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2003 DIGILAW 1255 (PAT)

Khagendra Kumar v. State Of Bihar

2003-12-04

NAGENDRA RAI

body2003
Judgment 1. The petitioner has filed the present application for quashing the sanction order dated 9.7.2002 issued under the signature of the Secretary, Department of Law (Justice), Government of Bihar, Patna, by order of the Governor of Bihar, annexed as Annexure 5, as well as the communication dated 22.9.2002 by the Director (Administration)-cum-Deputy Secretary to the Education Department, Government of Bihar, to the Superintendent of Police, Rohtas, communicating the decision of the State Government granting sanction by the aforesaid order, annexed as Annexure 6 and the order dated 11.12.2002 passed by the Special Judge, Vigilance, Patna, in Special Case No. 85 of 1991, taking cognizance under sections 420, 467, 468, 471, 120-B/34 of the Indian Penai Code and 5 of the Prevention of Corruption Act. 2. The petitioner, at the relevant time, was the Sub-Divisional Education Officer, Sasaram. An F.I.R. was lodged by Shri Doman Singh Additional District Magistrate, Sasaram, on the order of the District Magistrate, Sasaram, before the Sasaram Police Station on 4.12.1991 alleging that then District Education Officer K.N. Sharma, the petitioner posted as Sub-Divisional Education Officer, Shivadhani Prasad Srivastava, Headmaster of Tilauthu High School and Alamgir, Assistant, poted in the office of the District Education Officer, all connived and made illegal selection of Peons and Clerks for pecuniary gain. All steps were taken in violation of the rules. The Police proceeded with the investigation and after completion of the same submitted charge-sheet. As the petitioner and others were public servants and the petitioner was removable by the Governent, relevant papers were sent to the Government for obtaining sanction and, thereafter, an order was issued expressed in the name of the Governor signed by the Secretary, Department of Law (Justice). The Court thereafter took cognizance as stated above. 3. Learned counsel appearing for the petitioner challenged the order of sanction I as well as the cognizance on the following grounds : (a) No offence has been committed even if entire allegations are accepted on its face value; (b) Order of sanction is invalid for three reasons; firstly that it does not disclose reasons in the sanction order, secondly that the State of Bihar is not competent to grant sanction as prior to that the petitioner has been transferred to the State . of Jharkhand by order dated 10.12.2001 Annexure-4) in terms of the provisions of the Bihar Re-Organisation Act and thirdly that the order of sanction has not been passed by the concerned department. 4. Learned counsel appearing for the Vigilance Department, on the other hand, submitted that the allegations as well as the materials collected during investigation make out a prima-facie case and at this stage, the court cannot reappraise the materials to decide the question that no offence has been committed. Order of sanction clearly shows that after perusal of the document, sanction has been granted and, thus, there is complete application of mind as the order does not suffer from that ground. So far as other ground is concerned, it is stated that the offence was committed while admittedly the petitioner was an employee of the erstwhile State of Bihar. His allotment to the State of Jharkhand was only a provisional one and as such he continued to be an employee of the State of Bihar and, accordingly, the order of sanction was valid in the eye of law. 5. So far as the first ground is concerned, the law is well-settled that at this stage, the court will quash the prosecution if the allegations do not constitute any offence or there is legal bar or the allegations are absurd and unbelievable. The materials show that the F.I.R.contains allegation against the petitioner with regard to his hand in making selection in breach of the rules for pecuniary gain and at this stage it cannot be said that any ground is made out to quash the prosecution. 6. So far as the order of sanction is concerned, that has been annexed as Annexure-5 and from a perusal thereof, it appears that the entire records were placed before the authority and after perusal of the same, sanction has been recorded. The law is well-settled that the order of sanction is an administrative order and it is not a quasi judicial order or a judicial order. Once the order indicates that the authority concerned has applied his mind and has granted sanction, then the order cannot be said to be invalid in the eye of law. (See State of Bihar V/s. P.P. Sharma, reported in A.I.R. 1991 S.C. 1260). 7. Once the order indicates that the authority concerned has applied his mind and has granted sanction, then the order cannot be said to be invalid in the eye of law. (See State of Bihar V/s. P.P. Sharma, reported in A.I.R. 1991 S.C. 1260). 7. So far as the other grounds regarding challenge to the sanction order are concerned, admittedly, the occurrence took place when the petitioner was an employee of the erstwhile State of Bihar. No doubt, prior to the order of sanction, he was provisionally transferred to the State of Jharkhand but on that ground he cannot be ceased to be an employee of the State of Bihar. Had the allotment been a final one, he was ceased to be an employee of the State of Bihar. No doubt, the petitioner is an employee of the Education Department, but under the Rules of Executive Business, the order of sanction is to be granted and issued by the Law Department. The same is evident from Entry No. 53 Note of the Rule of Executive Business under Article 166(3) of the Constitution of India. In this connection, reference may be made to the Full Bench judgment of the Madhya Pradesh High Court in the case of Sunderlal Shivana vs. State of Madhya Pradesh, reported in A.I.R. 1988 Madhya Pradesh 70, wherein the sanction givne by the Law and Legislative Affairs Department was held valid sanction under the Business Allocation Rules, although appointing and removing authority of the appellant therein was the Revenue Department. I fully agree with the view taken by the Full Bench of the Madhya Pradesh High Court. 8. In the result, there is no merit in this application and it is, accordingly, dismissed.