JUDGMENT
Permod Kohli, J.
1. Petitioner joined the service as Engineer Assistant in the year 1961. Thereafter earned various promotions from time to time and retired on 31st January, 1997 on attaining the superannuation as Electrical Superintending Engineer. During his service as Superintending Engineer, he remained posted at Dhanbad and was also burdened with the extra responsibility of the work of General Manager-cum-Chief Engineer etc. It is alleged that on the basis of his seniority he was entitled to be considered for promotion with effect from 26th of June, 1996 on availability of vacancy of the Chief Engineer. The case of the petitioner came to be considered for promotion by the duly constituted Departmental Promotion Committee in its meeting held on 25th of June, 1996. He was approved for promotion being found fit subject to clearance of allegations. Despite being approved for promotion by the competent Departmental Promotion Committee, petitioner was not promoted and he eventually retired on 31″ January, 1997. It is alleged that the decision of the Departmental Promotion Committee was implemented vide Notification dated 1st of February, 1997. Petitioner has made allegations against Respondent No. 3 that with a view to deprive the petitioner of his right of promotion to the post of Chief Electrical Engineer, the Notification was issued a day after the superannuation of the petitioner. Petitioner was also denied the post retinl benefits. He made representations and consequently final pension was sectioned in his favour. It is further alleged that with a view to deny the benefit of promotion to the petitioner, he was served with chargesheet on 19th of November, 1998 i.e. after the date of his retirement. Petitioner while denying the charges levelled against him, stated that while discharging his duties as General Manager, he was required to function as quasi-judicial authority to decide cases pertaining to dispute between consumers an Respondent-Board under Clause-13 of the H.T. Agreement. Certain directions were issued by the High Court for disposal of those cases and it under the orders of the High Court that he has decided some cases
2. The main thrust of the argument of the learned Counsel appearing for the petitioner is that at the time of his consideration for promotion, no disciplinary proceedings were pending against him and hence he could not have been deprived of his promotion on being found fit by the competent and duly constituted Departmental Promotion Committee.
3. In the counter affidavit filed by the Bihar State Electricity Board, through its Law Officer, the factum of approval of petitioner’s promotion by the Departmental Promotion Committee in the meeting held on 31st of May, 1996 is specifically admitted. It is, however, stated that an enquiry was pending against him at the relevant time and hence his promotion was approved subject to clearance of the allegations and since the allegation against him has not been cleared till the date of his superannuation, therefore, he is not found eligible for the promotion. There is no denial of the fact that petitioner was considered for promotion to the post of Chief Electrical Engineer by the duly constituted Departmental Promotion Committee. In the meeting held on 31st May, 1996 he was found fit for promotion, The Minutes of the meeting issued on 25th of June, 1998 clearly indicate the name of the petitioner at Serial No. 14 and it is mentioned against his name “Fit for promotion subject to clearance of allegations”. It is also the admitted case of the parties that decision of the Departmental Promotion Committee was not implemented, qua the petitioner. Whereas, other approved Superintending Electrical Engineers were promoted vide Notification dated 01st February, 1997. Petitioner retired on 31st January, 1997. The Notification for promotion came to be issued a day after his retirement. No reasons have been given by the Respondents for delaying the issuance of Notification, when the petitioner was approved for promotion on 30th of May. During the service, petitioner was not issued any show cause notice nor any disciplinary proceedings were ever initiated against him. It is only after his retirement that for the first time a chargesheet was issued on 19th of November, 1998. It is a settled law that a Government servant can be denied of promotion on account of pendency of disciplinary proceedings and/or criminal proceedings only if at the time of his consideration for such promotion, the disciplinary/criminal proceedings had commenced against him. The commencement of such proceedings means a service of chargesheet by the disciplinary authority and framing of charge by the competent criminal court. The apex Court in the case of Union of India and Ors. v. K.V. Jankiraman and Ors. held as under:
On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary I 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 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.
4. In view of the law laid down by the Supreme Court, denial of promotion to the petitioner on the ground of pendency of allegations is totally unwarranted. No legal disciplinary proceedings were pending against him disentitling him from promotion, despite found fit by the competent and duly constituted Departmental Promotion Committee.
5. Denial of promotion to the petitioner is thus not justified and is violative of Articles 14 and 16 of Constitution of India.
6. This writ petition, accordingly, succeeds and is allowed. Respondents are directed to promote the petitioner to the post of the Chief Electrical Engineer with effect from 26th of June, 1996 when the vacancy was available. Petitioner shall be entitled to all consequential benefits on promotion including fixation of post-retiral benefits in the scale of Electrical Chief Engineer. Let necessary orders be issued within a period of two months.