IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15109 of 2007 LALU PRASAD KAMTI, son of late Ram Swaroop Kamti, resident of Mohalla – Rajiv Nagar, P S – Digha, District – Patna, at present posted as Constable in the Department of Excise in Collectorate Patna. Versus 1. THE STATE OF BIHAR through Secretary cum Commissioner, Department of Excise, Government of Bihar, Patna. 2. The Deputy Commissioner, Department of Excise (Excise Investigation Bureau), Bihar, Patna. 3. The Assistant Commissioner of Excise Department, New Secretariat, Bihar, Patna. 4. Vishwanath Jha, ASI, posted at Patna district in the office of the Excise, Collectorate, Patna. 5. Rameshwar Yadav, ASI, Task Force, Patna. ----------- 03. 3.9.2010 There are two prayers which the petitioner has made in this writ application. One is that he should be given the benefit of ACP (Assured Career Progression) from 9.8.1999 when the eligibility accrued to him and that he should also be promoted on a substantive basis on the post of ASI from 27.10.2004 when juniors to the petitioner were promoted. Stand of the State in their counter affidavit is that the benefit of ACP can accrue only to such persons who are otherwise eligible for promotion. Since there is a criminal case pending against the petitioner for an offence under sections 302/34 of the Indian Penal Code, therefore, no benefit of promotion can be given to the petitioner which included the benefit of ACP. It is also the stand of the State that no junior has been promoted as has been alleged on behalf of the petitioner. However, they are willing to consider the case of the petitioner if there is no other impediment in the next DPC when ever it is held. Contention of the petitioner is that in the year 1999 there 2 was no bar to the eligibility which the petitioner had for promotion. Even for the sake of argument if it is accepted that the criminal case was instituted against the petitioner which came in his way, the same was instituted on 2.6.2002 and charge sheet came to be filed thereafter. There is nothing on record to show that there was anything pending against the petitioner in the year 1999 or 2000 when his case ought to have been taken into consideration for conferment of the benefit under the ACP. In view of the contention of the petitioner so far as ACP is concerned, respondent authority is hereby directed to consider the grant of the same to the petitioner if there was nothing pending or subsisting against him prior to institution of the criminal case in 2002. Institution of the case in 2002 will not co-relate to the period when the petitioner was otherwise eligible for promotion in the year 1999. Early decision in this regard would be required to be given by the Principal Secretary cum Commissioner of Excise, Government of Bihar. So far as substantive promotion on the post of ASI is concerned, all the facts and materials should be brought to the notice of the DPC which shall take decision on the eligibility of the petitioner for such promotion based on his service record and the rules in this regard. The writ application stands disposed of. rkp ( Ajay Kumar Tripathi, J.)