WP(C) 5136/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. P. Kataki, learned counsel for the petitioner as well as Mr. R . Singha, learned Standing counsel, BTC. I have also heard Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. By means of this writ petition the petitioner has prayed for a directio n to the respondents to allow the petitioner to hold the promotional post of Acc ountant to which he was promoted alongwith others by Annexure-I order dated 25. 05.2007. By the said order, the petitioner on promotion was posted at Assam Fore st College, Jalukbari. While endorsing a copy of the said order to the concerned authorities, they were requested to release the incumbents enabling them to jo in the promotional post. In the meantime the petitioner was arrested on 20.07.2007 by the police in a criminal case which was registered as CID P.S. Case No. 27/06 under Section 468/471 IPC. Considering his police /judicial custody, he was placed under susp ension by Annexure-IV order dated 30.07.07. However, he was reinstated in servic e by Annexure-VI order dated 16.08.08 pending drawl of a departmental proceeding . The order of reinstatement was passed by Council Head of Department of Fores ts, BTC, Kokrajhar. After such reinstatement in service the petitioner has been allowed to work in his former post of Sr. Assistant and not in his promotional post of Accountant. The grievance of the petitioner is that since by the aforesa id order dated 25.05.2007 he was promoted to the post of Accountant, he should be allowed to hold the said promotional post. It has been stated in the writ pet ition as well as in the rejoinder affidavit filed against the counter affidavit of the respondents that there has been no progress either in the criminal case o r in the proposed departmental proceeding. In the counter affidavit filed by the respondents it has been stated th at although the petitioner was promoted to the post of Accountant, but before he could hold the promotional post he being involved in a criminal case, he could not be given the promotional post. In the rejoinder affidavit failed by the peti tioner, it has been stated that he was not at all aware of pendency of the FIR a gainst him and that it was only with his arrest he could come to know about the aforesaid police case. During the course of hearing Mr. P. Kataki, learned counsel for the peti tioner has submitted that both in the criminal case and the proposed departmenta l proceeding no charge sheet/ charge memo has been submitted. He has further sub mitted that even if the charge memo/charge sheet is submitted at this stage, sam e cannot relate back to the date of promotion on 25.05.2007. On the other hand Mr. Singha, learned Standing counsel, BTC submits that since the petitioner is yet to be exonerated from the criminal case, he cannot claim the promotional post. Ms. R. Chokraborty, learned State counsel has adopte d the said argument advanced by Mr. Singha. The fact of the matter is that the petitioner was promoted by order date d 25.05.2007. But for the delay in releasing him to join the promotional post he would have joined the same. Consequently, his suspension would have been in th e promotional post of Accountant. The petitioner having earned his promotion be fore his involvement in the criminal case, such promotion cannot be denied to h im. Further, as has been held by the Apex Court in Union of India vs. K.V. Janki raman reported in AIR 1991 SC 2010 , it is only when a charge memo in a discipli nary proceeding or a charge sheet in a criminal prosecution is issued to the emp loyee, it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. Sealed cover procedure is to be resorted to only after the charge memo/ charge sheet is issued. Pendency of preliminary investig ation prior to that stage will not be sufficient to enable the authorities to ad opt the sealed cover procedure. In the instant case as submitted by the learned counsel for the petition er the charge sheet/ charge memo has not been issued till date. Even if the same is issued, same cannot relate back to the date of promotion on 25.05.2007. The petitioner having earned his promotion before his arrest in the criminal case an d placement under suspension, he cannot be deprived of his promotional post. In the counter affidavit nothing has been stated regarding progress of the proposed departmental proceeding and the criminal proceeding. In view of the above, this writ petition is allowed directing the respon dents, more particularly the respondent No. 2, to give effect to the order of p romotion dated 25.05.2007 so far as the same relates to the petitioner. Let the consequential order be passed as expeditiously as possible, but at any rate, not later than 31.07.2011.