... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.207 OF 2008 Shri Gajanan Atma Pal ... Petitioner v e r s u s Government of Goa and 4 ors. ... Respondents Shri S. G. Dessai, Senior Advocate with Mr. D. B. Ambekar, Advocate for the petitioner. Mr. S. R. Rivonkar, Government Advocate for the respondent no.1. Mr. A.N.S. Nadkarni with Mr. H. D. Naik, Advocates for the respondents no.2, 3 and 4. Shri S. D. Lotlikar, Senior Advocate with Mr. Ryan Menezes, Advocate for the respondent no.5. CORAM: S. C. DHARMADHIKARI, J. R. C. CHAVAN, J. Date : 23.09.2008. ... 2 ... P.C. By this Writ Petition under section 226 of the Constitution of India, the petitioner challenges the orders, copies of which have been annexed as Exh.P-1, P-2, P-3 and P-4. 2. By Exh.P-1 which is termed as the impugned order no.1, the petitioner has been communicated that his appointment made as Housing Engineer in the Goa Housing Board by the State Government on 02.03.2007 shall be treated as an appointment made on Probation for 2 years instead of on Regular basis. Thus, this is a corrigendum issued to the order of appointment dated 02.03.2007. Both the original order and the corrigendum are issued by the Government of Goa, Housing Board Department, Secretariat, Porvorim, Goa. The second order which is the impugned in the present petition is dated 21.01.2008, the petitioner has been communicated by this order that since his appointment is now by order dated 27.11.2007, treated as on ... 3 ... Probation, he is reverted to the post of Executive Engineer from his present post i.e. Housing Engineer. The order was passed on the ground that the performance of the petitioner was not found satisfactory. The Government directed additional charge of the post of Housing Engineer shall be given to the Senior most Executive Engineer in the seniority list of the Goa Housing Board. 3. After the order passed on 27.11.2007 and prior to the second impugned order dated 21.01.2008, the Government of Goa reconstituted the Goa Housing Board. A copy of the Notification is annexed at page 53. 4. In the meanwhile, the respondent no.5 who was in the service of the second respondent/Goa Housing Board, as Executive Engineer challenged the order of promotion of the petitioner dated 02.03.2007 by filing an appeal being Appeal No.1/2007 before the Government of Goa. That appeal was allowed on 24.01.2008. After that appeal was allowed, the respondent no.5 took over the post of Housing Engineer and was appointed as such, on ... 4 ... 25.02.2008. Thus, the respondent no.5 replaced the petitioner as Housing Engineer. 5. The petitioner has therefore, challenged the Appellate order and the promotion of Respondent no.5. 6. We have heard Shri Dessai, Senior counsel appearing for the petitioner at some length. He has invited our attention to several provisions in the Act and Regulations so also the events from February, 2003 onwards in the Housing Board. He has also contended before us that prior to the appointment of the petitioner by order dated 02.03.2007, the Board meeting held on 25.07.2007 gives additional charge to the petitioner. The additional charge was given to the petitioner although the respondent no.5 was senior to him. Thereafter, regular D.P.C. was convened, at which, the respondent no.4 was present. The D.P.C. has evaluated the performance of the petitioner and the respondent no.5 and thereafter promoted the petitioner. Our attention is also invited to the minutes of the D.P.C. meeting. ... 5 ... 7. Thereafter, it is contended by the petitioner that although the Assembly Elections were held in June, 2007, till 10.12.2007, the Board was not reconstituted. The respondent no.4 was working as a Managing Director of Respondent no.2 and his substantive appointment was as a Joint Secretary, Government of Goa. Thus, he was overall in charge of the Board till the reconstitution and in these circumstances, Mr. Dessai contended that there were certain events which disclosed that he would be representing the Government in his capacity as the Joint Secretary, (Housing) and also the Board in his capacity as Managing Director. He has invited our attention to the Memorandum dated 25.02.2008 issued by the respondent no.4 as the Managing Director and reply of the petitioner at page 138 of the paper book. Therefore, the contention is that the second memorandum was issued on 04.01.2008 and prior thereto the first impugned order has been passed. The averments leading to the letter dated 27.06.2006 by by the Joint Secretary, Housing to the Managing Director of Goa Housing Board are also high lighted. Thus, the contention is that the First Impugned order is passed so as to facilitate the ultimate ... 6 ... Reversion from the promotional post. That, the Petitioner is termed as a “Probationer” after 6 months and more had elapsed from his promotion. Therefore, this is not a mere correction as is the purpose of issuing corrigendum but a substantial alteration in status. Further assuming that it is a mere correction, yet, thereafter, the Petitioner was reverted. All orders have a punitive element in them. They have civil consequences, therefore, adherence to principles of fairness and reasonableness is necessary. 8. What we find from the reading of these documents that the petitioner is aggrieved by the action of the State and role of respondent no.4 in particular. He acted on behalf of the Government and also the Board. In his capacity as the Managing Director of the Board, he has issued Memorandum calling for explanation from the petitioner and as representative of the State of Goa in his capacity as Joint Secretary (Housing) he passed the Impugned orders. . Although this fact is seriously contested by the Government and the Board, the fact remains that the ... 7 ... respondent no.4 was closely associated with the affairs of the Board at the relevant time. 9. We therefore, indicated to Mr. Rivonkar as to whether the State Government will have a re-look and consider the grievance of the petitioner afresh. Mr. Rivonkar after taking instructions stated that the State of Goa will be willing to do so. 10. We therefore, indicated to Mr. Dessai that the present petition will be treated as a representation to the State of Goa and then the State would consider the matter afresh, after calling for the remarks of the Housing Board and even grant opportunity to the petitioner to make good his case. The petitioner thus would be duly heard when the present petition is treated as a representation and the matter is looked into afresh. 11. It is true that Mr. Nadkarni appearing for the respondent no.4 contended that this Court should not express any prima facie opinion in the matter by observing whether the ... 8 ... petitioner is entitled to any opportunity of being heard and on what ground. He submitted that no grounds which would enable a favourable order being passed are made out. 12. We do not wish to go into the controversy on merits. All that we expect is that reasonableness and fairness on the part of the State and its Instrumentalities. It is undisputed all State actions have to be fair, reasonable and just. The petitioner deserves atleast a fair chance of placing his grievance before the Appointing Authority, who is supposed to take an independent and impartial decision. Admittedly, the respondent no.4 at the relevant time was the Joint Secretary of the Department of Housing and working as Managing Director and he is presently also continuing as the Managing Director of the Board. In such circumstances and to avoid any charge of unfairness and unreasonableness by the State that we made this suggestion, which was readily accepted by Mr. Rivonkar after taking instructions so also by other counsel. Accordingly, the matter shall be placed before the appropriate/competent authority, namely, the State Government ... 9 ... and the petition be treated as a representation of the petitioner and after giving due opportunity of hearing to him, the Board and the respondent no.5 it shall pass final orders and as expeditiously as possible and within a period of two months from this order. Needless to state that the State Government shall not be influenced by its earlier orders or that of the Board. All contentions and pleas as raised in the petition and the reply are kept open. 13. Petition disposed off. No costs. S. C. DHARMADHIKARI, J. R. C. CHAVAN, J. lh/.