JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for a direction upon the respondent-authorities to issue promotion order in favour of the petitioner to the rank of Executive Engineer (Civil) with effect from 26.12.1989, Superintending Engineer (Civil) with effect from 01.10.2002, Additional Chief Engineer (Civil) and Chief Engineer (Civil) from the date, immediate junior to the petitioner, namely, Mr. Ajay Kumar Sinha was promoted to the rank of Chief Engineer (Civil) by notification dated 01.07.2008 with all consequential benefits.

3. The case of the petitioner is that he joined service of the respondents on 31.12.1976 as Assistant Engineer (Civil). The petitioner was made an accused in one criminal case under several provisions of I.P.C. and section 5 (2) of Prevention of Corruption Act and pursuant thereto, the petitioner was put under suspension w.e.f. 08.04.1981. A charge-sheet was issued on 05.01.1982 and finally after completion of departmental proceeding; the disciplinary authority awarded punishment vide resolution dated 09.04.1999.

The further case of the petitioner is that since the departmental proceeding as well as criminal case was pending against this petitioner, several junior were granted selection grade in the rank of Assistant Engineer, however, one post was kept reserved for the petitioner. Subsequently, a person junior to the petitioner, namely, Ajay Kumar Sinha was promoted to the rank of Executive Engineer with effect from 26.12.1989. Learned counsel further submits that whenever any promotional order was issued, one post was kept reserved for this petitioner.

4. Mr. D.K.Dubey, learned counsel for the petitioner draws attention of this Court towards the notification dated 25.10.2000 and submits that pursuant to the judgment passed by the Patna High Court, a seniority list of Assistant Engineer (Civil) was published in which the name of the petitioner stands at Sl. No. 10, whereas the person junior to him stand at Sl. No. 13 and in that view of the matter he is entitled for promotion when the criminal proceeding pending against the petitioner was quashed as the said junior-Ajay Kumar Sinha has been promoted to the rank of Superintending Engineer and to that effect, a notification was also issued.

5. Mr. Dubey further submits that the departmental proceeding initiated against this petitioner came to an end in the year, 1999 whereby the petitioner had been inflicted punishments. He further referred to the order passed in W.P.(S) No. 6431 of 2002 and submits that the petitioner had earlier filed a writ application praying for a direction upon the respondents to allow him entire promotional benefits, however, the said writ application was dismissed. Being aggrieved, the petitioner challenged the aforesaid order in letters patent appeal which was decided in favor of this petitioner. He further submits that the Division Bench of this Court in the operative portion has submitted that since the matter is being investigated, promotion can be considered subject to the result of investigation or subject to the result of criminal case.

Relying upon the aforesaid judgment, Mr. Dubey contends that his case for promotion can be considered since the criminal case is pending since long and the petitioner is on death bed and the law is very clear that if any criminal case or departmental proceeding is pending, the respondent has to adopt the sealed cover procedure. However, in the instant case the respondent has failed to adopt the same.

6. Mr. Dubey further draws attention towards the order passed by the Hon’ble Apex Court in Criminal Appeal No. 138 of 2009 and submits that in one of the vigilance case which was lodged against this petitioner, the petitioner filed an application under 482 before the High Court for quashing of th