IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16044 of 2009 1. UMESH KUMAR SINHA S/O LATE RAM KRIPAL RAJAK VILL- CHAKALMA, P.S. MASAURHI, DISTT. PATNA Versus 1. THE STATE OF BIHAR 2. DIRECTOR GENERAL CUM INSPECTOR GENERAL OF POLICE GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 3. I.G. (C.I.D.) GOVT. OF BIHAR, PATNA 4. COMMISSIONER CUM SECRETARY DEPTT. OF HOME, GOVT. OF BIHAR, PATNA ----------- 2. 4.1.2010 Heard learned counsel for the petitioner and the State. The claim in this writ application is for substantive promotion to the post of Additional Director with effect from 17.3.1990 and to the post of Director with effect from 1995 in the Forensic Science Laboratory. Learned counsel for the petitioner submits that even while the petitioner was asked to discharge duties of Additional Director and Director for long years on ad-hoc basis and even presently continued to discharge duties of Additional Director, he has been denied consideration for substantive promotion. In C.W.J.C. No. 10406 of 1998 disposed on 22.4.2004 for the same relief, this Court had noticed the objection of the respondents that on account of some criminal charge against the petitioner for an F.I.R. lodged in 1999 and prosecution sanctioned in 2003, his case was 2 not being considered notwithstanding availability of vacancy and his eligibility when directions were given to consider his case for promotion. In M.J.C. No. 1579 of 2004 filed for non-compliance of the order, the respondents resorted to the sealed cover procedure in view of certain pending enquiries and which now becomes non est on other administrative grounds by virtue of a subsequent letter dated 30.11.2006 written to the Lokayukta by the Home (Special) Department making the other administrative charge non-existent. The last submission is that in any event of the matter the claim for promotion is from 1990 and 1995, a period during which admittedly there was no criminal charge against the petitioner. Learned counsel for the State opposing the application submits that the consideration for promotion shall have to abide by the direction of the competent criminal Court on the pending criminal charge. This Court in C.W.J.C. No. 10406 of 1998 noticed the fact that notwithstanding the alleged criminal charge he has been allowed to work as an Additional Director as well as Director on ad-hoc basis and that there was nobody above him. Directions to consider his case for promotion came to be issued in that background. Even if the respondents were right in 3 resorting to sealed covered procedure, on facts, that becomes irrelevant in view of the departmental letter dated 30.11.2006 addressed to the Lokayukta that the petitioner was not liable for any administrative action as there was no pendency of any house rent allowance drawn against him. That leaves only the criminal charge. It has been noticed above that the claim for promotion rests to the post of Additional Director from 1990 and to the post of Director from 1995. During the period there was no criminal prosecution against him which has been instituted subsequently in the year 1999 only and prosecution sanctioned in 2003. This Court upholds the objection on behalf of the petitioner that the pendency of the criminal charge, additionally after a period of two years from the eligibility for promotion cannot be a bar under departmental circular dated 11.9.2002 at Annexure-5 item-6. A finding has already been arrived at C.W.J.C. No. 10406 of 1998 that “ in the counter affidavit, this fact is admitted that persons above the petitioner have already retired and he is the senior most in the cadre”. The respondents are now directed to consider the case for substantive promotion to the post of Additional Director and Director, in accordance with 4 law, keeping in mind the non-availability of the administrative ground in view of the departmental letter dated 30.11.2006 addressed to the Lockyukta and the Government circular dated 11.9.2002 in so far as the criminal charge is concerned, with all consequential benefits of such promotion, within a maximum period of three months from the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar (Navin Sinha, J.)