The main legal point established in the judgment is that the conditions for regular promotion under 2003 A.C.P. Rules do not apply to A.C.P. under 2010 A.C.P. Rules, and the sealed cover procedure under the Circular dated 11.09.2002 applies to regular promotion and not to A.C.P. after 01.01.2009.

SHIVAJI PANDEY, J.

1. In the present case, the petitioner is seeking relief of Assured Career Progression (A.C.P.) as he was promoted to the post of Executive Engineer in the year 1986 but wrongly the order has been passed on the assumption of proposed punishment, claiming order vide memo No. 7802 (E)/Patna dated 29.11.2012 be quashed as it is based on wrong recording of facts.

2. The shorts facts of this case are that the petitioner was appointed as Assistant Engineer in Public Works Department on 18.8.1965. In the year 1996, he was promoted to the post of Executive Engineer and posted to Building Construction Department at Building Division, Gardanibagh, and ultimately superannuated from the service on 21.01.2002.

3. The claim of the petitioner is that he is at least entitled to the first A.C.P. in terms of 2003 A.C.P. Rules, later on, which was modified or amended in the year 2006. As has been claimed that the petitioner has been deprived of the first A.C.P. as in the impugned order it has been mentioned the benefit of A.C.P. has not been given on account of proposed punishment.

4. From the counter Affidavit, it appears that on 18.10.2010, the Screening Committee considered the case of the petitioner and rejected the same on the ground of proposed punishment, which is completely incorrect as it was found by the Department that the Screening Committee has wrongly recorded the fact of proposed punishment on him. Later on, another Screening Committee considered the case of the petitioner on 20.08.2013 and not granted the benefit of A.C.P. on the ground of adverse vigilance report, which is apparently clear from Annexure-B. It further appears that during the period 1990-91, when the petitioner was posted in the concerned Department an F.I.R. was lodged against him for misappropriation of Rs.50 lakhs. The Vigilance Department registered a case against the petitioner being Gardanibagh P.S. Case No. 208 of 2008. As per the statement mentioned in the Supplementary Counter Affidavit, the charge sheet vide charge-sheet No. 64 of 2013 has been filed against the petitioner under Section 407, 406, 467, 471 and 120(B) of the Indian Penal Code.

5. Learned counsel for the petitioner submits that the petitioner was entitled to the first A.C.P in the year 1999 as he completed 12 years of service from 1986 and even on the date of superannuation there was nothing against the petitioner, which may disentitle him from the benefit of the first A.C.P. He further submits that after lapse of long time, the petitioner was served the impugned order, wherein wrong fact has been recorded that he has been deprived of the benefit on account of proposed punishment, which is incorrect fact and apparently clear from the Supplementary Counter Affidavit of the State itself, as in the year 2010 there was no order of proposed punishment against the petitioner and in the year 2013 the petitioner has wrongly been deprived of the benefit on account of adverse vigilance report.

6. Learned counsel for the petitioner submits that the sealed cover procedure will be applicable only when either the charge sheet has been filed in a criminal case or in a departmental proceeding the charge sheet has been served upon the employee concerned. In the present case, the Department has never initiated any proceeding against the present petitioner, but placing reliance on the criminal case, in which admittedly upto the year 2010, no charge sheet was filed against the petitioner and only on 19.03.2013 as per the learned counsel for the State charge sheet has been served upon him.

7. In support of his contentions, learned counsel for the petitioner has placed reliance on the following judgments:-

(i) Union of India and Others vs. K.V. Jankiram and Others, reported in (1991) 4 SCC 109

(ii) Subodh Bihari Sahay vs. The State of Bihar & Anr. reported in 2005 (4) PLJR 162

(iii) The State of Bihar vs. Bishan Singh Jayat, reported in 2002 (3) PLJR 610

(iv) Bank of India and another vs. Degal