JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Rajendra Krishna, learned counsel appearing for the petitioner and Mr. Arun Kumar Dubey, learned A.C. to G.P. III, appearing for the respondents-State. 2. This writ petition has been filed for quashing of the order contained in Memo No. 1854/P dated 10.08.2015 [Annexure-10], by which, the prayer of the petitioner for his promotion to the post of Deputy Superintendent of Police with retrospective effect has been rejected on the ground that the petitioner has been superannuated. Further prayer has been made for a direction upon the respondents to give the promotion to the petitioner with effect from the date, juniors of the petitioner were granted promotion. Further the prayer has also been made for a direction to forthwith provide the benefits of 2nd ACP to the petitioner with effect from 15.06.2008, as decision of the authority is in favour of the petitioner, however, till date the fruit of that has not been provided to the petitioner. 3. Mr. Rajendra Krishna, learned counsel appearing for the petitioner submits that the petitioner was appointed at Sub-Inspector of Police on 15.06.1984 and he was subsequently promoted to the post of Inspector of Police in the month of August, 1995, and thereafter he was posted at several places in the erstwhile State of Bihar. He submits that the petitioner stands at Serial No. 40 in the seniority list prepared for the police inspectors in the year 2010. He further submits that the persons, who were juniors to the petitioner in the gradation/seniority list of the year 2010, have been considered for promotion on the post of Deputy Superintendent of Police. He further submits that the petitioner was dismissed from service by order dated 26.10.2010, on the ground that he was facing the criminal case, in which, he was convicted. He further submits that the petitioner was acquitted in the criminal case by the judgment of the High Court and in that view of the matter, the petitioner was reinstated in service with effect from 27.12.2012 by the order of the Principal Secretary, Department of Home, Government of Jharkhand. He also submits that in the reinstatement order, it has been recorded that the Director General of Police is free to initiate/dispose of the departmental proceeding pending against the petitioner. He also submits that in the reinstatement order, it has been recorded that the Director General of Police is free to initiate/dispose of the departmental proceeding pending against the petitioner. He also submits that the petitioner was chargesheeted departmentally in the year 2003 and identical allegation has been levelled against him, which has been the facts of criminal case. He further submits that since the petitioner was convicted in the month of December, 2005 and thereafter the petitioner preferred an appeal, being Criminal Appeal (DB) No. 70 of 2006, before the Jharkhand High Court. He further submits that the respondent authorities allowed the petitioner to continue in suspension in view of Rule 847 of the Jharkhand Police Manual, however, after acquittal in the aforesaid criminal appeal, the petitioner was exonerated in the departmental proceeding by the order dated 04.09.2014, as contained in Annexure-7 to the writ petition and the petitioner has superannuated w.e.f. 28.02.2014. Learned counsel further submits that by the impugned order, the claim of the petitioner has been rejected on the ground that the petitioner was suspended and the departmental proceeding was pending and on that ground, the prayer of the petitioner was rejected. He further submits that the petitioner was reinstated in the year 2012 itself and departmental promotion was conducted with regard to other colleagues of the petitioner in the year 2013, wherein the case of the petitioner has not been considered, which is in violation of Rule 726(II) of the Jharkhand Police Manual. He further submits that in view of the judgment of the Hon’ble Supreme Court in the case of Union of India and Others vs. K.V. Jankiraman and Others, (1991) 4 SCC 109 , the case of the petitioner is required to be considered in view of the Police Manual and sealed cover procedure was required to be followed by the department, which has not been done in the case in hand. He further submits that the said case of Jankiraman (Supra) was recently considered in the case of Union of India and Others vs. Anil Kumar Sarkar, (2013) 4 SCC 161 , wherein the Hon’ble Supreme Court in Para-16 and 17 held as follows: “16. It is not in dispute that an identical issue was considered by this Court in Union of India vs. K.V. Jankiraman, (1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 32 . It is not in dispute that an identical issue was considered by this Court in Union of India vs. K.V. Jankiraman, (1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 32 . The common questions involved in all those matters were: (SCC p. 114, Para 8) “8.… (1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?” Among the three questions, we are concerned about Question 1. As per the rules applicable, the “sealed cover procedure” is adopted when an employee is due for promotion, increment, etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. 17. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows: [K.V. Jankiraman Case (1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322, SCC p. 118, Para 16] “16. On the first question viz. as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment, etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.” In Para 17, this Court further held: “17. … Conclusion 1 should be read to mean that the promotion, etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge-sheet has already been issued to the employee.” After finding so, in the light of the fact that no charge-sheet was served on the respondent employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge-sheet has already been issued to the employee.” After finding so, in the light of the fact that no charge-sheet was served on the respondent employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that: [K.V. Jankiraman Case (1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322, SCC p. 124, Para 32] “32.…The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated 30-4-1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits.… We see no reason to interfere with this order. The appeal, therefore, stands dismissed.” 4. On the aforesaid grounds, learned counsel appearing for the petitioner submits that the case of the petitioner has wrongly been rejected. He further submits that by the impugned order, the ACP was directed to be provided to the petitioner, but till date, fruit of that has not been given to the petitioner. 5. On the other hand, Mr. Arun Kumar Dubey, learned A.C. to G.P. III, appearing for the State submits that the case of the petitioner has not been considered, since the departmental proceeding was pending and the petitioner was under suspension. He further submits that no Rule of notional promotion to be provided to the petitioner and in that view of the matter, there is no illegality in the impugned order as the petitioner was chargesheeted and criminal proceeding was pending against him subsequently, he was dismissed from service. He further submits that however, after acquittal from the High Court, the petitioner was reinstated in service. 6. In view of the above, learned counsel appearing for the State submits that there is no illegality in the impugned order and the petitioner is not entitled for any relief. 7. He further submits that however, after acquittal from the High Court, the petitioner was reinstated in service. 6. In view of the above, learned counsel appearing for the State submits that there is no illegality in the impugned order and the petitioner is not entitled for any relief. 7. In view of the above submissions of the parties, the court has gone through the materials available on record and also the impugned order dated 10.08.2015 and finds that on the ground of departmental proceeding and suspension, the case of the petitioner was not considered in the year 2013 for promotion. It has also been disclosed that his nomination was not extended by the concerned Regional Board and on this ground, the case of the petitioner has been rejected. Admittedly, the petitioner was chargesheeted in the criminal case, which was the subject matter of the departmental proceeding also and in the said criminal case, the petitioner was convicted and thereafter in an appeal before the High Court, being Criminal Appeal (DB) No. 70 of 2006, the petitioner was acquitted and pursuant to that, he was reinstated in service by order dated 27.12.2012 and admittedly the petitioner was superannuated w.e.f. 28.02.2014 and he was exonerated in the departmental proceeding on 04.09.2014. 8. Rule 726(II)(a) of the Jharkhand Police Manual is quoted herein-below for the ready reference: “726(II) Conduct under enquiry - The case of an officer, whose conduct is under enquiry and who is otherwise considered in every respect fit for promotion shall be dealt with as follows: (a) If no case has been established till the date of promotion of the officer, this shall not be stopped. If, however, enquiries are in progress regarding misconduct of the officer, one post of appropriate seniority should be kept vacant till the final disposal of the enquiry. (See Memo No. CS/M3-1062/61-623, dated 9th February, 1961 sent from Chief Secretary to all departments).” 9. Looking into the said provision, it is crystal clear that one post is required to be kept vacant till the final disposal of the enquiry. The petitioner was already reinstated in service in the year 2012, the proceeding against him was pending, which has come to an end on 09.07.2013. Looking into the said provision, it is crystal clear that one post is required to be kept vacant till the final disposal of the enquiry. The petitioner was already reinstated in service in the year 2012, the proceeding against him was pending, which has come to an end on 09.07.2013. In view of this provision, the case of the petitioner was required to be considered along with his juniors in the year 2013 itself, which has not been followed in the case in hand and the case of the petitioner is fully covered in the light of the judgment of Hon’ble Supreme Court in the case of Anil Kumar Sarkar’s Case (Supra). Moreover, it was not within the domain of the petitioner to send his case for promotion, which was required to be sent by the Regional Board for consideration of the Departmental Promotion Committee. In that view of the matter, the liability cannot be fastened upon the petitioner for not sending his case for promotion to the Departmental Promotion Committee. Further, by the impugned order, the case has been recommended for granting the ACP, however, till date, the fruit of that ACP has not been given to the petitioner, which has not been denied by the learned counsel appearing for the State. 10. In view of the above, the case of the petitioner is required to be re-considered by the Department. Accordingly, the impugned order, as contained in Memo No. 1854/P dated 10.08.2015 [Annexure-10], so far rejection of promotion is concerned, is quashed. The matter is remitted back to the respondent Nos. 3 and 4, who will take a fresh decision in view of the discussions made hereinabove, particularly on notional promotion as the petitioner has already retired. 11. Since the decision has already been taken by the department with regard to ACP, it shall be complied and the fruit of that shall be provided to the petitioner within eight weeks from the date of receipt/production of a copy of this order. 12. With the aforesaid observation and direction, this writ petition is disposed of.