JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for a direction upon the respondent-authorities to issue promotion order in favour of the petitioner to the rank of Executive Engineer (Civil) with effect from 26.12.1989, Superintending Engineer (Civil) with effect from 01.10.2002, Additional Chief Engineer (Civil) and Chief Engineer (Civil) from the date, immediate junior to the petitioner, namely, Mr. Ajay Kumar Sinha was promoted to the rank of Chief Engineer (Civil) by notification dated 01.07.2008 with all consequential benefits. 3. The case of the petitioner is that he joined service of the respondents on 31.12.1976 as Assistant Engineer (Civil). The petitioner was made an accused in one criminal case under several provisions of I.P.C. and section 5 (2) of Prevention of Corruption Act and pursuant thereto, the petitioner was put under suspension w.e.f. 08.04.1981. A charge-sheet was issued on 05.01.1982 and finally after completion of departmental proceeding; the disciplinary authority awarded punishment vide resolution dated 09.04.1999. The further case of the petitioner is that since the departmental proceeding as well as criminal case was pending against this petitioner, several junior were granted selection grade in the rank of Assistant Engineer, however, one post was kept reserved for the petitioner. Subsequently, a person junior to the petitioner, namely, Ajay Kumar Sinha was promoted to the rank of Executive Engineer with effect from 26.12.1989. Learned counsel further submits that whenever any promotional order was issued, one post was kept reserved for this petitioner. 4. Mr. D.K.Dubey, learned counsel for the petitioner draws attention of this Court towards the notification dated 25.10.2000 and submits that pursuant to the judgment passed by the Patna High Court, a seniority list of Assistant Engineer (Civil) was published in which the name of the petitioner stands at Sl. No. 10, whereas the person junior to him stand at Sl. No. 13 and in that view of the matter he is entitled for promotion when the criminal proceeding pending against the petitioner was quashed as the said junior-Ajay Kumar Sinha has been promoted to the rank of Superintending Engineer and to that effect, a notification was also issued. 5. Mr. Dubey further submits that the departmental proceeding initiated against this petitioner came to an end in the year, 1999 whereby the petitioner had been inflicted punishments. 5. Mr. Dubey further submits that the departmental proceeding initiated against this petitioner came to an end in the year, 1999 whereby the petitioner had been inflicted punishments. He further referred to the order passed in W.P.(S) No. 6431 of 2002 and submits that the petitioner had earlier filed a writ application praying for a direction upon the respondents to allow him entire promotional benefits, however, the said writ application was dismissed. Being aggrieved, the petitioner challenged the aforesaid order in letters patent appeal which was decided in favor of this petitioner. He further submits that the Division Bench of this Court in the operative portion has submitted that since the matter is being investigated, promotion can be considered subject to the result of investigation or subject to the result of criminal case. Relying upon the aforesaid judgment, Mr. Dubey contends that his case for promotion can be considered since the criminal case is pending since long and the petitioner is on death bed and the law is very clear that if any criminal case or departmental proceeding is pending, the respondent has to adopt the sealed cover procedure. However, in the instant case the respondent has failed to adopt the same. 6. Mr. Dubey further draws attention towards the order passed by the Hon’ble Apex Court in Criminal Appeal No. 138 of 2009 and submits that in one of the vigilance case which was lodged against this petitioner, the petitioner filed an application under 482 before the High Court for quashing of the entire proceeding on the ground of delay. However the High Court did not interfered and the petitioner challenged the order of the High Court before the Hon’ble Apex Court and the Hon’ble Apex Court has categorically held that in the present case appellant’s constitutional right recognized under Article 21 of the Constitution stands violated. For better appreciation of the instant case, paragraph-16 of the judgment, delivered by the Hon’ble Apex Court in the case of this petitioner in Cr. Appeal No.138 of 2009 (Annexure-7), is reproduced as under: “16. Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case appellant’s constitutional right recognized under Article 21 of the Constitution stands violated. Appeal No.138 of 2009 (Annexure-7), is reproduced as under: “16. Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case appellant’s constitutional right recognized under Article 21 of the Constitution stands violated. It is manifest from the facts narrated above that in the first instance investigations were conducted by an officer, who had no jurisdiction to do so and the appellant cannot be accused of delaying the trial merely because he successfully exercised his right to challenge an illegal investigation. Be that as it may, admittedly the High Court vide its order dated 7th September, 1990 had directed the prosecution to complete the investigation within a period of three months from the date of the said order but nothing happened till 27th February, 2007 when, after receipt of notice in the second petition preferred by the appellant complaining about delay in investigation, the Superintendent of Police, Muzaffarpur directed the Deputy Superintendent of Police to complete the investigation. It was only thereafter that a fresh chargesheet is stated to have been filed on 1st May, 2007. It is also pertinent to note that even till date, learned counsel for the State is not sure whether a sanction for prosecuting the appellant is required and if so, whether it has been granted or not. We have no hesitation in holding that at least for the period from 7th December, 1990 till 28th February, 2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, for from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in the court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed.” 7. Relying upon the finding given by the Hon’ble Apex Court learned counsel for the petitioner reiterates that his case for promotion should be considered and the respondents be directed to give the monetary benefits as the petitioner has already retired from his service. 8. Mr. O.P.Tiwari vehemently opposed the prayer of the petitioner and submits that several cases were pending against this petitioner right from inception and as a matter of fact the petitioner is not entitled for any relief for the reasons mentioned in paragraph 6 of the counter-affidavit which is quoted herein below; “6. That the petitioner was appointed as Assistant Engineer (Civil) on 31.12.1976 and was placed at sl. no. 10 in the seniority list of Assistant Engineer (Civil) prepared in view of the order passed by Hon’ble High Court, Patna passed in CWJC No. 6862 of 1988. An FIR has been lodged against the petitioner u/s 5 (2) of the Prevention of Corruption Act r/w Section 131 of IPC for taking illegal gratification and the petitioner had been caught red-handed by vigilance team. The Bihar State Electricity Board vide its Office Order No. 727 dated 8/2/1982 and Office Order No. 906 dated 18/2/1982 had already been accorded sanction of prosecution against the petitioner in Vig. Case no. 201 of 1981. A departmental proceeding following the said criminal proceeding was initiated against the petitioner which come to an end with inflection of the following punishments to the petitioner vide Boards Resolution No. 366 dated 9/4/1999- (i) Stoppage of five (5) annual increments. (ii) Debarred from promotion for ten years w.e.f. 27/2/1999. (iii) Nothing will be paid during suspension period except subsistence allowance already paid to him. (iv) The period of suspension will be counted on duty for the purpose of pensionary benefit. (ii) Debarred from promotion for ten years w.e.f. 27/2/1999. (iii) Nothing will be paid during suspension period except subsistence allowance already paid to him. (iv) The period of suspension will be counted on duty for the purpose of pensionary benefit. The aforesaid punishment had however been quashed by this Hon’ble High Court vide order dated 2/2/2007 passed in L.P.A. No. 508 of 2006. The criminal case has also been quashed by the Hon’ble Supreme Court vide order dated 23/1/2009 passed in Criminal Appeal No. 138 of 2009 (Annexure-7 to the writ petition). In view of the above mentioned judgments passed by this Hon’ble Court and Hon’ble Supreme Court, the punishment awarded to the petitioner vide Resolution No. 366 dated 9/4/1999 is withdrawn with immediate effect vide BSEB Resolution No. 544 dated 15/10/2007. It is pertinent to mention here that another vigilance case bearing Vig. Case No. 17 of 1998 dated 9/11/1998 u/s 468/471/201 of IPC and u/s 13(2) r/w 13(1)E of Prevention of Corruption Act has also been pending against the petitioner. The respondent-Board vide its Office Order no. 3962 dated 10/8/2001 has already accorded sanction of prosecution against the petitioner. The charge sheet has been filed against the petitioner in the said criminal case by the vigilance vide its charge sheet no. 20 dated 26/09/2001 which is still pending. A departmental proceeding was drawn up against the petitioner vide Resolution no. 471 dated 8/6/1993 on the charges of gross misconduct which came to an end with the infliction as the following punishment vide Resolution No. 1103 dated 31/12/2001- I. One annual increment is stopped with non-commutative effect. II. He will not get anything other than subsistence allowance, already paid to him during suspension period will not be counted as service period for post retirement benefits. III. Recovery of penal rent as per housing rules of the Board. The petitioner was also proceeding departmentally on the charges of second marriage inspite of the fact that his first wife is alive vide Board’s resolution no. 511 dated 12/9/99 which came to end with the infliction of the following punishment to him vide Board’s resolution no. 2619 dated 9/6/08. (a) Warning and withholding of two annual increments with cumulative effect. (b) the period spent in jail with effect from 12/12/94 to 13/12/94 will be decided after the outcome of the case pending before the court. 511 dated 12/9/99 which came to end with the infliction of the following punishment to him vide Board’s resolution no. 2619 dated 9/6/08. (a) Warning and withholding of two annual increments with cumulative effect. (b) the period spent in jail with effect from 12/12/94 to 13/12/94 will be decided after the outcome of the case pending before the court. A police case was also pending against the petitioner in which he was sent to jail with effect from 12/12/84. Presently the petitioner is under suspension. While posted as Assistant Engineer (Civil), Electric Supply Area, Ranchi, the petitioner has been allegedly caught red handed taking bribe by the Vigilance team in Vigilance Case No. 27/2008 and sent to judicial custody for which he has been under suspension vide Board Office Order no. 2498 dated 22/12/08. The sanction of prosecution has also been accorded against the petitioner in Vigilance Case No. 27/08 dated 12/12/08 vide Board letter no. 31 dated 9/2/09. Despite the above mentioned pending criminal case as well as awarded punishment to the petitioner, the case of promotion was taken into consideration several times by the Bihar State Electricity Board in which he had been found unfit for promotion. Sl. No. BSEB DPC meeting held on Recommendation of DPC 1 22/5/1998 Unfit 2. 31/5/2000 Unfit 3. 27/2/2002 Unfit 4. 18/1/2008 Unfit 5. 4/10/2007 Pending due to criminal case 6. 14/8/2008 Pending (Post Reserved) Under the stated facts, the matter of promotion of the petitioner has been taken into consideration by the Board but due to pending criminal case he was not declared fit for promotion. Worth to mention that the petitioner has been placed under suspension on the ground of that vigilance case consisting of moral turpitude has been lodged against him on 12/12/2008.” 9. Mr. Tiwari fairly admits that though several cases pending against this petitioner either has been quashed or allowed in favor of petitioner but two criminal cases are still pending; one was lodged in the year 1998 being Vigilance Case No. 17 of 1998 and another was lodged in the year, 2008 being Vigilance Case No. 27 of 2008; as such, the respondent-authorities were having no option, but not to consider the case of the petitioner for promotion till the final outcome of the result in the Vigilance Case. He further submits that in paragraph 6 it has been specifically stated that the DPC meeting was held on 04.10.2007 and 14.08.2008, but the case of the petitioner was not considered and the DPC recommended that it is pending due to criminal case; as such the relief sought by the petitioner is not maintainable in the eye of law. 10. Having heard learned counsel for the parties and after going through the documents annexed and the averments made in the respective affidavits, it appears that the petitioner was involved in several criminal cases and in one case he filed a quashing application under Section 482 of the Cr. P.C. which was dismissed by the Patna High Court and the petitioner challenge the said order of Patna High Court before the Hon’ble Apex Court and on the ground of delay in prosecution of the Vigilance Case, the proceeding was quashed. It further transpires that so far as departmental proceeding and punishment thereof is concerned; recently the order of punishment has been quashed. It further appears that the admitted case of the parties are that though initially there were several proceedings initiated against this petitioner, but now only two proceeding are still pending and in other proceedings either the same has been remitted back to the department or decided in favor of the petitioner. From the pending proceedings, it appears that one was instituted on 09.11.1998 i.e. about 23 years ago and the said vigilance case is still pending as stated by learned counsel for the respondent upon instruction from his client. The other criminal case was also lodged on 12.12.2008 being Vigilance Case No. 27 of 2008; thus this case is also pending since last 14 years. It is true that the respondents are very fair in admitting that the case of the promotion has not been considered due to pendency of this case, but the fact remains how long and why the petitioner should be held responsible for the delay. The Hon’ble Apex Court in the case of this petitioner itself has categorically held in para 16 quoted herein above that the constitutional right as recognized under Article 21 of the Constitution has been violated. The Hon’ble Apex Court quashed the order only on the ground of delay. The Hon’ble Apex Court in the case of this petitioner itself has categorically held in para 16 quoted herein above that the constitutional right as recognized under Article 21 of the Constitution has been violated. The Hon’ble Apex Court quashed the order only on the ground of delay. The law is well settled that the pendency of the criminal case or departmental proceeding cannot disentitle a person to be considered for promotion. In the instant case since Vigilance case was pending against the petitioner; his promotion should have been kept in sealed cover and on exoneration from the charges of the departmental proceeding and/or in the criminal case, his case could have been considered. However, the fact remains that the said procedure has not been adopted by the respondents. Even the Division Bench of this Court in L.P.A. No. 541 of 2006 has held as under: “L.P.A. No. 541 of 2006: Seeking for other consequential benefits, this letter patent appeal has been filed. However, we are not inclined to entertain such prayer, especially when the matter is being investigated. Promotion can be considered subject to the result of the investigation or subject to the result of the criminal case. The final report must be submitted within three months from the date of receipt of this order. This letters patent appeal stands disposed of accordingly.” 11. As informed by the parties, the aforesaid order passed by the Division Bench has attained finality. In this view of the matter, this Court is having no hesitation in directing the respondents to consider the claim of promotion subject to the final out-come of the result in the pending Vigilance Cases. Admittedly; one post was kept reserved for the petitioner and as held by the Hon’ble Apex Court in the petitioner’s own case that due to delay appellant’s constitutional right recognized under Article 21 of the Constitution stands violated. It is made clear that since the case is of 2009 and the petitioner has already retired in the year, 2010; as such necessary orders shall be passed within a period of five months from the date of receipt/production of copy of this order. 12. With the aforesaid terms, the instant writ application stands disposed of.