IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.600 of 2004 DR.DIGAMBAR JHA, S/o Late Khela Nand Jha, resident of village & P. S.: Lakhnaur, Dist. : Madhubani, presently at “Sri Niketan”, Moh- Sriniwaspuri, Ward no. 7, P. S: Barh, Dist. Patna. ………Petitioner. Versus 1. THE STATE OF BIHAR. 2. The Secretary cum Commissioner, Dept. of Health & Family Welfare Dept., Bihar, Patna. 3. The Director, Health Services, Bihar, Patna ……….Respondents. ----------- 3. 29.10.2010 Having heard, Mr. O. P Agrawal, learned counsel for the petitioner. No one appears for the State. This writ application is being disposed of on the basis of the materials on record. Petitioner seeks direction for consideration on his promotion in the Supertime Scale of Bihar Health Service with effect from 01.04.1987. It is the case of the petitioner that though he was eligible for such promotion but the same was denied to him on account of his alleged involvement in M.S.D Scam cases by the Departmental Promotion Committee which had only recommended for keeping the post reserved for him till vigilance clearance. In this case counter affidavit has been filed wherein, apart from annexing the proceedings of the Departmental Promotion Committee dated 17.05.2001 showing the petitioner to be fit for promotion subject to vigilance clearance in paragraph no. 5 thereof it has been stated:- “That it is stated that in the light of recommendation of D.P.C. the matter has been examined and it was found that the petitioner is involved in M. S. D Scam which is under investigation of C.B.I. Therefore the petitioner’s promotion is Supertime Scale is kept pending and 2 his post is reserved. After the receiving of inquiry report from C.B.I the appropriate decision will be taken”. Mr. Agrawal, learned counsel for the petitioner on being asked as to whether the petitioner was made accused in any criminal prosecution arising out of M.S.D Scam case submits that the petitioner has not even been contacted by the C.B.I personnel and, therefore, the petitioner is not aware of any C.B.I prosecution. As noted above, this court does not have the assistance of learned counsel for the State who is not present in the court. In such circumstances, having regard to the last stand taken by the respondents or in their counter affidavit filed on 15.04.2004 that the petitioner was under the scanning in respect of M.S.D Scam cases and that a period of more than six years have already elapsed from the date of filing of such counter affidavit, this court would direct the respondents to reconsider the case of the promotion of the petitioner in terms of the law laid down by the Apex Court in the case of Union of India etc. etc. vs K. V. Jankiraman etc. etc. reported in AIR 1991 SC 2010. In other words, if the petitioner has not been made an accused and no charge sheet has been filed against him in the criminal prosecution, the petitioner is entitled for reconsideration of his case afresh for grant of Supertime Scale from the date his juniors have been given such a promotion. If however, the petitioner is facing criminal prosecution in any of the M.S.D Scam cases and/or has already been subjected to some sort of departmental proceeding pertaining to any of the charges relating to his period of functioning prior to his retirement 3 on 31.12.1990 , the respondents will defer the consideration of the case of the petitioner till final decision taken in criminal prosecution and /or departmental proceeding. It goes without saying that if there is no departmental proceeding and criminal prosecution pending against the petitioner and the post was also kept reserved for him by the Departmental Promotion Committee, the respondents would be also under an obligation to communicate their decision to the petitioner within a period of six months positively from the date of receipt/production of a copy of this order. With the aforementioned observation and directions, the application is disposed of. Anjani/Ranjan (Mihir Kumar Jha, J. )