IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1985 of 2006 DR.MUNDRIKA PRASAD, son of late Sri Suraj Deo Narain, resident of Mohalla Rajendra Puri, Kalambagh Road, Muzaffapur-842001. ... Petitioner. Versus 1. THE STATE OF BIHAR 2. Commissioner-cum-Secretary, Department of Health New secretariat, Patna. ... Respondents. ----------- 2. 26.08.2010 Heard learned counsel for the petitioner and Mrs. Nivedita Nirvikar, learned Government Pleader-16 for the State. The prayer of the petitioner in this writ application reads as follows;- “1. That this is an application for issuance of a writ in nature of writ of certiorari or any other writ/writs, order/orders, direction/directions quashing order dated 18.6.2005 passed by the Secretary, Health and Family Planning, Govt. of Bihar, Patna communicated vide letter dated 27.9.2005 whereby representation of the petitioner who superannuated on 30.5.1991 for promotion in Super Time Selection Grade has been rejected and further for direction to the respondents to grant promotion to the petitioner in Super Time Selection Grade with effect from 1.4.1987 along with consequential benefits, i.e. from the day his promotion was due and his juniors were given promotion vide order dated 26.6.1998.” With regard to the aforementioned prayer, 2 counsel for the petitioner would first draw attention of this Court towards notification of promotion dated 26.6.1998 to contend that while juniors to the petitioner at serial no. 10 onwards were given promotion in the Super time Scale w.e.f. 1.4.1987, the similar promotion to the petitioner was denied by keeping a post reserved for him. He would also submit that the possible plea of the respondents of pendency of Vigilance P. S. Case No. 41 of 1990 could not have deprived the petitioner from getting his promotion with effect from 1.4.1987 inasmuch as on 1.4.1987 no criminal case was pending against the petitioner. Proceeding further, counsel for the petitioner would submit that since the impugned order passed by the Secretary of the Health Department on 18.6.2005 is based on account of pendency of aforesaid criminal case against the petitioner, the same must be held to be bad and consequently this court must issue a direction for giving promotion to the petitioner in Super Time Scale of pay w.e.f. 1.4.1987 when his juniors were given such promotion. On the other hand, Mrs. Nevidita Nirvikar, learned G. P. 16 for the State would submit that the case of 3 the promotion of all persons including senior and junior to the petitioner was taken up by the Departmental Promotional Committee on 17.5.2001 wherein the DPC had recommended the name of the petitioner for promotion subject to clearance by vigilance. It has also been submitted that the petitioner was found to be an accused in Vigilance P. S. Case No. 41 of 1990 and therefore DPC had taken a decision to keep a post reserved for the petitioner awaiting the final result of the criminal case. Additionally, it has also been pointed out that the petitioner has been made accused in MSD Scam cases and therefore till criminal case is decided the petitioner cannot be given promotion. She has accordingly supported the impugned order passed by the Secretary of the Department. In the opinion of this Court, the basic difference between regular promotion and time bound promotion is that the person must be eligible on the date such promotion is being considered. True it is whenever such a date has to be given for promotion, in the event of time bound promotion will be date back to the period but promotion in selection grade for junior selection grade, senior selection grade and 4 super time scale is not a time bound promotion in fact is a regular promotion. Eligibility of the person will have always to be adjudged on the date of consideration of such promotion. Admittedly, the case of promotion of senior to the petitioner was considered in the year 2001 for grant of promotion in Super time scale and on that date the petitioner was facing prosecution in two criminal cases. It is not in doubt that charge-sheet has already been filed in one of the criminal case though neither party is aware with regard to fate of second criminal case pending against the petitioner. The Apex Court in such circumstances while laying down the proposition of law in the case of Union of India Vs. K.V. Jankiraman, reported in 1991 S.C. 2010 has laid down that normally promotion will not be withheld only on the ground of fact finding enquiry or lodging of first information report, but if the memo of charge has been framed in the departmental proceeding meaning thereby departmental proceeding has been initiated or a charge-sheet has been filed in a criminal case that by itself would be sufficient to withhold the promotion of the persons concerned till its final conclusion. The concept of sealed 5 cover procedure was also enforced by the Apex Court by keeping the proceeding of DPC pending for reconsideration on completion of departmental proceeding or judgment in the criminal case. In the present case, when it is not denied by the counsel for the petitioner that the charge-sheet against the petitioner in Vigilance Case No. 41 of 1990 had already been filed even before the meeting of Departmental Promotion Committee there would be nothing left for this court to decide afresh as with regard to entitlement of the promotion of the petitioner. The reliance placed by learned counsel for the petitioner on an order of this Court in the case of Gukul Prasad vs. The state of Bihar & Ors., reported in 2004(1) PLJR 557 also seems to be wholly misplaced. In that case, the petitioner, Gukul Pd. he had already been granted ad hoc promotion on 22.6.1990 and the issue arose as to whether his regular promotion with effect from 1994 could be withheld on the ground of pendency of criminal case. Thus facts of the case of Gukul Prasad (supra) is entirely different specially when his ad hoc promotion was already notified on 22.6.1990. Moreover, it 6 appears that this Court while passing order in the case of Gukul Prasad (supra) had not taken into account the judgment of the Apex Court in the case of Janaki Raman (surpa). Thus, when the counsel for the State also pointed out a special scheme prevailing in the State of Bihar for considering the scope of prima facie case as explained in the Circular of Personal and Administrative Reforms Department dated 12.3.1979 which also clearly lays down the filing of charge-sheet in a criminal proceeding to be sufficient for withholding the promotion, the natural corollary would be the ratio of Janaki Raman’s case (supra) laying observance of special scheme of the employer for giving promotion will have to be followed. As noted above, the pendency of two criminal cases in which the charge-sheet has already been filed against the petitioner at least in one case would automatically disentitle the petitioner to get promotion till its final adjudication by the competent Court. It has also to be kept in mind that the petitioner has not been denied promotion rather a post has been kept reserved for him and 7 therefore if the petitioner is given clean acquittal by the competent court in the two pending criminal cases, the respondents as per the proceeding of the departmental Promotion Committee and the order contained in Annexure- 2 would be bound to consider the case of promotion of the petitioner with retrospective effect as has been given to his juniors with effect from 1.4.1987. With the aforementioned observation, this writ application is dismissed. kanchan. ( Mihir Kumar Jha, J.)