IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.117 of 2008 KEDAR PASWAN …………….. APPELLANT Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, OLD SECRETARIAT, PATNA 2. THE COMMISSIONER & SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHVESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 3. THE JOINT SECRETARY (MANAGEMENT CELL), ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHVESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 4. THE UNDER SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHVESHWARAIYA BHAWAN, BAILEY ROAD, PATAN 5. THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN, B.P.S.C. OFFICE, BAILEY ROAD, PATNA 6. THE DEPARTMENTAL PROMOTION COMMITTEE THROUGH ITS CHAIRMAN, B.P.S.C. OFFICE, BAILEY ROAD, PATNA …………………….. RESPONDENTS ----------- For the appellant: Mr. Rajendra Prasad Singh, Sr. Advocate Mr. Mritunjay Kumar, Advocate For the respondents 1 to 4 : Mr. Arvind Kumar, GP - XX --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 22nd October, 2008 The single judge in paragraph – 7 of the order impugned of the present appeal observed thus: “Having heard counsel for the parties, I am of the view that in compliance of the orders of this court, case of the petitioner for promotion on the post of Chief Engineer was required to be considered in the light of the Resolution of the State Government dated 11.9.2002, Annexure – 10, which inter alia provides for placing the case of the officers facing criminal charges in which charge sheet has already been submitted under sealed cover and from the charge sheet submitted in the case of the petitioner, it appears that he was an active participant in the Bitumen scam case as he issued bulk purchase orders for Bitumen dated 23.7.1994 and 17.8.1994 to the tune of 500 MT and 1000 MT for different Road Construction Divisions 2 without assessing their requirement causing huge loss to the exchequer as has been prima facie found by the Investigating Agency, as such, recommendation of the Departmental Promotion Committee dated 18/19.4.2006, Annexure –C/1 to place his case for promotion in the sealed cover even for the vacancy, which arose in the year 1994 does not appear to be arbitrary as also contrary to the circular of the State Government dated 11.9.2002, Annexure – 10, which is, accordingly, affirmed and this writ application is dismissed.” 2. Mr. Rajendra Prasad Singh, senior counsel for the appellant does not dispute that the appellant is facing criminal case under section 406 of the Indian Penal Code and the Prevention of Corruption Act. He also admits that the appellant has superannuated at the end of the month of February 2008. If that be so, we are satisfied that no relief can be granted to the appellant in the present appeal. 3. However, we observe that in case the appellant is honorably acquitted in the criminal case and that acquittal attains finality, he may apply to the State government for consideration of his case for promotion to the post of Chief Engineer for the vacancy in the year 1994 and if such representation is not favourably considered by the State government, he may approach this court. In that event, any observation made in the impugned order adverse to the appellant shall not come in the way in consideration of that matter on merit afresh. 4. With the aforesaid observation, letters patent appeal stands dismissed in limine. R. M. Lodha, CJ. Neyaz/ Kishore K. Mandal, J. 3