JUDGMENT By the Court.—We have heard Sri H.N. Singh, learned counsel for the appellant and learned Standing Counsel appearing for respondents. 2. This intra-Court appeal has been filed challenging the order dated 3.2.2010 passed in Civil Misc. Writ Petition No. 5624 of 2010 by the learned Single Judge which was dismissed on the ground of alternative remedy. 3. Briefly stating the facts giving rise to the present appeal is that, the petitioner was holding the post of Senior Assistant in Government Hospital and was promoted to the post of Office Superintendent in pay scale of Rs. 5000-8000/- vide order of the Director (Administration) in the Office of Director General Medical Health Services U.P., Lucknow. Accordingly the petitioner joined on the promoted post and was working in District Hospital, Ghaziabad on 21st August, 2009. The reversal order passed reverting the petitioner to the post of Senior Assistant without affording any opportunity of hearing to the petitioner and without issuing any show-cause notice and 16.12.2009 he was transferred from Ghaziabad to Lalitpur. Aggrieved by the aforesaid order of the reversion and transfer, the petitioner filed the writ petition No. 5624 of 2010. 4. Learned Single Judge after hearing the writ petition, dismissed the writ petition on the ground that the petitioner has an alternative remedy in U.P. Public Service Tribunal and also holding that in case of transfer, he may make his representation to respondent No. 1, while considering the matter. 5. It is contended on behalf of the learned counsel for the appellant petitioner that order of reversion was passed against him affecting his service/prospects which is apparently a violation of Article 311 of the Constitution of India. It is also contended on behalf of the learned counsel for the petitioner appellant that alternative remedy is no bar where there is a clear cut violation of principles of natural justice and as has been held in case State of Bengal v. Registrar of Trade Mark, Mumbai, 1998 (8) SCC 1 , wherein it has been held that where there is a violation of natural justice the order would not survive. Therefore, the order of learned Single Judge dated 3.2.2010 is liable to be set aside. The argument seems to be sustainable in the light of the fact that the order of reversion has apparently been passed without affording any opportunity of hearing to the petitioner appellant. Therefore, the order of learned Single Judge dated 3.2.2010 is liable to be set aside. The argument seems to be sustainable in the light of the fact that the order of reversion has apparently been passed without affording any opportunity of hearing to the petitioner appellant. It is explicitly clear from a perusal of annexure 1 which shows that vide order dated 18.2.2009 No. 4F/A/175/08/1462 Bhajan Lal, the petitioner appellant was promoted to the post of Officer Superintendent in the order of promotion. It was mentioned that if any disciplinary proceeding, departmental proceeding or any criminal case is found to be pending, it should be intimated to the Directorate with full facts. Sri Bhajan Lal was granted promotion despite the fact that vigilance enquiry was pending against him. Accordingly, it was directed by Dr. Alka Srivastava that the order of the promotion of Sri Bhajan Lal as Office Assistant is cancelled. The order itself indicates that while cancelling the order, no opportunity was given to the petitioner appellant for hearing. Apparently, the order appears to have been passed in utter violation of natural justice and accordingly it is liable to be set aside. 6. Secondly, a perusal of annexure 3, at page 48, the order of promotion shows that persons mentioned in serial Nos. 1 to 13 have been promoted from the date they took over the charge of their promoted posts. It is also mentioned in the order of the promotion that if any disciplinary proceeding or departmental proceeding or any criminal case is pending against any of the promoted employees, in that case he should not be given benefit of the promotion and the Director should be acquainted with full facts. So the grounds on which the promotional benefits are directed to be withheld are disciplinary proceeding or departmental proceeding and pendency of a criminal case. None of these three grounds are found pending against the petitioner appellant so as to deprive him of his promotional benefits as per the order dated 18th February, 2009. 7. The ground on which his promotion has been cancelled and he has been reverted from the promotion already granted, is said to be a pendency of a vigilance enquiry. None of these three grounds are found pending against the petitioner appellant so as to deprive him of his promotional benefits as per the order dated 18th February, 2009. 7. The ground on which his promotion has been cancelled and he has been reverted from the promotion already granted, is said to be a pendency of a vigilance enquiry. Annexure 1, the order of the Director (Administration) dated 21.8.2009 says that promotion has been granted even though a vigilance enquiry is pending against the petitioner appellant and there is no mention of any disciplinary proceeding, departmental proceeding or criminal matter on account of which the cancellation order has been passed. 8. Question to be determined in the present case is whether the pendency of vigilance enquiry is a sufficient ground for depriving an employee from promotion or reverting from promotion already granted. The promotion order itself shows that it is only mentioned that only in three conditions the promotional benefits should not be given if there is a departmental enquiry, there is a disciplinary proceeding or if there is any criminal case going on against the petitioner appellant. The factum of vigilance enquiry is not mentioned as a ground for depriving the petitioner appellant the benefits of the promotions. Hence his promotion already granted cannot be denied without affording any opportunity of hearing. 9. Now the question remains whether once a promotion has been granted, can same be cancelled on the basis of a pendency of vigilance enquiry. At the same time it is also worth considering whether an employee can be deprived of the promotion merely because a vigilance enquiry is pending against him. It has come in the contentions of learned counsel for the petitioner appellant that the vigilance enquiry does not come in the category of disciplinary enquiry or departmental enquiry or lodging or any criminal case. It is also contended that the vigilance enquiry is going on since 2003 against the petitioner appellant when the order of the promotion has been passed in the year 2009 i.e. the vigilance enquiry is pending since about a period of six years with no result. 10. The word ‘vigilance’ means watchfulness and careful and cautious. It is also contended that the vigilance enquiry is going on since 2003 against the petitioner appellant when the order of the promotion has been passed in the year 2009 i.e. the vigilance enquiry is pending since about a period of six years with no result. 10. The word ‘vigilance’ means watchfulness and careful and cautious. Enquiry means an enquiry other than a trial investigation includes proceedings for collection of evidences, specially one Official which relates to the collection of the facts and materials relating to the matter in connection with which enquiry is being conducted. Thus it is careful proceeding in which materials and evidences are being collected which may go to prove that a certain wrong or act has been committed by a person or not and it thus relates to a cautious fact finding process. Drawing collection in a report, all the alleged act being done proved or not. Unless and until a complete report is submitted the fact finding report or evidence cannot be said to have been completed which may have given any occasion to adversely apprehend against the person against whom any enquiry is pending. Unless and until a substantive report as a result of enquiry is furnished, adverse presumption cannot be drawn against the concerned person against whom an enquiry is pending. A vigilance enquiry is in fact a careful fact finding process and unless and until it completes in submission of substantive positive report which may give rise to an unrebuttable adverse presumption in respect of the alleged person. A person cannot be punished by depriving his promotion which he is otherwise entitled and due to get in course of time if all other things are in his favour, so even if a vigilance enquiry is said to be pending unless and until the enquiry is completed and a positive report against the Official is submitted and the Competent Authority makes up his mind to proceed to initiate proceedings with the alleged charges he cannot be denied and deprived promotion. In the present case the vigilance enquiry is going on since 2003 and no positive adverse report against the petitioner appellant has been furnished till date. He was granted promotion in 2009. He cannot be deprived of his promotion which was already granted to him. 11. In the present case the vigilance enquiry is going on since 2003 and no positive adverse report against the petitioner appellant has been furnished till date. He was granted promotion in 2009. He cannot be deprived of his promotion which was already granted to him. 11. In case of Manoj Kumar Singh v. Coal India Ltd. and others, (2006) 13 SCC 705, it has been held by Hon. Supreme Court that in case the vigilance inquiry is pending then according to the memorandums dated 19.6.1979 and 27.6.1979 is that “ An executive, who has been placed under suspension pending inquiry and or against whom departmental/vigilance proceedings are pending will be promoted, if selected and placed in the select list by DPC, only after completion of the proceedings and his complete exoneration of the charges. Such an officer shall be promoted in the first vacancy that may be available immediately after his complete exoneration of the charges.” 12. The Hon’ble Court observed that the aforesaid rule makes it clear that even if vigilance proceedings are pending, the selection can be made only after completion of the proceedings and the complete exoneration from the charges. In this case from the uncontroverted statement in the counter affidavit, it is apparent that the vigilance proceedings were pending against the appellant much prior to the date on which DPC first promoted the appellant’s juniors. 13. The Hon’ble Court further observed stated our attention has been drawn to another circular issued by the respondents on 8.1.1991 in which it has been clarified that all orders of promotion will be issued only after vigilance clearance and that vigilance clearance should be withheld inter alia when “in the case of a preliminary inquiry, either by CBI or departmental agencies, the competent authority or a consideration of the results of the investigation has formed, the opinion that a charge-sheet may be issued on specific imputations for departmental action”. 14. In the present case the decision to take action against the appellant had been formed on 20.1.1999. Apparently, the decision was taken by the competent authority prior to the meeting of DPC. Hence the appellant could not have been granted vigilance clearance. 15. 14. In the present case the decision to take action against the appellant had been formed on 20.1.1999. Apparently, the decision was taken by the competent authority prior to the meeting of DPC. Hence the appellant could not have been granted vigilance clearance. 15. The crux comes out that if after collection of the evidence in proceedings of vigilance inquiry or investigation, the material has been collected and on a consideration of the results of the investigation, the competent authority has formed an opinion for issuing of the charge-sheet then vigilance clearance will be withheld. In such circumstances, the vigilance clearance is essential for promotion. 16. In another subsequent case Coal India Ltd. and others v. Saroj Kumar Mishra, (2007) 9 SCC 625 , it has been held that promotion, vigilance clearance, administrative instructions regarding-held, such administrative instructions being adverse to promotion of an employee, have to be construed strictly-withholding of vigilance clearance in a case where neither charge-sheet had been issued nor even the competent authority had formed an opinion for issue of charge, held, invalid- departmental proceeding is “ordinarily said to be initiated when a charge-sheet is issued”. 17. In the instant case, Hon’ble Supreme Court has held that since the investigation was not completed within two years from the date the immediate junior to the petitioner was promoted. The sealed cover was opened and the petitioner was given promotion to next higher grade (Grade 4). The petitioner was never suspended during the period of so-called preliminary inquiry nor during the period of the departmental inquiry. As such he shall be entitled for promotion notionally with effect from the date his immediate junior got the same alongwith all service and financial benefits. On the said findings, the writ petition were allowed. 18. In para - 9 of the aforesaid judgement, it was observed that the factual matrix involved in the matter being not in dispute, the only question which falls for our consideration in interpretation of the office memorandums dated 27.6.1979 and 8.1.1981. It has further held that Mahanadi Coalfields Ltd. as well as the first appellant are “State” within the meaning of Article 12 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. It has further held that Mahanadi Coalfields Ltd. as well as the first appellant are “State” within the meaning of Article 12 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a State is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefore in terms of Article 16 of the Constitution of India. A right of promotion can be withheld or kept in abeyance only in terms of valid rules. Rules operating in the field do not provide that only because some allegations have been made as against an officer of the company, the same would itself justify keeping a valuable right to be considered for promotion of an employee in abeyance. When a question of that nature comes up for consideration before a superior Court, the extant rules operating in the field must necessarily be construed in the light of the constitutional scheme of equality. 19. The office memorandums dated 19.6.1979/27.6.1979 reads as under : “The issue relating to procedure to be followed with regard to promotion of an officer who has been kept under suspension and/or against whom a vigilance/departmental action is pending has been engaging the attention of the management for some time past. Taking into consideration the extant rules and orders of the Government of India in this regard the following decision has been taken (a) All orders for promotion will be issued only after vigilance clearance. (b) * * * * * (c) When an officer has been completely exonerated and he is subsequently promoted, his seniority should be fixed as if he had been promoted in accordance with the position assigned to him in the select list. Period of his eligibility for consideration for promotion to his immediate junior has been promoted. The pay of such an executive on promotion should be fixed notionally by allowing the intervening period during which the officer could not be promoted due to his suspension and/or pending departmental enquiry to be counted for increments in the higher grade but no arrears would be admissible to him.” 20. The pay of such an executive on promotion should be fixed notionally by allowing the intervening period during which the officer could not be promoted due to his suspension and/or pending departmental enquiry to be counted for increments in the higher grade but no arrears would be admissible to him.” 20. The said office memorandums was, however, clarified by a subsequent memorandum dated 8.1.1981 wherein it was laid down: “It has been laid down in CIL OM No. C-5 (A)/50972 (Vol.1) Pt./1507 dated 10.7.1979 that all orders for promotions will be issued only after vigilance clearance. The stage at which a vigilance enquiry should affect the promotion, confirmation, etc. of an employee of CIL and its subsidiaries has not been clearly defined in the above quoted office memorandum. Vigilance inquiries take considerable time to complete and in absence of a clear indication regarding the point at which such inquiries should stand in the way of an officer’s promotion, there is scope for confusion on this score. This matter has been engaging the attention of the management for quite some time. Taking into consideration the existing orders of the Government of India in this regard, the following decision has been taken” “All orders for promotions will be issued only after vigilance clearance. However, vigilance clearance shall not be withheld for the mere fact that a PE or RC has been registered by CBI against an officer or that complaints are being looked into a preliminary enquiry departmentally but no conclusion has been reached about the prima facie guilt of the officer. Vigilance clearance shall be withheld only when: (1) In the case of a preliminary enquiry either by CBI or departmental agencies, the competent authority, on consideration of the results of the investigation, has formed the opinion that a charge-sheet may be issued on specific imputations for departmental action, and (2) In case of a regular case, the competent authority has decided to accord sanction for prosecution of the officer in Court. Until the competent authority arrives at such a conclusion, the officer may be treated on a par as per with others (sic) in the matter of promotion, confirmation, etc. These instructions shall come into force with immediate effect.” 21. Until the competent authority arrives at such a conclusion, the officer may be treated on a par as per with others (sic) in the matter of promotion, confirmation, etc. These instructions shall come into force with immediate effect.” 21. It is not the case of the appellants that pursuant to or in furtherance of the complaints received by the Vigilance Department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise. 22. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. 23. We may also notice that a revised guideline was also issued on or about 14.5.2002, wherein it was stated: “The vigilance clearance shall be withheld only on the ground (a) when officer is under suspension; (b) when the officer, in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending.” The said circular although is not ipso facto applicable in this case, clearly lays down the law otherwise prevailing. 24. The question as to whether in absence of any charge-sheet or at least in absence of any satisfaction having been arrived at by the disciplinary authority that a prima facie case has been made out for proceeding against an employee, the vigilance clearance can be given or not, did not fall for consideration at all therein. No issue in that behalf was framed; no reason has been assigned in support of the said order. This Court merely stated: “In the present case, the decision to take action against the appellant had been formed on 20.1.1999. It has been surprising that although the appellant is a “State” within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. It has been surprising that although the appellant is a “State” within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh would have been different. 25. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued. It was further observed that only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. 26. As learned counsel for the petitioner appellant contended that before reversion, the officer was afforded no opportunity of hearing and the factum of denial of opportunity of hearing has been conceded by the Director General Alka Srivastava who is present in the Court. It is also apparent that pendency of vigilance enquiry itself without the appellant being put under suspension and without the competent authority being satisfied on consideration the material collected during the investigation and coming to the conclusions and forming an opinion that charge-sheet be issued to the appellant and without any averment of the fact that any prosecution of a criminal charge is proceeding cannot be a ground for withholding the promotion which was otherwise due to the petitioner appellant. In the absence of above three situations, we are of the considered opinion that vigilance enquiry is nothing more than a fact finding enquiry at preliminary stage and is not a sufficient ground for withholding the promotion or reverting the promotion already granted. 27. Consequently, the appeal succeeds and is allowed. The order passed by the learned Single Judge dated 3.2.2010 in Civil Misc. Writ Petition No 5624 of 2010 as well as the reversal order dated 21.8.2009 (Annexure 1 to the Special Appeal) are set aside. The respondents are directed to reinstate the petitioner on the post of Office Superintendent with all consequential benefits within two weeks from the date of receipt of certified copy of this order. Writ Petition No 5624 of 2010 as well as the reversal order dated 21.8.2009 (Annexure 1 to the Special Appeal) are set aside. The respondents are directed to reinstate the petitioner on the post of Office Superintendent with all consequential benefits within two weeks from the date of receipt of certified copy of this order. Since the petitioner has been transferred from Ghaziabad to Lalitpur as Senior Assistant, the transfer order cannot be given effect too and the respondents shall permit the appellant to join at the promotional post on which he has earlier joined. It shall be open for the respondents to consider afresh and to pass appropriate order for his transfer, if any. —————