 30.07.2013 is declared to be illegal …â€. It is deemed

appropriate that para-14 to 16 of the said judgment and order is quoted herein below:-

“14. Since this court has found fault with the DPC proceeding dated 30.07.2013, upon considering the further submission made by Mr.

MK Choudhury, the learned Sr. Counsel, Mr. M. Bhuyan the learned counsel representing the private respondents and Mr. U. Rajbongshi,

the Counsel for the Transport Department, and noticing the stalemate in the promotion exercise, the Government is given the liberty to start

a fresh process for considering promotion of the Asstt. Enforcement Inspectors, to the extent of 25% vacancies in the cadre of Enforcement

Inspector. This process should be preceded by finalizing the gradation list in the feeder cadre.

Here since the Government is yet to decide on relaxation of upper age limit as has been stated by the Departmental lawyer, and since

the proceeding of the DPC held on 30.07.2013 is declared to be illegal, the State respondents are at liberty to consider promotion to the

cadre of Enforcement Inspector in accordance with the applicable Rules. But to give finality to the aspiration of the respondents, the

Government should decide on age relaxation either way, before starting the fresh process. Unless the Government considers it expedient to

relax the age cap of 50 years, only those Asstt. Enforcement Inspectors who are below 50 years of age can be considered by the DPC as

per Rules.

With the above direction, the WP(C) No. 4424/2013 stands disposed of without any order on costs.â€​

13) It is not the pleaded case of the petitioner that the said judgment and order dated 10.02.2014 was fraudulently obtained and no declaration in this

regard has been sought for. Rather, it is the case of the petitioner that the said judgment and order dated 10.02.2014 could not be made applicable on

the petitioner as he was neither a party to the proceedings of W.P.(C) 4424/2013 nor any relief was prayed in respect of the order dated 24.01.2014,

promoting the petitioner, which is a fact that is apparent from the cause title copy of W.P.(C) 4424/2013 (Annexure-8 series). From the prayers made

in W.P.(C) 4424/2013, it is apparent that the prayers were made qua the private respondents therein. However, this Court while passing the judgment

dated 10.02.2014, had declared that the DPC held on 30.07.2013 was illegal. There is no ambiguity whatsoever in the observation made by this Court

in the said judgment dated 10.02.2014 that the “DPC held on 30.07.2013 was illegalâ€​. The said declaration has attained finality.

14) Thus, in light of the above facts, the Court is required to examine whether without commenting upon the judgment and order dated 10.02.2014

passed in W.P.(C) 4424/2013, it would be permissible to interfere with the impugned order dated 06.06.2017.

15) The learned counsel for the petitioner had inter alia, submitted the petitioner was not arrayed as a party respondent in the said W.P.(C) 4424/2013

and that the selection and promotion of the petitioner from UDA to AEI was not the subject matter of challenge in the said writ petition. Per contra,

the learned Govt. Advocate had submitted that it would not be possible for this coordinate Bench to interfere with the impugned order dated

06.06.2017, because the said order was a result of the judgment and order dated 10.02.2014 passed by this Court in W.P.(C) 4424/2013 and, as such,

it was submitted that the appropriate remedy that may be available to the petitioner would be to either seek review of the judgment dated 10.02.2014

passed in W.P.(C) 4424/2013, or to prefer an appeal against the said order with the leave of this Court.

16) Without any iota of doubt, it is seen that as a consequential fallout of the judgment dated 10.02.2014 passed in W.P.(C) 4424/2013, the impugned

order dated 06.06.2017 was passed by the respondent no.2 and resultantly, the order dated 24.01.2014 by which the petitioner was promoted to the

post of EI was interfered with. It may be stated that after passing of the said order dated 24.01.2014, by an order no. DTK/AMG/2011/3/107 dated

27.01.2014, the District Transport Officer & Secretary, Regional Transport Authority had released the petitioner to enable him to join as EI on

promotion.

17) In the present case in hand, the learned counsel for the petitioner has been able to show from the materials on record that while passing the

impugned order dated 06.06.2017, no opportunity of hearing was afforded to the petitioner. At this stage, it would be appropriate to refer to the

Constitution Bench decision of the Supreme Court of India in the case of Union of India Vs. Tulsiram Patel, 1985 STPL 3060 SC: (1985) 3 SCC 398,

where the evolution and development of principles of natural justice (i.e. principles of audi alteram partem was discussed in details. Be that as it may,

it is seen that this Court had assigned reasons to find fault with the DPC dated 30.07.2013. On the other hand, it is apparent from the conjoint perusal

of para-14 and 15 of the judgment and order dated 10.02.2014, as extracted herein before, not only this Court had declared the DPC held on

30.07.2013 to be illegal, but the State respondents were granted liberty to consider promotion to the cadre of EI in accordance with the applicable

Rules. Thus, in terms of the said judgment and order, the respondent no.2 had passed the impugned order dated 06.06.2017. Therefore, as the

respondent no.2 had passed the impugned order dated 06.06.2017 in order to implement the judgment and order dated 10.02.2014, in the considered

opinion of the Court, it would not be permissible for this coordinate Bench to hold that the recommendation made by DPC dated 30.07.2013 in so far

as it concerned the petitioner was not invalidated by the judgment and order dated 10.02.2014.

18) In the quest for justice, it is deemed appropriate to examine whether the doctrine of sub silentio can be invoked under the facts of the present case

in respect of the judgment and order dated 10.02.2014 passed by this Court in W.P.(C) 4424/2013, in so far as it relates to interference with DPC

dated 30.07.2013, adversely affecting the petitioner. In this regard, it would be appropriate to refer to the explanation of the concept of sub silentio at

pp. 153 by Professor P.J. Fitzgerald, Editor of the Salmond on Jurisprudence, 12th Edition, in these words:

A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved

in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of

point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of

the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such

circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an

authority on point B. Point B is said to pass sub silentio.

19) Upon examining the said concept, it is seen that the principle of sub silentio has been elaborately discussed by the Supreme Court of India,

amongst others, in the case of (i) State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr., (1991) 4 SCC 139, (ii) Arnit Das Vs. State of Bihar,

(2000) 5 SCC 488, (iii) A-One Granites Vs. State of U.P. & Ors., (2001) 3 SCC 537, (iv) Divisional Controller, KSRTC Vs. Mahadeva Shetty &

Anr., (2003) 7 SCC 197, (v) State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr., (2004) 11 SCC 26. It appears that when a matter is

decided without argument, without reference to the crucial words of the rule, and without any citation of authority, would not be binding and would not

be followed. It has been held that precedents sub silentio and without argument are of no moment. However, as already indicated herein before, in the

present case in hand, this Court had assigned reasons for holding the DPC dated 30.07.2013 to be illegal. The respondent no.2 had thereafter, issued

the impugned order dated 06.06.2017, in compliance of the directions contained in the judgment and order dated 10.02.2014. Under such

circumstances, it is not permissible for the Court to ignore the judgment and order dated 10.02.2014, merely on the ground that the petitioner was not

impleaded as a party respondent in the said writ petition.

20) In the case of Udit Narain Singh Malpaharia (supra), the Supreme Court of India was not deciding whether the previous judgment was void for

non- joinder of necessary party, rather the Supreme Court of India was deciding the issue of non- joinder in connection with the same lis.

21) The case of Shiv Kumar Tiwari (supra), was pressed to bring home the point that previous judgment could not be pressed to the detriment or

prejudice of the interest of a party who was not heard. The brief facts of the said case was that the appellant was temporarily appointed as a Teacher

in Mathematics in the college in reference, and the District Inspector of Schools accorded approval for session 1969-70, and fresh approvals were

granted for subsequent academic session 1970-71, 1971-72 and 1972-73. Before the expiry of the term on 30.06.1973, the College Management gave

a notice dated 19.05.1973, which was questioned by filing CS Case No. 108/1973 without impleading State, or Education Department, or the first

respondent, who was appointed as Lecturer in Mathematics on 06.09.1973 in the said college after a selection process. The suit was decreed on

25.05.1979, declaring the appellant to be permanent Lecturer in Mathematics. Thereafter, on a representation filed by the petitioner, the authorities,

without hearing the first respondent, not only terminated his service but it was also held that salary, etc. have to be paid to the appellant. The first

respondent challenged the order dated 09.11.1979 by filing CMWP No. 9255/1979 and the appellant filed WP No. 17209/1992 for payment of salary.

The High Court allowed the writ petition of the first respondent and dismissed the writ petition filed by the appellant. In that factual context, it was

held by the Supreme Court of India that non- joinder of necessary parties was fatal and the judgment passed in the suit filed by the appellant would not

benefit him. Thus, on facts, the present case is distinguishable. Moreover, in this writ petition, there is no prayer by the petitioner that the judgment and

order dated 10.02.2014 in W.P.(C) 4424/2013 was a nullity.

22) In the case of Khetrabasi Biswal (supra), the Orissa Public Service Commission had submitted a list of persons recommended for appointment to

25 posts of Temporary Munsif (Emergency Recruitment) in Class-II of the Orissa Judicial Service. The State Government after receiving the list from

the Commission, prepared another list out of the list prepared by the Commission. One person aggrieved by non- inclusion of name, assailed the list

prepared by the State by filing writ petition under Article 226 of the Constitution of India, which was allowed. In appeal by the appellants, the Supreme

Court of India had held that the procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order

passed is a nullity, and does not have a binding effect. There is no quarrel with the trite law laid down by the Supreme Court of India. In fact, this is

the precise argument of the learned Govt. Advocate that if the petitioner is aggrieved by the judgment dated 10.02.2014, the said judgment has to be

assailed by the petitioner either by filing review or by way of appeal.

23) In the case of Mamta Bisht (supra), notwithstanding the fact that no successful candidate were impleaded as parties in the writ petition, the

Supreme Court of India had held that the view taken by the High Court was contrary to the law laid down by the Supreme Court of India in the matter

of horizontal reservation for women and accordingly, the judgment passed by the High Court was interfered with. Thus, the said case does not help

the petitioner.

24) Thus, the ratio of the cases cited by the learned counsel for the petitioner does not help the petitioner in any way.

25) In the present case in hand, the respondent no.2 had revoked the order of promotion dated 24.01.2014, having held that the petitioner was

promoted in violation of the interim order dated 08.08.2013, passed by this Court in W.P.(C) 4424/2013. Thus, although there is no discussion in order

dated 10.02.2014 in W.P.(C) 4424/2013 regarding the promotion of the petitioner, yet, this Court had consciously held Court in para-15 to the effect

that “…the proceeding of the DPC held on 30.07.2013 is declared to be illegal …â€. Thus, this is not a case where the doctrine of sub silentio can

be applied because the respondent no.2 had considered the said judgment and order dated 10.02.2014 passed by this Court in W.P.(C) 4424/2013 and

acted in terms of directions contained therein. The respondent no.2 had acted in terms of the decision of this Court, as such, the Court is of the

considered opinion that the decision dated 10.02.2014 was meant to be applied and accordingly, the said decision should not be ignored on application

of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor.

26) Nonetheless, by applying the principles of audi alteram partem, the order dated 06.06.2017, impugned in this writ petition is not found sustainable

because before issuing the order dated 06.06.2017, adverse to the interest of the petitioner to revoke his promotion, the petitioner was neither put to

any notice nor he was provided with any opportunity of being heard. The promotion of the petitioner from AEI to SA was revoked by order dated

06.06.2017 after he had superannuated from service on 31.03.2017. It is reiterated at the cost of repetition that by the same order dated 06.06.2017,

power was exercised by the respondent no.2 under Regulation 4(d) of Assam Public Service Commission (L&F) Regulation, 1951 to promote Sri

Padum Bahadur Lama (AEI), Smt. Lily Deori (SA), and Sri Prasanta Kr. Sarmah (SA) as EI and it appears that as the petitioner had already

superannuated on 31.03.2017, before the impugned order dated 06.06.2017 was passed, the respondent no.2 had not considered the case of the

petitioner for promoting him under Rule 4(d) of the Assam Public Service Commission (L&F) Regulation, 1951.

27) Therefore, on the ground that the case of the petitioner was not considered at par with the herein before referred similarly situated persons,

namely, (i) Sri Padum Bahadur Lama (AEI), (ii) Smt. Lily Deori (SA), and (iii) Sri Prasanta Kr. Sarmah (SA), who were promoted to the post of EI

vide impugned order dated 06.06.2017 by exercising power under Rule 4(d) of the Assam Public Service Commission (L&F) Regulation, 1951. It is in

the said context of not treating the petitioner equally for the purpose of notional and retiral benefits, the impugned order dated 06.06.2017 is not found

sustainable.

28) In the present case in hand it is seen that the judgment and order dated 10.02.2014 in W.P.(C) 4424/2013, declaring the DPC dated 30.07.2013 to

be illegal did not stand in the way of the respondent no.2 to apply Rule 4(d) of the Assam Public Service Commission (L&F) Regulation, 1951 to

promote as many as 22 numbers of AEI/HA/SA to the post of EI including the (i) Sri Padum Bahadur Lama (AEI), (ii) Smt. Lily Deori (SA), and (iii)

Sri Prasanta Kr. Sarmah (SA), who were purportedly promoted to the post of EI by the order dated 24.01.2014 (as it appears from the contents of

order dated 06.06.2017). Thus, it is apparent that the respondent no.2 had not assigned any reason for not considering promotion to the similarly

situated petitioner, though notionally and for calculating his retiral benefits. Accordingly, the Court is of the considered opinion that it is not permissible

for the respondent no.2 to have left out the petitioner from being considered for promotion, notionally and for retiral benefits.

29) Therefore, under the facts unique to this case in hand, the Court is of the considered opinion that for reasons as indicated above, this is a fit and

proper case to permit the petitioner to submit his written representation before the respondent no.2 to consider his case for promotion to the post of EI

(Enforcement Inspector), notionally and for calculating retiral benefits, by applying Rule 4(d) of the Assam Public Service Commission (L&F)

Regulation, 1951, as was done vide order no. TMV.126/2014/126 dated 06.06.2017 issued by respondent no.2 to promote as many as 22 numbers of

AEI/HA/SA to the post of EI including (i) Sri Padum Bahadur Lama (AEI), (ii) Smt. Lily Deori (SA), and (iii) Sri Prasanta Kr. Sarmah (SA)

petitioner (who were promoted along with the petitioner by order no. TMV.43/2010/163 dated 24.01.2014). The exercise to consider and dispose of

the representation submitted by the petitioner shall be completed within a period of 6 (six) weeks from the date of submission of such representation

accompanied with a certified copy of this order.

30) Before parting with the records, it is deemed appropriate to make it clear that in the event the petitioner is still aggrieved by the judgment and

order dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013, he may be well advised to take appropriate steps in that regard. Therefore, the

cases cited by the learned Govt. Advocate has not been discussed so that the parties herein shall not be prejudiced in the event the judgment and order

dated 10.02.2014 is put to review and/or if an appeal is preferred by the petitioner herein.