IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.26 of 2007 1. SMT.CHANDRAWATI DEVI , W/o Late Kedar Nath Sharma 2. Amarendra Kumar, S/o Late Kedar Nath Sharma. 3. Birendra Kumar, S/o Late Kedar Nath Sharma. All Residents of Mohalla-Alka Colony, Sandalpur Road, P.S.- Sultanganj, Town and District- Patna. ………Petitioners Versus 1. STATE OF BIHAR through the Chief Secretary, Government of Bihar, Patna. 2. The Secretary-cum-Commissioner, Department of Primary and Adult Education, Government of Bihar, New Secretariat, Patna. 3. The Director, Administration-cum-Joint Secretary, Department of Primary and Adult Education, Government of Bihar, New Secretariat, Patna. ……. Respondents. ----------- 6. 01-10-2010 Heard learned counsel for the petitioners and learned counsel for the Respondents. 2. This writ petition has been filed for review of order dated 03.08.2005 by which a Bench of this court dismissed C.W.J.C. No. 1072 of 2004 filed by one Kedar Nath Sharma, who was the husband of petitioner no. 1 and father of petitioner nos. 2 and 3. He died on 16.02.2004 and his said heirs were substituted in the aforesaid writ petition vide order dated 11.05.2004. 3. The point taken by the learned counsel for the petitioners is that the order under review is based on the assumption that on the day of consideration of the matter in dispute by the Departmental Promotion Committee, charges in criminal were pending against the original writ petitioner namely Kedar Nath Sharma, who was a District Education Officer and had retired from Jahanabad in the year 1991. The charges against him were with 2 respect to the period of his posting at Sasaram in the year 1986. 4. Learned counsel for the petitioners further submits that Sasaram P.S. Case No. 601/91 was initiated against the original writ petitioner and other persons with respect to irregular appointment and financial irregularities but no charges were framed and in the mean time promotion was denied to him against which he filed C.W.J.C. No. 3315/1998, which was disposed of on 17.11.1999 with the observation that promotion cannot be denied to an employee for the simple reason that there is an F.I.R. lodged against him and therefore, the authorities were directed to consider the case of promotion of the said original petitioner. 5. Learned counsel for the petitioners further submits that thereafter the Departmental Promotion Committee considered the matter on 23.12.2000 and kept its decision under sealed cover keeping a post vacant. When the final decision of the Departmental Promotion Committee was not disclosed for several years, the original petitioner moved this court in CWJC No. 1072 of 2004 challenging the minutes of the Departmental Promotion Committee dated 23.12.2000 and also for commanding the respondents to promote the petitioner in Bihar Education Service Class-I (Senior Selection Grade) with effect from the date of his entitlement along with other consequential benefits. In paragraph 23 of the said writ petition, it was specifically stated that charge sheet was filed in the above criminal case on 10.12.2002 against the accused persons including the petitioner. The said fact with regard to the date of submission of charge sheet was not denied in the counter affidavit 3 filed by the respondents in the said case. Leaned counsel for the petitioners submits that in spite of the aforesaid facts the order under review was passed on the assumption that on the date of consideration by the Departmental Promotion Committee, charges were already framed against the original writ petitioner and hence, he was not entitled to claim promotion. Learned counsel for the petitioners further submits that it is a clear error in the judgment apparent from the face of the records. 6. On the other hand, learned counsel for the respondents submits that in view of order dated 17.11.1999 passed in C.W.J.C. No. 3315/1998 the Departmental Promotion Committee considered the matter of promotion to the petitioner and rejected the same as charge sheet had been submitted in the criminal case. However, no date of filing of the charge sheet has been mentioned by the respondents either in the counter affidavit filed in this review petition or in the counter affidavit filed in the writ petition nor ever they denied the date of filing of the charge sheet against the petitioner i.e. 10.12.2002 clearly mentioned in paragraph-23 of the writ petition. 7. In the aforesaid facts and circumstances as well as from the averments of the learned counsel of the parties and the materials produced before this court, there is nothing to show that on or before the date of consideration by the Departmental Promotion Committee on 23.12.2000 any charge sheet had been filed against the original petitioner in the criminal case nor the claim of the respondents can be relied upon as no date has been provided by them 4 at any stage. It is also apparent from the record that MJC No. 3596/2000 was filed by the petitioner for implementation of order dated 17.11.1999 passed by this court in C.W.J.C.No. 3315 of 1998, in which a supplementary show cause on behalf of the authorities was filed annexing charge sheet as Annexure-C series at page 14 thereof which clearly shows that charge sheet was submitted by the prosecution on 10.12.2002 in Sasaram P.S. Case No. 601 of 1991. Annexure-C at page 6 of the said supplementary show cause also shows that Sasaram P.S. Case No. 601 of 1991 was also numbered as Special Vigilance Case No. 85 of 1991. In the said circumstances, the claim of the petitioner that charge sheet was submitted in the criminal case on 10.12.2002 stands unrebutted rather admitted. 8. The law is well settled that mere filing of F.I.R. does not mean pendency of a criminal case much less pendency of the charges unless the charge sheet is filed in the criminal case. Reference in this regard may be made to the decision of the Apex Court in case of Union of India Vs. K.V.Janki Raman reported in 1992(1) PLJR (SC) 27. Thus on the date of consideration of the petitioner’s matter by the Departmental Promotion Committee on 23.12.2000 no charges were filed or pending against the original writ petitioner in the said criminal case. But order under review has been passed on the assumption that charges were framed against the original writ petitioner on or before the date of consideration by the Departmental Promotion Committee, which is clearly against the record of the case. 9. Furthermore, while disposing of C.W.J.C. No. 3315 5 of 1998 on 17.11.1999 this court had specifically directed that the order of the authorities denying promotion on the ground of pendency of a criminal case which was merely at the stage of investigation was quashed. The same stage continued till 23.12.2000 when the matter was again considered by the Departmental Promotion Committee. Hence, the said consideration by the Departmental Promotion Committee was against the above mentioned order dated 17.11.1999 of this court passed in C.W.J.C. No. 3315 of 1998 which was Annexure-7 of the writ petition bearing C.W.J.C. No. 1072 of 2004 out of which this review case has arisen. 10. In the aforesaid facts and circumstances, this court finds error apparent on the face of the record in order dated 3.08.2005 passed in C.W.J.C. No. 1072 of 2004 and thus it is reviewed and the claim of the petitioners are allowed. Consequently the minutes of Departmental Promotion Committee dated 23.12.2000 to the extent it adversely effected the petitioners’ predecessor is quashed and the respondents are directed to grant promotion to the original writ petitioner Kedar Nath Sharma in the Bihar Education Service Class-I(Senior Selection Grade) with effect from the date his junior had been promoted. The authorities are also directed to make payment of all the consequential benefits in view of the said promotion to the credit of the review petitioners, who are the heirs of the original writ petitioner, after due calculations within six months from the date of receipt/production of a copy of this order. Sujit (S.N.Hussain, J.)