Judgment Radha Mohan Prasad, J. 1. By this writ petition the petitioner prays for issuance of an appropriate writ/order or direction commanding the respondents to promote him on the post of Chief engineer with effect from the date when his Juniors have been promoted as Chief Engineer in the same Depart-ment and further, for a direction to the respondents to grant all legal and consequential benefits including the financiai benefits attached to the post and to pay the arrears as well as current salary forthwith and also for any other relief or reliefs, for which the petitioner is entitled in the facts and circumstances of the case. 2. The petitioner entered the service of the then Irrigation Department, now water Resources Department in the year 1960 as an Assistant engineer and subsequently was promoted to the post of Executive Engineer in the year 1974 and to the post of Superintending Engineer in the year 1990 with effect from 1986. It is stated that in the year 1992 the name of the petitioner was considered for promotion to the out of Chief Engineer and before taking final decision the vigilance Clearance was sought for on 21-6-92 from the Vigilance Department. It is alleged that the Vigilance department, instead of according clearance for promotion of the petitioner initiated a case against him on 24-6- 92 bearing Vigilance P. S. case no.27/92 under section 13 of the prevention of Corruption Act only to debar him from promotion on the post of Chief Engineer, which is still pending against him. According to the petitioner, on 29-9-92 the Vigilance department sent report that a vigilance case is pending against him and as such, his case was not considered by the departmental Promotion Committee, even though no charge-sheet was submitted against him till that date. On 17-11-94 the petitioner was placed under suspension in connection with the said vigilance case and subsequently, a departmental proceeding was also initiated against him. On 21-11-94 some of this juniors were promoted on the post of Chief Engineer vide annexure-2. 3. The petitioner moved this court against the order of suspension and also prayed for direction to consider his case for promotion in C. W. J. C. No.11516 of 94, which was finally disposed of, vide order dated 16-2-95 con-tained in annexure-3. On 21-11-94 some of this juniors were promoted on the post of Chief Engineer vide annexure-2. 3. The petitioner moved this court against the order of suspension and also prayed for direction to consider his case for promotion in C. W. J. C. No.11516 of 94, which was finally disposed of, vide order dated 16-2-95 con-tained in annexure-3. The Court directed the respondent No.1 to start departmental proceeding against the petitioner by framing charge (s) and serve the same oh him. The Court further directed that the petitioner will take part in the departmental proceeding, which shall be concluded as early as possible, preferably within a period of four months and that if the petitioner did not choose to co-operate in the departmental proceeding, it will be open to the respondent to conclude the same. Further, it was ordered that if the departmental proceeding was not concluded within the aforesaid time, the order of suspension will automatically stand revoked, but it will be open to the respondent-State to proceed with the departmental proceeding thereafter. With regard to the grievance of the petitioner relating to promotion, the Court directed that the matter may be dealt separately. Thereafter the charges were framed against the petitioner and be submitted his show cause, but the proceeding was not concluded despite his co-operating in the enquiry, as claimed by him. After the expiry of four months the petitioner submitted his joining on 28-6-95 which was not accepted and the petitioner moved this Court in M. J. C. No.1686 of 95 for initiating contempt proceeding. Thereafter the Joint Secretary of the department (respondent No.4) vide memo No.1812 dated 29-8-95 communicated \ the government order revoking the order of the suspension of the petitioner from 24-6-95 in view of the order passed by this Court in the writ case. On the same date, by another order departmental proceeding was stayed till the disposal of the criminal case. The contention of the petitioner is that respondent-State cannot debar him from promotion pending-disposal of criminal case. The petitioner also alleged that in similar circumstance the department promoted one Shyamnan-dan Pd. Sharma (retired) to the post of chief Engineer with effect from 1-2-93, though criminal case was pending against him. Under the aforementioned circumstances, the petitioners has alleged hostile and discriminatory attitude of the department in the matter of promotion of the petitioner, which has been withheld since 1992. 4. Sharma (retired) to the post of chief Engineer with effect from 1-2-93, though criminal case was pending against him. Under the aforementioned circumstances, the petitioners has alleged hostile and discriminatory attitude of the department in the matter of promotion of the petitioner, which has been withheld since 1992. 4. A counter-affidavit has been filed on behalf of the respondents, in which it is admitted that the petitioner become eligible for consideration for promotion to the post of Chief Engineer on 1-2-93, i. e. the date when his juniors have been promoted to the said post. But this case was kept pending in view of the non-clearance by the vigilance till the pendency of the matter against him and a post was also kept reserved for him. It is alleged that in course of review of the report of the vigilance it was found that apart from vigilance P. S. case No.27 of 92 two more enquiry reports of Cabinet Vigilance department are pending gains the -petitioner for various acts of omissions and commission committed during his tenure as Executive Engineer Irrigation, pakri Barawan, Nawadah. Accordingly, the department took decision that the vigilance matters pending against the petitioner be disposed of expeditiously and this promotion be kept in abeyance till the finalisation of all such matters. The allegation of mala fide has been denied and it is stated that the promotion of the petitioner shall depend upon the outcome of the vigilance matters which are under expeditious disposal at the departmental level. In paras 6 and 11 of the counter affidavit it is stated that it is mandatory to obtain vigilance clearance of all such officers, who come within the purview of consideration of promotion and that no person can be promoted to the next higher rank without clearnce of the d. P. C. for which vigilance clearance is essential. 5. As regards the hostile discrimination, it is stated in the counter affidavit that Sri Shyamandan Pd. Shar-ma was accorded promotion to the rank of Chief Engineer after getting clearance from the Vigilance Department as there was no prima facie proved charge against him at that point of time. In support of this the respondents have brought no record photo copy of the letter of the Vigilance department dated 29th August, 92 (annexure-A ). 6. Shar-ma was accorded promotion to the rank of Chief Engineer after getting clearance from the Vigilance Department as there was no prima facie proved charge against him at that point of time. In support of this the respondents have brought no record photo copy of the letter of the Vigilance department dated 29th August, 92 (annexure-A ). 6. In the rejoinder affidavit filed on behalf of the petitioner it is alleged that the petitioner has been victimized in the instant case, which is apparent from the fact that the recommendation made by the Departmental Promotion committee has been ignored and has not been brought on record by the respondents of this case. It is thus, contended that withholding of promotion of the petitioner on the ground of non-consideration of the pendency of a criminal case is violative of Articles 14, 21 and 311 (2) of the Constitution of india since there is no rule framed to debar him from being considered on the promotional post only on the ground that certain charges are pending against him. 7. A supplementary affidavit has also been filed on behalf of the petitioner, in which it is stated that during the pendency of the writ-petition the petitioner was posted as Superintending Engineer at Darbhanga vide memo No.620 dated 17-5-96 and that after joining the said post he was served with memo of charges vide memo no.1256 dated 28-6-96 with respect to the allegation of the year 1980-1981, which was already finalized by the authorities concerned. Thereafter the petitioner retired on 31-7- 96, but no post-retirement benefit has been granted to him, nor any legal dues has been paid to him. Under the said circumstances, a prayer has been made to amend the portion of the writ-petition in the following manner: (I) That the petitioner was entitled for his promotion from the date of his juniors were granted promotion. (ii) That the promotion of the petitioner was withheld on the ground that a Vigilance case has been instituted against him though till date no charge sheet final form has been submitted against the petitioner on the date when the departmental promotion committee was considering the case of the petitioner for promotion. Even till now no charge-sheet has been submitted by the Vigilance department against the petitioner. Even till now no charge-sheet has been submitted by the Vigilance department against the petitioner. (iii) that any departmental proceeding for allegations against the petitioner is vitiated in the eye of law if the same has been decided either this way or that way no earlier occasion. (iv) That any allegation against the petitioner connected with any earth work or allocation of work cannot be subject-matter of dispute either on the ground of measurement or on the ground of absence of the petitioner and any order/finding/enquiry is subject to strict proof of and satisfaction of Article 311 (2) of the Constitution of India. " 8. Further, in para 11 of the supplementary affidavit the petitioner has also prayed for redressal of his grievance relating to payment of post-retrial dues as early as possible: - 9. The question for consideration is as to whether the petitioner is entitled for promotion on the post of Chief Engineer with effect from a date when his juniors were promoted during the pendency of the vigilance case and/or departmental proceeding and further, that whether any relief with respect to payment of post-retiral dues can be granted to him during the pendency of vigilance enquiry. The learned Counsel for the petitioner submitted that the promotion and/or payment of post-retiral dues can only be withheld in a case where the charge levelled against the employee has been prima facie found proved anl not that merely because enquiry into criminal charge is pending and due to the same departmental proceeding is stayed. 10. On other hand, the learned a. A. G. III appearing on behalf of the respondents submitted that in view of the various government circulars relating to promotion the employee cannot be given promotion unless a clearance is given by the Vigilance Cell of the cabinet Vigilance Department and/or where a departmental proceeding initiated and pending against him. Admittedly, the departmental proceeding was initiated against the petitioner and the vigilance case has also been instituted. Thus, according to him, the petitioners case for promotion has rightly been kept in abeyance till the disposal of the said matters. Admittedly, the departmental proceeding was initiated against the petitioner and the vigilance case has also been instituted. Thus, according to him, the petitioners case for promotion has rightly been kept in abeyance till the disposal of the said matters. As regards post-retiral dues, the learned A. A. G. III submitted that in view of the provisions contained in Rules 43 (b) and 139 of the Bihar Pension Rules the State Government has power to withhold full payment of pension and gratuity and as such, the petitioner after his retirement can claim pension besides other post-retiral dues in accordance with rules/govt. Circulars relating to the same, only after the disposal of the aforementioned charges pending against him. 11. I am unable to accept the last submission of the learned A. A. G. III. It is true that under rule 43 (b) and/or 139 of the Bihar Pension Rules, the State government has been vested with the power to withhold or withdraw a pension and also that have right to order recovery from a pension of the whole or part of any pecuniary loss caused to government if the officer is found in a departmental or judicial proceeding to have been guilty of grave misconduct or has caused pecuniary loss to Government by misconduct or negligence during his service including the service rendered on re-employment after retirement. But the order for recovery cannot be made unless an officer is found in departmental or judicial proceeding to be guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service. It is not the case of respondents that the departmental proceeding initiated against the petitioner was continued by some specific order passed either immediately before his superannuation or thereafter within a reasonable time. As such, in view of the law laid down in the case of Ram Ekbal sharma Vs. The State of Bihar and Ors. (C. W. J. C. No.2231 of 1995) desposed of on 17th October, 1996 the departmental proceeding cannot be held to be still pending and/or continuing after the retirement of the petitioner from service unless specific order in that regard is passed by the competent authority. 12. The State of Bihar and Ors. (C. W. J. C. No.2231 of 1995) desposed of on 17th October, 1996 the departmental proceeding cannot be held to be still pending and/or continuing after the retirement of the petitioner from service unless specific order in that regard is passed by the competent authority. 12. However, rule 139 of the Bihar pension Rules provides that the full pension admissible under the Rules is not to be given as a matter of course, or unless the service rendered has been really approved. If the service has not been thoroughly satisfactory, the authority sanctioning the pension has been vested with the power to make such reduction in the amount as it thinks proper. Further, under its clause (c) the State Government has been vested with the power of revising an order relating to pension passed by subordinate authority under their control. If they are satisfied that the service of the pensioner was not thoroughly satisfactory, or that there was proof of grave misconduct on his part while in service. But this power is to be exercised only after giving the pensioner concerned a reasonable opportunity of showing cause and not after the expiry of three years from the date of the order sanctioning the pension was first passed. The State Government, vide its circular contained in memo No. FC-11-40-28/74/8144-F, dated 22.8.74 has laid down that where any departmental or judicial proceeding is instituted under rule 43 (b) of the Bihar Pension Rules or departmental proceeding is continued against an officer who has retired on attaining the age of compulsory retirement, or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding, final orders are passed 75 per cent provisional pension of the pension which would be admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until conclusion of such proceeding and the issue of final orders thereon. The payment of provisional pension is to be adjusted against the final retirement benefits, but no recovery is to be made where the pension finally sanctioned is less than the provisional or the pension is reduced or withheld either permanently or for a specific period. The grant of such pension is not to prejudice operation of rule 139 where final pension is sanctioned upon the conclusion of the proceeding. The payment of provisional pension under the circular dated 22.8.74 has been considered as mandatory by the State government while clarifying/re-iterating vide memo No. PC-11 -40-98/74-11261-F, dated.31.10.74. 13. The learned Counsel for the petitioner contended that the payment of provisional pension at the rate of 75 percent has been increased to 90 percent. No such circular of the State government has, however, been brought to my notice. However, under the said circumstances, the petitioner cannot be denied the payment of provisional pension at the prevailing rate, as is admissible under the rules during the pendency of the enquiry by the Vigilance Department, which shall be subject to adjustment in the light of the aforementioned Government circular. 14. The State Government, vide appointment Department Circular contained in memo No.3/r 1-107/71-7463-M, dated 22nd April, 1972, laid down the provision for constitution of the standing Promotion Committee consisting of senior officers in every department for consideration of the cases of promotion of the officers in the department in anticipation of the consideration by the Bihar Public Service commission. Further, instructions regarding the constitution and function of the Departmental Promotion Committee was also issued laying down the functioning of the Departmetnal promotion Committee and its association with the Bihar Public Service Commission, the procedure to be observed by it for dealing with the cases of promotion to selection post and non-selection post and guidelines for assessment also besides the general instructions issued to it. Annexure to the said instructions contained the proforma for referring the proposal for promotion to the D. P. C. meeting. The character Rolls and integrity certificate have also got to be enclosed along with the proforma, which evidently are to be taken into account for dealing with the cases of promotion. 15. Annexure to the said instructions contained the proforma for referring the proposal for promotion to the D. P. C. meeting. The character Rolls and integrity certificate have also got to be enclosed along with the proforma, which evidently are to be taken into account for dealing with the cases of promotion. 15. It is true that unless the authority prima facie finds the allegation/charges to be true against the officer concerned the same will not come in the way for consideration of his case for promotion as is laid down by the state Government vide personal departments Resolution No.21c 3-8-16/72-6565, dated 1st May, 1973, but in the instant case I find that infact, the authority was prima fade satisfied with respect to the charges against the petitioner, upon which charge-sheet was served on him and a departmental proceeding had been initiated. Further, i find that the vigilance enquiry is also going on. It is not the case of the petitioner that in the departmental enquiry nothing was found against him. Under such circumstances, even assuming that no departmetnal proceeding was continuing after his retirement, in my opinion, this Court, while exercising its discretionary jurisdiction will refrain from granting any relief to the petitioner in the matter of grant of promotion, as claimed by him. However, in the aforementioned circumstances, in my opinion, the authorities concerned should expedite the disposal of the vigilance enquiry and/or a departmental proceeding if continued in the light of the decision of this Court in the case of ram Ekbal Sharma Vs. The State of bihar (C. W. J. C. No.2232/95, disposed of on 17.10.96 ). 16. Accordingly, the writ-petition is disposed of with the direction to the respondents-authorities to expedite the vigilance enquiry and/or departmental enquiry, if any pending against the petitioner and conclude the same within a period of four months from the date of receipt/production of a copy of this judgment/order. In the meantime, the respondents-authorities are directed to release the provisional pension, as per various government circulars to the petitioner within a fortnight of the receipt/production of a copy of this judgment/order and continue to pay the same till disposal of the vigilance enquiry/case, if any, and/or departmetnal enquiry, whereafter the respondents-authorities shall take final decision with respect to payment of his post-retiral dues finally accordingly and in accordance with law. Order Accordingly.