JUDGMENT NAGENDRA RAI, J. 1. Originally the petitioner has filed the present application for quashing the notification issued by the Building Construction and Housing Department (hereinafter referred to as the Housing Department) dated 17.3.1997 and the consequential order passed by the Managing Director of the Bihar State Housing Board (hereinafter referred to as the Board) dated 28.3.1997 issued under the signature of the Secretary of the Board by which Deo Sunder Paswan (respondent no. 3) has been posted as Incharge Chief Engineer of the Board and to promote the petitioner to the post of Chief Engineer of the Board in the light of the direction issued by this Court vide order dated 6.1.1997 passed in CWJC No. 11299 of 1994. True copies of the aforesaid orders have been annexed as Annexure 1 & 2 respectively. Subsequently, by filing supplementary affidavit on 26.6.1997 the petitioner has made a prayer to quash the orders contained in Annexure-B dated 1.3.1997 by which the Committee of the Bihar Public Service Commission found the petitioner fit for promotion to the post of Superintending Engineer w.e.f. 10.2.1995 provided he is exonerated in the departmental proceedings initiated vide departmental letters no. 125/84/1530 dated 6.11.1990 and memo no. 720 dated 3.4.1997 (Annexure-E). 2. Before stating the respective stands taken by the parties, I will state the facts which are not in dispute. In the year, 1964 the Public Service Commission recommended the name of the petitioner for appointment to the post of Engineer and on the basis of which on 25.7.1964 the petitioner was appointed as Assistant Engineer in the Housing Department and in pursuance of that he joined and he was confirmed on 18.8.1966, vide order issued on 27.11.1967. Two persons Narad Prasad Sinha and Anand Kumar Singh though recommended by the Commission alongwith the petitioner joined subsequently to the petitioner as an Assistant Engineer in the Housing Board. In 1971 aforesaid Narad Prasad Sinha and Anand Kumar Singh were promoted as Executive Engineer. The petitioner filed a writ application being CWJC No. 949 of 1971 for consideration of his case for promotion after quashing the promotion given to the aforesaid two persons to the post of Executive Engineer. The said writ application was finally disposed of on 6.5.1976. While the writ application was pending the petitioner was promoted as Executive Engineer Class I in June, 1975. The said writ application was finally disposed of on 6.5.1976. While the writ application was pending the petitioner was promoted as Executive Engineer Class I in June, 1975. This Court taking note of the aforesaid fact found that the only question of inter-se seniority between the petitioner and the aforesaid two persons was in controversy and accordingly this Court ordered that if any occasion arises in future for promotion of the petitioner or any of the aforesaid two persons the State Government would decide their inter-se seniority on consideration of the entire facts and circumstances relating to their cases and in accordance with the rules applicable to them before passing a final order of promotion of anyone of them. A copy of the said judgment has been annexed as Annexure-16 to the rejoinder filed by the petitioner to the counter affidavit of respondents on 27.6.1997. 3. In 1972 the State of Bihar constituted the Bihar State Housing Board wherein the services of the petitioner and other officials were placed at the disposal of the Board in terms of the notification issued in this regard. The Board in its meeting dated 21.9.1972 created two posts of the Superintending Engineer which was approved by the State Government in the year 1974, out of which one post was reserved for the Scheduled Caste and Scheduled Tribe employee. From September, 1972 to December, 1972 Officers of the Public Works Department were posted on deputation on both the posts of Superintending Engineer as no officer of the Board was eligible for that post. 4. On 4.1.1978 Narad Prasad Sinha was promoted to the post of Superintending Engineer against the first vacant post and his promotion was regularised w.e.f. 25.5.1978. Said Narad Prasad Sinha later on was made Incharge Chief Engineer and thereafter he superannuated on 28.2.1997. On 22.9.1990 the second post which was reserved for Scheduled Caste/Scheduled Tribe was filled up by an order of the Board by which respondent no. 3 was promoted to the post of Superintending Engineer w.e.f. 6.4.1989. Aforesaid Anand Kumar Singh challenged the promotion of respondent no. 3 in CWJC No. 2584 of 1990 in which respondent no. 3 of the present case was respondent no. 6. The said writ application was finally allowed by a Division Bench of this Court on 4th February, 1992. A copy of the said judgment has been annexed as Annexure-13 to the supplementary affidavit. 3 in CWJC No. 2584 of 1990 in which respondent no. 3 of the present case was respondent no. 6. The said writ application was finally allowed by a Division Bench of this Court on 4th February, 1992. A copy of the said judgment has been annexed as Annexure-13 to the supplementary affidavit. This Court quashed the order dated 22.9.1990 granting promotion to the respondent no. 3 on the ground that after three years the Board could not have carried forward the reserved post after a period of three years during which the recruitment to the said post could not have been made and accordingly in the year 1990 when the promotion was given to the respondent no. 3 the said vacancy should not be considered to be a reserved post as it would amount to 100% reservation and that would run counter to the law laid down by the Supreme Court in various decisions. Thereafter, this Court directed to consider the case of the petitioner alongwith other candidates for promotion to the post of Superintending Engineer and thereafter, the case of promotion was considered and Anand Prasad Sinha was granted promotion w.e.f. 6.10.1981 and said Anand Pd. Sinha also superannuated on 31.7.1992. 5. The post of Technical Secretary to the Chief Engineer which was in the rank of Executive Engineer was upgraded to the post of Superintending Engineer by the Government vide its order dated 25.9.1995 and in pursuance of that the Board upgraded the post of Technical Secretary to the post of Superintending Engineer by its order dated 25.1.1997 w.e.f. 1.4.1991. A copy of the said order has been annexed as Annexure 3/A to the counter affidavit filed on behalf of the respondent no. 3. 6. In the year, 1994 the petitioner came to this Court in CWJC No. 11299 of 1994 making a grievance that post of Superintending Engineer is vacant but his claim for promotion to the said post is not being considered by the Board and this Court finally disposed of the said writ application on 6.1.1997 with a direction to the Board as well as the State Government to consider the case of the petitioner alongwith other candidates for promotion in accordance with law within a period of six week from the date of receipt/production of a copy of this order. A copy of the said order has been annexed as Annexure-3 to the writ application. When aforesaid direction was not carried then the petitioner tiled a contempt application and in the meantime the impugned orders dated 17.3.1997 and 28.3.1997 have been passed by which the respondent no. 3 has been made Incharge Chief Engineer and the petitioner has been given promotion by the departmental promotion committee w.e.f. 10.2.1995 vide Annexure-B provided he is exonerated in the departmental proceeding of forgery vide Annexure-E dated 3.4.1997, as stated above. 7. In August, 1982 the petitioner was made Technical Secretary to the Chief Engineer and was also made Incharge Superintending Engineer of Ranchi Circle. On 22.3.1986 the petitioner was suspended. Thereafter, he challenged his suspension order in CWJC No. 8918 of 1993 and the said writ application was finally disposed of on 12.1.1994. A copy of the said order has been annexed as Annexure-3/C to the counter affidavit of respondent no. 3. This Court taking note of the fact that a longer time has elapsed and no steps have been taken to conclude the enquiry against the petitioner quashed the order of suspension. However, it was observed that the Government will proceed with the enquiry. In pursuance of that the department revoked the suspension order on 6.5.1994 and thereafter the petitioner was again made Superintending Engineer and thereafter, as stated above, he came to this Court in CWJC No. 11299 of 1994 which was disposed of on 6.1.1997 with a direction to consider the case of the petitioner. 8. The respondent no. 3 was appointed as an Assistant Engineer by the Board on 5.4.1975 and was promoted to the post of Executive Engineer from amongst the reserved category employees according to the roster system w.e.f. 6.4.1982 and thereafter he was promoted to the post of Superintending Engineer as a reserved category candidate w.e.f. 1.4.1991 vide notification dated 28.9.1996, a copy of the same has been annexed as Annexure-3/B to the counter affidavit filed by the respondent no. 3. Prior to that he was officiating as Superintending Engineer. 9. The case of the petitioner is that he joined the service earlier to the respondent no. 3 and he is senior to the respondent no. 3 as Assistant Engineer as well as Executive Engineer. 3. Prior to that he was officiating as Superintending Engineer. 9. The case of the petitioner is that he joined the service earlier to the respondent no. 3 and he is senior to the respondent no. 3 as Assistant Engineer as well as Executive Engineer. In seniority list of Assistant Engineers published in 1983, a copy of which has been annexed as Annexure-9 to the writ application, the petitioner was at serial no. 1 whereas respondent no. 3 was at serial no. 26. The gradation list of Executive Engineers Class I was also published on 25.2.1993 vide Annexure-12 to the supplementary affidavit and in the said list also the petitioner was at serial no. 3 whereas respondent no. 3 was at serial no. 9 and ignoring his rightful (sic) respondent no. 3 has been wrongly promoted as Superintending Engineer and has also wrongly been made as Incharge Chief Engineer. 10. The case of the respondent Housing Board is that respondent no. 3 was posted as officiating Superintending Engineer of the Ranchi Circle vide order dated 26.12.1983. He was promoted to the post of Superintending Engineer on the recommendation of the Public Service Commission with the approval of the Housing Department after the roster clearance by the department of Finance w.e.f. 1.4.1991 against the reserved quota vide notification dated 28.9.1996. The petitioner was made officiating Superintending Engineer vide order dated 14.5.1994. The post of Chief Engineer is not the cadre post rather it is selective post and appointment is made by the State Government in exercise of power under section 16(2) of the Bihar State Housing Board Act. The State Government by way of an interim arrangement has made respondent no. 3 as Incharge Chief Engineer in addition to his own duty by the impugned order contained in Annexure-1. The case of the petitioner has been considered in terms of the direction issued by this Court dated 6.1.1997 in CWJC No. 11299 of 1994 and the departmental promotion committee has recommended for his promotion w.e.f. 10.2.1995 subject to the exoneration in the departmental proceeding. It is further stated that respondent no. 3 has been rightly promoted to the post of Superintending Engineer and as he being the senior most in the department has been given temporary charge of Chief Engineer. In the Supplementary counter affidavit it is stated that Narad Pd. It is further stated that respondent no. 3 has been rightly promoted to the post of Superintending Engineer and as he being the senior most in the department has been given temporary charge of Chief Engineer. In the Supplementary counter affidavit it is stated that Narad Pd. Sinha was the Incharge Chief Engineer w.e.f. 25.3.1994 till his superannuation on 28.2.1997. Said Narad Prasad Sinha was the general category candidate and he held the aforesaid post at roster point no. 1 and after his superannuation the said post fell vacant at roster point no. 2 which is reserved for Scheduled Caste/Scheduled Tribe candidate. Respondent no. 3 being Scheduled Caste and being senior most Superintending Engineer was considered by the State Government for promotion as Incharge Chief Engineer and after proper consideration the State Government appointed him as Incharge Chief Engineer. It is further stated that the respondent no. 3 was promoted to the post of Superintending Engineer as per roster rule and the petitioner did not challenge his promotion to the post of Superintending Engineer. 11. The case of the State Government as appears from the counter affidavit is that the petitioner is still functioning as Executive Engineer and he has not been promoted as Superintending Engineer and the order of promotion will be issued in his case in terms of the recommendation of the departmental promotion committee provided he is exonerated in the departmental proceeding and that promotion will be granted w.e.f. 10.2.1995. The respondent no. 3 being the senior most Superintending Engineer has been made Incharge Chief Engineer and there is no illegality in the said order. It is further stated that the petitioner was suspended while he was working as Executive Engineer-Cum-Technical Secretary to the Chief Engineer for various omissions and commissions. He did not pay the rent of the house. He illegally occupied the house for a long time and at the same time received House Rent allowance from the Board. He also committed forgery in an arbitration proceeding and a departmental proceeding has been initiated against him vide Annexure-E to the counter affidavit of the State. He did not pay the rent of the house. He illegally occupied the house for a long time and at the same time received House Rent allowance from the Board. He also committed forgery in an arbitration proceeding and a departmental proceeding has been initiated against him vide Annexure-E to the counter affidavit of the State. The said forgery was brought to the notice of the State Government on 20.3.1997 from the Board and thereafter the departmental proceeding was initiated against him vide Annexure-G. It is also stated that the petitioner has vacated the quarter in terms of the order passed by this Court while vacating his order of suspension but he continued to receive as House Rent allowance from the Board despite being in possession of more than one houses of the Board free of cost and for which he is facing a departmental proceeding. Further case is that the respondent no. 3 has been promoted against the reserved post for Scheduled Caste which he was entitled under the rule of roster to be considered for promotion on the third post of Superintending Engineer. There were two regular posts of Superintending Engineers in the Housing Board and under the rule of roster the second post was reserved for the member of the Scheduled Caste but the second post was given to the general category candidate w.e.f. 1.10.1981 as respondent no. 3 was not eligible at that point of time for promotion. The post of Technical Secretary to the Chief Engineer was upgraded in the rank of Superintending Engineer w.e.f. 1.4.1991, according to the Government Circular dated 19.7.1985. The relevant circular provides that if the reserved category post is fulfilled by the general category candidate then the next vacancy for which the general category candidate is to be considered will be treated as post for the reserved category candidate according to the Government resolution no. 716 dated 15.12.1982. Accordingly, the third post, a general category post became reserved category post and respondent no. 3 being eligible was promoted to the said post and the petitioner cannot claim promotion to the said reserved post as he being the general category candidate. 12. The case of the respondent no. 716 dated 15.12.1982. Accordingly, the third post, a general category post became reserved category post and respondent no. 3 being eligible was promoted to the said post and the petitioner cannot claim promotion to the said reserved post as he being the general category candidate. 12. The case of the respondent no. 3 is that he is admitted senior to the petitioner as Superintending Engineer as he has been promoted to the post of Superintending Engineer in the reserved category from 1992 whereas the petitioner is still Executive Engineer and his case has been cleared for promotion w.e.f. 10.2.1995 provided he is exonerated in the departmental proceeding. Respondent no. 3 being the senior most Superintending Engineer in the department has been made Incharge of Chief Engineer and the case of the petitioner has been considered in the light of the direction given by this Court. There are three posts of Superintending Engineer in the Bihar State Housing Board. Narad Prasad Sinha was promoted against one post vide notification dated 4.11.1980 w.e.f. 1978 and the second post was filled up from the general category candidate after its dereservation Anand Prasad Singh by notification dated 14.7.1995 w.e.f. 6.10.1981. The third post of Superintending Engineer was created after upgrading the post of Technical Secretary to the Chief Engineer w.e.f. 1.4.1991 vide order dated 25.9.1995. The said post was treated as reserved post and the respondent no. 3 was promoted against the said post. It is further stated that Narad Prasad Sinha was the Incharge Chief Engineer. He was the general category candidate and he filled up the post of general category candidate of Chief Engineer at roster point no. 1. After his superannuation the post of Chief Engineer fell vacant at roster point no. 2 which is reserved for Scheduled Caste/Scheduled Tribe. The respondent no. 3 being a Scheduled Caste candidate and admittedly senior to the petitioner in the cadre of Superintending Engineer was considered for Incharge Chief Engineer and thereafter he was made Incharge Chief Engineer. A copy of the Government circular dated 8.11.1975 including the roster for reserved category has been annexed as Annexure-3/J to the supplementary counter affidavit filed on behalf of respondent no. 3. A copy of the Government circular dated 8.11.1975 including the roster for reserved category has been annexed as Annexure-3/J to the supplementary counter affidavit filed on behalf of respondent no. 3. It is further stated that according to the Government decision contained in letter dated 19.7.1985 vide Annexure-3/K in case the reserved category candidate post is dereserved by the Government and filled up by the general category candidate, the next post falling under the general category candidate will become reserved for Scheduled Caste/Scheduled Tribe Candidate and since in this case the second post of Superintending Engineer was dereserved the third post falling under general category will be filled up by the reserved category candidate. 13. Learned counsel for the petitioner raised the following submissions:– (1) The promotion of respondent no. 3 on the third post of Superintending Engineer vide notification dated 29.9.1996 w.e.f. 1.4.1991 vide Annexure-3/ By treating the said post for reserved category candidate in terms of the roster fixed by the State Government is wholly illegal. The third post is unreserved post and petitioner should have been promoted to the said post being senior to the respondent no. 3. The case of the respondent should have been considered against the reserved post after its vacation by the general category candidate promoted earlier to the said post due to non- availability of reserved category candidate. (2) The impugned orders contained in Annexure-1 & 2 making the respondent no. 3 as Incharge Chief Engineer are vitiated in law for the reason that the respondent no. 3 being junior to the petitioner cannot be even made the Incharge Chief Engineer. The petitioner should have been made Incharge Chief Engineer till regular promotion to the post of Chief Engineer is made. (3) Even assuming that the third post which is post of general category candidate, should be treated to be a reserved post in view of the fact that second post of the Superintending Engineer, which was reserved post, according to the roster was occupied by the general category candidate due to non-availability of the reserved category candidate and according to the Government decision the general category post at roster point no. 3 in such a situation will be treated as a reserved post and as the second post occupied by the general category candidate became vacant in July, 1992 the petitioner should have been promoted with effect from that date and the decision to promote him by the departmental committee w.e.f. 10.2.1995 is unjustified in law. (4) The departmental proceeding initiated against the petitioner vide Annexure-E after he became entitled for consideration of promotion cannot be taken into account for the purpose of denying the promotion after the petitioner was found fit for promotion. (5) The initiation of the departmental proceeding in the present case is arbitrary and malafide in the sense that it has been initiated only with a view to deny the promotion to the petitioner. In this connection it was also submitted that the proceeding has been initiated with regard to the matters which are stale and old one and the respondent no. 3 is instrumental in getting the departmental proceeding initiated with a view to create impediment in the promotion of the petitioner to the post of Superintending Engineer and subsequent post of Chief Engineer. 14. Admitted position is that the petitioner was appointed as a Assistant Engineer in the year, 1964 and was promoted to the post of Executive Engineer in June, 1975 whereas respondent no. 3 was appointed as Assistant Engineer in 1975 and Executive Engineer in 1982 and in 1972, as stated above, the Housing Board was created and the services of the petitioner and other employees were transferred in terms of the notification. The respondent no. 3 was appointed by the Board in 1975. The Housing Board created two posts of Superintending Engineer and the same was approved by the State Government in 1974. Out of the two posts one post was general category post and other was reserved for Scheduled Caste and Scheduled Tribe. One Narad Prasad Sinha, who was promoted to the post of Superintending Engineer, 1978 was promoted to the first post of Superintending Engineer that is general category candidate post. The second post which was reserved for reserved category candidate was not filled up. In 1990 respondent no. One Narad Prasad Sinha, who was promoted to the post of Superintending Engineer, 1978 was promoted to the first post of Superintending Engineer that is general category candidate post. The second post which was reserved for reserved category candidate was not filled up. In 1990 respondent no. 3 was promoted to the post of Superintending Engineer on the second post w.e.f. 6.4.1989 and thereafter one Anand Kumar Singh challenged the same in this High Court in CWJC No. 2584 of 1990 and the same was quashed, as stated above, on the ground that the vacancy of reserved category candidate cannot be carried forward for more than three recruitment years. A copy of the said judgment has been annexed as Annexure13 to the supplementary affidavit. Thereafter, Anand Kumar Singh was promoted to the post of Superintending Engineer by a notification w.e.f. 5.10.1981 on the second post of Superintending Engineer and thereafter he superannuated on 31.7.1992. Aforesaid Narad Prasad Sinha was later on made Incharge Chief Engineer being the senior most Superintending Engineer in the department and he also superannuated on 28.2.1997. The third post of Superintending Engineer was created by upgrading the post of Technical Secretary to the Chief Engineer vide notification dated 25.9.1995 w.e.f. 1.4.1991. The case of respondent no. 3 was considered for promotion to the post of Superintending Engineer by treating the said post as reserved category candidate post in view of the decision of the State Government that if the post reserved for reserved category candidate in terms of roster point is filled up by the general category candidate due to non-availability of the reserved category candidate for three recruitment years the next post reserved for general category candidate according to the roster point shall be treated as reserved post. The respondent no. 3 vide notification dated 24.4.1996 contained in Annexure-A to the counter affidavit filed on behalf of the respondent no. 1 was promoted to the post of Superintending Engineer w.e.f. 1.4.1991 and the petitioner has challenged the same on the ground that the third post should not have been treated as reserved category candidate post. 15. The State Government issued circulars/notifications from time to time making reservations in the matter of direct recruitment and promotion to the Scheduled Caste and Scheduled Tribe as well as backward classes. 15. The State Government issued circulars/notifications from time to time making reservations in the matter of direct recruitment and promotion to the Scheduled Caste and Scheduled Tribe as well as backward classes. In 1975 a roster point of 50 vacancies was prepared, a copy of which has been annexed as Annexure-3/J to the supplementary counter affidavit filed on behalf of respondent no. 3. According to the said roster point the vacancy at point no. 1 is for general category candidate, vacancy at point no. 2 is for reserved category candidate and vacancy at point no. 3 is for general category candidate or unreserved candidate. The State Government by its order dated 19.7.1975 reiterated its earlier decision with regard to reservation in the matter of initial appointment/promotion after following the roster. It further provides that in case a reserved category post is dereserved by an order of the competent authority and filled up by the general category candidate the third post falling under roster for unreserved category candidate will be reserved for the members of Scheduled Caste and Scheduled Tribe. A copy of the aforesaid decision has been annexed as Annexure3/K to the supplementary affidavit filed on behalf of the respondent no. 3. 16. The State Government enacted the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 for giving adequate representation to Scheduled Castes, Scheduled Tribes and other Backward Classes in posts and services under the State. It contains a provision for reservation in the matter of direct recruitment and promotion. Section 4 inter alia provides that in case of non-availability of suitable candidates from the Scheduled Castes and Scheduled Tribes for appointment and promotion in vacancies reserved for them the vacancies shall continue to be reserved for three recruitment years and if suitable candidates are not available even in the third years, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled by exchange shall be treated as reserved for the candidates for that particular Community who are actually appointed. Recruitment year means the calendar year during which the recruitment is actually made. Recruitment year means the calendar year during which the recruitment is actually made. It further provides that if in any recruitment years, the number of candidates of Scheduled Castes/Scheduled Tribes, extremely Backward and Backward Classes are less than the number of vacancies reserved for them even after exchange formula the remaining backlog vacancies may be filled up by general candidates after dereserving them but the vacancies so dereserved shall be carried forward for three recruitment years. Even if the required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward Classes are not available for filling up the reserved vacancies, fresh advertisement may be made only for the candidates belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes, as the case may be, to fill the backlog vacancies only. 17. Thus, according to the roster fixed by the State Government vacancies nos. 1 & 3 were for unreserved candidate and vacancy of point no. 2 was reserved for Scheduled Caste/Scheduled Tribe candidates. The policy of the State Government at the relevant time was that if the vacancies of reserved category candidate are not filled up then those are to be carried over for three recruitment years and if ultimately that are filled up by the general category candidate, the next post of general category candidate is to be treated as vacancy for reserved category candidate. The petitioner, in my view, has rightly not challenged the aforesaid policy. 18. In this case the second post of Superintending Engineer which was a post of reserved category candidate was filled up by the general category candidate, namely, Anand Prasad Singh w.e.f. October, 1981. I n that view of the matter according to the policy decision of the State Government the third post which was of general category candidate, became available to the reserved category candidate and as such the said post would be treated as a reserved vacancy. The third post was created in 1995 w.e.f. 1.4.1991. The said post cannot be filled up by a general category candidate even though the petitioner is senior to the respondent no. 3 as Executive Engineer but as the third post became reserved for reserved category candidate in terms of the roster his case could not be considered for promotion to the said post. The said post cannot be filled up by a general category candidate even though the petitioner is senior to the respondent no. 3 as Executive Engineer but as the third post became reserved for reserved category candidate in terms of the roster his case could not be considered for promotion to the said post. The respondent Board has rightly treated the said post as reserved post and considered the case of respondent no. 3 on the said post and promoted him w.e.f. 1.4.1991. Thus, the appointment of respondent no. 3 as Superintending Engineer has been made in terms of the policy decision of the State Government and no fault can be found with his promotion as a Superintending Engineer. 19. The question regarding seniority between respondent no. 3 and petitioner on the post of Superintending Engineer will arise only when the petitioner is promoted to the post of Superintending Engineer. At present that question does not arise for determination at all as the petitioner is holding the post of Executive Engineer. Accordingly, the cases relied upon by the parties to decide the question of seniority between the general category candidate and the reserved category candidate in a case where reserved category candidate being junior in the lower post to the general category candidate has been promoted on a higher post earlier than a general category candidate has no relevancy at all. 20. So far the grievance of the petitioner regarding functioning of respondent no. 3 as Incharge Chief Engineer by virtue of the orders contained in Annexures-1 & 2 is concerned it is to be stated that at present respondent no. 3 is the only Superintending Engineer and the post of Chief Engineer being vacant the order has been issued by the Government by way of temporary arrangement. The petitioner admittedly at present is the Executive Engineer and unless he is promoted to the post of Superintending Engineer he cannot make a grievance against the respondent no. 3 working as Incharge Chief Engineer. It is clearly stated in the counter affidavit of the State and others that this is a stop gap arrangement and respondent no. 3 being the senior most has been made the Incharge Chief Engineer. 3 working as Incharge Chief Engineer. It is clearly stated in the counter affidavit of the State and others that this is a stop gap arrangement and respondent no. 3 being the senior most has been made the Incharge Chief Engineer. No doubt it is also stand of the respondents that Narad Prasad Sinha was made Incharge Chief Engineer and as such it will be treated that the post of Chief Engineer on the first occasion was occupied by the general category candidate according to the roster point and after his retirement as that vacancy is of roster point no. 2 which is to be filled up by the reserved category candidate. Respondent no. 3 being reserved category candidate has been made Incharge Chief Engineer but that stand, in my view, is wholly unjustified. Neither Narad Pd. Sinha was appointed in a regular way to the post of Chief Engineer nor respondent no. 3 has been appointed to the post of Chief Engineer. The stop gap arrangement to fill up the post of Chief Engineer cannot be treated as filling up of the vacancy of the Chief Engineer either on temporary or permanent basis. The stop gap arrangement to fill up the post of Chief Engineer without following the procedure cannot be treated to have filled up the post of Chief Engineer by way of promotion by following the roster point. 21. As stated above, at the instance of the petitioner at this stage the order passed by the State Government making respondent no. 3 as Incharge Chief Engineer cannot be quashed for the reason that the petitioner is still Executive Engineer and he cannot claim the aforesaid post by surpassing respondent no. 3 who is the only Superintending Engineer in the department. 22. As stated above, the petitioner has challenged the recommendation of the departmental promotion committee which has found the petitioner fit for promotion from 10.2.1995. As stated above, the second post which was reserved post according to the roster point was occupied by the general category candidate and after the retirement of the Anand Prasad Sinha on 31st July, 1992 the said post became vacant in 1992. As the third post has been treated as a reserved post the second post would be filled up by the general category candidate. The petitioner admittedly was eligible for promotion even in 1992. As the third post has been treated as a reserved post the second post would be filled up by the general category candidate. The petitioner admittedly was eligible for promotion even in 1992. In such a situation there appears to be no justification for promoting the petitioner from 10.2.1995. 23. The submission advanced on behalf of the respondents that after the retirement of general category candidate against vacancy no. 2 the same should be again treated as reserved vacancy and carried forward for three years and in cases of non-availability of Scheduled Castes candidate after expiry of three years the said post became available to general category candidate in 1995, cannot be accepted for the reasons that in that case the vacancy of point no. 2 as well as the vacancy of point no. 3 both will become reserved vacancy whereas according to the roster out of the three posts i.e. 1, 2 & 3 only one post is to be reserved for a reserved category candidate. 24. The departmental promotion committee in its minutes, a copy of which has been annexed as Annexure-B to the counter affidavit of the State, has not stated any reason as to why the petitioner has been found fit for promotion from 10.2.1995 when the said post became vacant in 1992. The said decision of the committee granting promotion from 10.2.1995 is unjustified in law and is fit to be quashed. 25. As stated above, the grant of promotion is subject to the result of the departmental proceeding pending against the petitioner. The proceeding has been initiated in 1997 vide Annexure-E to the counter affidavit of the State. In this connection it is to be mentioned that the proceeding relates to two charges. One is with regard to occupation of quarter of the Housing Board in an unauthorised manner. With regard to the same the petitioner was suspended in 1986 and the proceeding was initiated and memo of charges were served asking explanation from the petitioner. When there was progress in the proceeding and the petitioner's suspension continued he filed a writ application being CWJC No. 8918 of 1993 in this High Court which was disposed of on 6.5.1994 and the order of suspension was quashed. A copy of the said order has been annexed as Annexure-3/C to the counter affidavit of the respondent no. 3. When there was progress in the proceeding and the petitioner's suspension continued he filed a writ application being CWJC No. 8918 of 1993 in this High Court which was disposed of on 6.5.1994 and the order of suspension was quashed. A copy of the said order has been annexed as Annexure-3/C to the counter affidavit of the respondent no. 3. At the time of quashing of the suspension order it was stated that the petitioner has vacated the quarter of the lower income group. The materials on the record show that the petitioner has vacated the aforesaid quarter. There was direction in the aforesaid order to proceed with the enquiry but, admittedly, departmental proceeding did not proceed. The petitioner came to this Court for a direction for consideration of his case for promotion in CWJC No. 1129 of 1994 and that was disposed of on 6.1.1997 for consideration of his case for promotion. It was not the stand of the Housing Board at that time that any proceeding was pending. 26. The stand on behalf of the petitioner is that the present proceeding has been initiated only to deny the claim of promotion at the instance of the respondent no. 3 for unauthorised occupation of the quarter the petitioner was put under suspension twelve years back. He remained under suspension for many years. No progress was made in the proceeding initiated with regard to the said matter in 1986 inspite of the direction given by this Court in the aforesaid writ application. In that view of the matter, initiation of the proceeding with regard to the same matter by framing charge no. 1 in the departmental proceeding vide Annexure-E, is an arbitrary and malafide exercise of power and is an example of abuse of the authority by the respondents. They cannot harass an employee for an indefinite period for such a charge for which the petitioner has already suffered for a long time and for no fault on his part the earlier proceeding was not decided within reasonable time. Thus, I am of the view that the initiation of the proceeding for an authorised occupation of the quarter is wholly unjustified. 27. Thus, I am of the view that the initiation of the proceeding for an authorised occupation of the quarter is wholly unjustified. 27. The second charge against the petitioner as evident from the Annexure-E to the counter affidavit of the State is that in terms of the order passed by this Court in CWJC No. 82 of 1995 disposed of on 15.7.1996 the Board was directed to dispose of the controversy between the Board and the Contractor in terms of the Clause 23 of the Agreement. The matter was entrusted to the petitioner who was officiating as Superintending Engineer since 14.5.1994. It is alleged that the petitioner instead of hearing the case on the date fixed i.e. 4.12.1996 preponed the date by observing 3.12.1996 and decided the matter ex-parte. The said action of the petitioner amounts to a grave misconduct and evidence of dishonesty. 28. According to the petitioner he has decided the arbitration proceeding and the aggrieved party has right to challenge the order before the competent Court. Any mistake or error in deciding the said proceeding cannot be treated as misconduct it is also stated that this charge relates to a period subsequent to the entitlement of the petitioner for consideration of his case for promotion and on that ground the promotion cannot be refused to the petitioner. It is also submitted that this charge has been added on the report made by the respondent no. 3 so that the petitioner may not be promoted to the higher post. 29. So far the merit of the charge is concerned the same cannot be investigated or enquired into by this Court in the writ jurisdiction. The case of the petitioner for promotion is due prior to 1996 and the allegation relates to the period of 1996. No doubt on that ground the petitioner cannot be denied promotion. However, even after the petitioner is found fit for promotion due to pendency of the aforesaid proceeding his promotion can be deferred till the disposal of the proceeding with regard to the said charge. There is no sufficient materials to come to the conclusion that the proceeding with regard to the said matter is going on at the instance of the respondent no. 3. Only because respondent no. There is no sufficient materials to come to the conclusion that the proceeding with regard to the said matter is going on at the instance of the respondent no. 3. Only because respondent no. 3 has also given a note at some stage it cannot be conclusively held that at his instance the proceeding was initiated with regard to the said matter at his instance. 30. Accordingly, the departmental proceeding with regard to the charge no. 2 cannot be quashed. However, the same cannot be allowed to remain pending for an indefinite period. As the petitioner has challenged the memo of charge, a copy of which has been annexed as Annexure-E to the counter affidavit of the State, he is directed to file a representation/show cause within three weeks from the date of delivery of the judgment before the Joint Secretary to the Housing Department and thereafter the relevant documents required by the petitioner are to be supplied to him within one month from the date of filing of the show cause and thereafter the proceeding should be disposed of within two months thereafter. Even if the petitioner does not participate in the proceeding the same should be disposed of within the aforesaid period. In case the proceeding is not disposed of for no fault on the part of the petitioner then in that case the petitioner's promotion to the post of Superintending Engineer should not be withheld on the ground of pendency of the aforesaid departmental proceeding. 31. As I have held above that the decision of the respondents to grant promotion to the petitioner from 10.2.1995 is not according to law, the respondent Housing Department is directed to reconsider the case of the petitioner for promotion to the post of Superintending Engineer. The respondents will send the matter to the Commission within one month from the date of judgment and thereafter the departmental promotion committee of the Commission is directed to take a final decision within two months thereafter and after the decision of the departmental promotion committee is received with regard to the promotion of the petitioner a final decision is to be taken by the Housing Department in terms of the direction issued above. In other-words, if the departmental proceeding is not concluded within the time mentioned above or the petitioner is exonerated of the charges then the order of promotion is to be issued. In other-words, if the departmental proceeding is not concluded within the time mentioned above or the petitioner is exonerated of the charges then the order of promotion is to be issued. In case he is found guilty in the departmental proceeding an appropriate order is to be passed in the light of the relevant provision. 32. Accordingly, this writ application is disposed of with the aforesaid observation/ direction.