IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16912 of 2007 Vakil Prasad alias Vakil Rai, son of Sri Janaki Ray, resident of Village Amnabad, Post Office Kateshar, Police Station Bihta, District Patna (Bihar). --------- Petitioner Versus 1. Union of India through the Secretary-cum-Commissioner, Ministry of Defence, New Delhi. 2. Director, General Staff Shakha, Army H.Q., 431 B,Sena Bhawan, New Delhi-110011. 3. Deputy Commandant, General, Infentory (Legal), Army Head Quartr, Sena Bhawan, New Delhi. 4. Brigadior, Bihar Regimental Centre, Danapur Cant, Danapur, Patna. 5. Senior Record Officer, Danapur Cant., Danapur, Patna. 6. Commanding Record Officer, Danapur Cant, Danapur, Patna. 7. Commanding Officer, Bihar Regiment, C.O.-99 APO, Danapur, Patna. --------- Respondents ----------- 3 5.5.2011 Heard learned counsel for the parties. The prayer of the petitioner in this writ application for his being promoted on the post of Naib Subedar with effect from 1999 has been sought to be opposed by the respondents by taking a plea that the petitioner was not only facing criminal prosecution in the year 1999 but, was ultimately also convicted in that criminal case for offence under Section 323 of the Indian Penal Code and was sentenced by way of being released on execution of a bond under provisions of the Probation of Offenders Act. Counsel for the petitioner would submit that if the petitioner could ultimately be 2 given promotion on honorary basis as is clear from the communication dated 21st August, 2003, the respondents could have very well promoted him on the post of Naib Subedar when his such case became due for promotion in the year 1999. In this case by filing of the counter affidavit, the respondents have explained that the petitioner was not entitled for promotion on the post of Naib Subedar since he was facing criminal prosecution since 1992. It has also been alleged that the petitioner had never informed the Army authorities of his being involved in the criminal case of the year 1992 for offence under Section 302/149/323/147 of the Indian Penal Code. The respondents have pointed out that this was done by the petitioner deliberately not only for getting benefit of promotion and other benefits but also to protect himself from facing the Court Martial Proceeding and also continuing in Army Service. In such a counter affidavit, it has also been explained that as a matter of fact, the petitioner had also under gone jail 3 custody for a period of 21.4.1998 to 20.5.1998 and as such, when the case of the petitioner was considered for promotion, it was turned down for non-fulfilling the criteria as laid down in the Army Headquarters’ letter dated 10th of October, 1997. In the counter affidavit it has further been explained that while the petitioner was going to superannuate from service on 28.2.2003, his criminal case was not finalized even up to 3.2.2003 and, in fact, the judgment of the trial court was passed only on 7.2.2003 convicting him for offence under Section 323 of the Indian Penal Code, which again made the petitioner ineligible for promotion to the rank of Naib Subedar. When these facts categorically asserted in the counter affidavit have not been controverted by the petitioner by filing any rejoinder affidavit and this Court has been also informed that the petitioner was later on granted honorary rank of Naib Subedar with effect from 1.3.2003, it would not find the denial of such promotion of the petitioner in the period he was facing criminal prosecution 4 and/or was convicted. If the petitioner has been ultimately given the honorary promotion, he should remain content with it, inasmuch as, even that was not permissible in law on account of his conviction by criminal court. That being so, this application is wholly misconceived and, the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)