IMPORTANT POINT
An employee's right to promotion cannot be denied solely based on the pendency of criminal proceedings; they are entitled to consideration for promotion unless a charge-sheet has been issued.

JUDGMENT :

S.N. PATHAK, J.

Heard the parties.

2. Petitioner has approached this Court for a direction in the nature of mandamus commanding the respondents to grant promotion/ ad hoc promotion to the petitioner subject to final outcome of the Sadar (Town) P.S. Case No. 63/11 corresponding to G.R. Case No. 224/11.

3. Shorn of unnecessary details, the petitioner was appointed on 12.10.1995 to the post of Junior Engineer in the erstwhile State of Bihar under the Building Construction Department. Thereafter, he has worked on the same post for last 28 years to the full satisfaction of the respondent-authorities. During his service tenure he was granted 1st ACP w.e.f. 13.10.2007 vide Office Order No. 440(s) dated 20.01.2017 and 2nd ACP w.e.f. 09.10.2015 vide Office Order No. 441(s) dated 20.01.2017. It is the further case of petitioner that vide Order No. 650(s) dated 23.02.2021, seniority list of Junior Engineers under the control of Road Construction Department was prepared in which the name of petitioner reflects at Sl. No. 826. It is the further case of petitioner that on 07.02.2011, an FIR being Palamu Sadar (Town) P.S. Case No. 63/11 under Sections 409/420 I.P.C. was registered against the petitioner along with two other co-accused, on the complaint of Medical Officer, Police Hospital, Palamu. In the said criminal case, though charges have been framed by the learned Trial Court on 06.08.2019 under Sections 409/420/120(B) but till date no further action has been taken. It is the specific case of petitioner that till date the learned Trial Court has not found the petitioner guilty of the charges but still on the ground of assumption and presumption, the petitioner has been denied the benefits of promotion/ ad hoc promotion and juniors to him in the seniority list have been promoted to the next higher post i.e. Assistant Engineer.

Aggrieved by such action of the respondents, the petitioner has knocked the door of this Court.

4. Ms. Khalida Haya Rashmi, learned counsel appearing for the petitioner submits that petitioner was appointed in the year 1995 and thereafter, served the respondent-Department for 28 long years to the full satisfaction of the respondent-authorities. It has been further argued that one fine morning a criminal case was lodged but the said case was lodged by an outsider and not by the respondent-authorities and due to pendency of the said criminal case, petitioner was never considered for promotion to the post of Assistant Engineer till date.

5. On the other hand, respondents have filed counter-affidavit. Mr. Niraj Kumar Mishra, learned counsel appearing for the respondent-State by vehemently opposing the contention of learned counsel for the petitioner argues that promotion is not a right of an employee. However, there is right for consideration. The case of petitioner has been considered and it has been found that ACRs have not yet been received by the respondents or by the Departmental Promotion Committee for consideration. Admittedly, there is pending criminal case against the petitioner in which charge-sheet has been filed, prosecution sanctioned and as such, till final outcome of the criminal case, the case of petitioner for promotion could not be considered. Justifying the action of the respondents, it has been submitted that as and when criminal case is finalized, the case of petitioner for promotion shall be considered by the respondents.

6. Having heard the rival submissions of the parties across the bar, this Court is of the view that pendency of the criminal case, prolonged for years together, cannot be a ground for rejection of case of an employee for promotion. The employee is entitled for promotion atleast once in the entire service career.

7. In the present case, the petitioner’s case has not been considered rather, withheld on the ground that there is a criminal case pending against the petitioner. From the documents brought on record and from the arguments advanced by the parties, it is admitted that th