IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7557 of 2005 Suresh Kumar Sinha son of Late Bachoo Singh, R/o village Dhondhary, P.S. Ghosi, Dist. Jehanabad. ---Petitioner. Versus 1. The State Of Bihar 2. The Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Patna. 3. The Deputy Secretary to the Government Personnel and Administrative Reforms Department, Govt. of Bihar, Patna. 4. The Director General of Police, Old Secretariat, Patna. 5. The D.I.G. Muzaffarpur, 6. Additional Director General, Crime Investigation Department, Govt. of Bihar, Patna. ---Respondents. ----------- 05 18.07.2011 Heard Mr. Dinu Kumar, learned counsel for the petitioner, and Mr. Pushkar Narain Shahi learned Additional Advocate General No. XIV for the respondent State. Petitioner assails the order dated 27th April, 2005 passed by the respondent no.3 as contained in Annexure-9 whereby the earlier ad hoc promotion granted to the petitioner as Under Secretary vide order dated 03.09.2004 (Annexure-5) was withdrawn on the ground that petitioner, on the relevant date, was placed under suspension by an order passed by appropriate authority of the Crime Investigation Department (Annexure-4). A perusal of Annexure-4 indicates that petitioner was facing criminal case for having committed financial irregularities and, as such, the authorities, acting in their own discretion, put him under suspension. Several sets of counter affidavit(s) and rejoinder(s) thereto have been filed which are on record. Learned counsel for the petitioner, while assailing the order 2 contained in Annexure-9, submits that the same was passed without affording any opportunity much less reasonable opportunity to explain the circumstances. It is the contention of the petitioner that a legal right vested in the petitioner to hold the promotional post even on ad hoc basis which can be withdrawn and/or cancelled but after affording opportunity of hearing which is the requirement of rules of natural justice. He relies on a Division Bench judgment of this Court since reported in 2006(4) PLJR 71 (Raj Kishore Singh Vs. The State of Bihar & Ors.) Learned counsel for the respondent, on the other hand, submits that petitioner had filed a writ petition being C.W.J.C. No. 8506 of 2010 claiming promotion as Under Secretary in the Joint Secretariat cadre. In that proceeding the facts concerning withdrawal of his ad hoc promotion as contained in Annexure-9 was brought to the notice of the Court. The aforesaid matter was disposed of by order dated 20.06.2011 (Annexure-10 to the reply to the counter affidavit). In the submission of learned counsel for the respondents, this Court, in substance, approved the cancellation/withdrawal of ad hoc promotion made in favour of the petitioner (Annexure-5) by reason of order contained in Annexure-9. It is pointed out that a positive direction has already been issued by the Court in the said proceeding to consider the case of the petitioner for grant of promotion to the post of Under Secretary within a stipulated period. In his submissions, the present application has become infructuous. Few facts which are on record and in respect thereof there is no 3 dispute need to be spelt out first. Petitioner along with 62 others were granted ad hoc promotion to the post of Under Secretary by order dated 03.09.2004 (Annexure-5). Pursuant to the aforesaid order, the petitioner did not discharge the duties of Under Secretary till issuance of order dated 27.04.2005(Annexure-9). It further appears from the order of ad hoc promotion (Annexure-5) that the name of the petitioner figured at Serial no. 60 of the list of promoted officers. At least 03 persons junior to him were also granted such promotion. There cannot be any dispute that any privilege given to an employee which includes promotion by way of ad hoc arrangement can be withdrawn and/or cancelled but after affording an opportunity to submit his explanation thereagainst. Law in this regard is well crystallized by a catena of decisions. Learned counsel for the petitioner has rightly placed reliance on the judgment of this Court in Raj Kishore Singh (supra). The issue, however, is whether a real prejudice has been caused to the petitioner or not by issuing the order as contained in Annexure-9 withdrawing his order of ad hoc promotion on the ground that during the relevant time petitioner was facing a criminal charge and was placed under suspension by an order as contained in Annexure-4. Learned counsel for the petitioner has made diverse submissions to show that the said order as contained in Annexure-4 is without authority of law. Since said order is not under challenge, this Court declines to pronounce its view on the said submission of the petitioner. This Court would consider the said order as it stands. Respondents have placed reliance on the order passed by a 4 learned Single Judge of this Court in writ petition preferred by the petitioner. This Court, thus, deems it apposite to set out relevant parts of the said order. Paragraph nos. 3 , 4 and 5 of the said order are extracted hereinbelow:- “3. The order of cancellation dated 15.4.2005 was questioned by the petitioner in C.W.J.C. No. 7557/05 and which still remains pending consideration. It is submitted that now the petitioner stands acquitted in the criminal case on 9.2.2007 consequent to the quashing of the same by this Court in Cr. Misc. No. 46614/06 under Section 482 Cr.P.C. 4. The petitioner was placed under suspension and departmental proceedings were also initiated against him. The charges in the police case were common. In the departmental proceeding he has been punished by order dated 1.8.2007. It is settled law that a departmental proceeding and a criminal case do not stand at par and have to be considered on their own merits as the standard of proof of the two proceedings including the nature of evidence etc. are entirely different. The petitioner has not been honourably acquitted in the criminal trial. He did not face trial at all. 5. The petitioner was granted an ad hoc promotion on 3.9.2004. The cancellation of the promotion as on 15.4.2005 was unexceptionable. The quashing of the criminal case does not detract from the punishment in the departmental proceeding which remains a detriment to consideration of his case for promotion till the effect of the punishment lasts. But, after the effect of the punishment loses its force, the petitioner does have a right to be considered for promotion in accordance with law. The mere pendency of a writ petition before this Court questioning a seniority list of assistants prepared in 2009 in which the name of the petitioner does not find place cannot be justified as a speculative ground to deny him consideration. What may or may not happen thereafter is an entirely different issue.” It appears therefrom the fact(s) that the order of ad hoc promotion made in favour of the petitioner stood withdrawn by the 5 order impugned in the present writ petition was/were brought to the notice of the Court. This Court in paragraph no. 5 quoted hereinabove did not disapprove the stand of the respondents in withdrawing /cancelling the ad hoc promotion made in favour of the petitioner. As I have already noticed above that if the order is prejudicial to the interest of the petitioner, then the authorities are/were required to give an opportunity to the petitioner. I have also noticed that the order granting promotion was ad hoc in nature and that the order putting him under suspension was not challenged in any proceeding by the petitioner. It is also apparent from the pleadings on record that pursuant to the order contained in Annexure-5, the petitioner could not discharge the functions of the promoted post of Under Secretary for diverse reasons. In these factual situation, the respondents are required to consider as to whether by passing Annexure-9 any prejudice of any substantial nature has been caused to the petitioner in any manner or not. In the present proceeding petitioner has not been able to demonstrate that persons junior to him have been promoted to any higher post/cadre ignoring the case of the petitioner. There is already positive direction of this Court on a writ petition preferred by the petitioner for considering his case for grant of promotion to the post of Under Secretary within stipulated period. Keeping in view these facts in backdrop, this Court is inclined to dispose of the present application by the following order:- “Let petitioner file a representation before the concerned authority of the Government against the order contained in Annexure-9 6 and demonstrate the prejudice, if any, caused to him by withdrawing the order (Annexure-9). If the authorities are satisfied that the order would cause serious prejudice to the petitioner, then the said respondent shall pass a fresh order in accordance with law. In that event, the order contained in Annexure-9, shall not preclude the respondent from passing a fresh order. Sym ( Kishore K. Mandal, J. )