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2012 DIGILAW 1395 (ALL)

Pradeep Shukla v. State of U. P. & Others

2012-06-28

ANURAG KUMAR, RAVINDRA SINGH

body2012
Ravindra Singh & Anurag Kumar, J.;— Heard Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri Samit Gopal, learned counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri N.I. Jafri, learned counsel for the C.B.I. 2. It is submitted by the learned counsel for the petitioner that the petitioner is a Senior Indian Administrative Service( I.A.S.) Officer, having been selected in the year 1981. At present the petitioner is working in the rank of Principal Secretary to the Government of U.P. in the pay scale of 22,400-525-24,500, which is above the Super Time Scale of I.A.S. this pay-scale is higher than the pay scale of Joint Secretary in the Government of India. The petitioner is an employee of the Central Government and holds the rank of the level of Additional Secretary, which is above the rank of Joint Secretary, Government of India. His services are governed by the Rules made by the Central Government in relation to his recruitment and service condition. All India Services comprise of three services namely I.A.S., I.P.S. and I.F.S., member of each are appointed by the Central Government, thereafter allocated to various State Cadres. These three services are different from all other services as it was designed by the maker of the Constitution of india as a tool of National Integration. Rule 6-1 of the Indian Administrative Service(Recruitment) Rules, 1954 specifies that all the appointments to the service shall be made by the Central Government. The Articles 311 of the Indian Constitution provides that the authority capable of dismissing a member of the civil service of the Union shall not be subordinate to that by which he was appointed. The F.I.Rs having the allegation with regard to the mis-management of N.R.H.M. in the State of U.P. have been lodged against the petitioner and others, in pursuance of the order dated 15.11.2011 passed by the Lucknow Bench of this court in Writ Petition No. 3611(MB.) of 2011 ( P.I.L.), connected with Writ Petition No. 3301( MB) of 2011( P.I.L.) and Writ Petition No. 267 ( MB) of 2011 ( P.I.L.). 3. In pursuance of the above mentioned order dated 15.11.2011 and after making preliminary inquiry, various F.I.Rs, including the F.I.R. of this case, have been registered against various persons. 3. In pursuance of the above mentioned order dated 15.11.2011 and after making preliminary inquiry, various F.I.Rs, including the F.I.R. of this case, have been registered against various persons. In one of these cases the petitioner has been arrested and sent to jail, the C.B.I. is investigating the matter, whereas it is barred by the provisions of section 6A of the Delhi Special Police Establishment Act, 1946(D.S.P.E. Act) the section 6A reads as under: "6A. Approval of Central Government to conduct inquiry or investigation. 1. The Delhi Special Police Establishment shall not conduct any inquiry or into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation allegation relates to : a. The employees of the Central Government of the level of Joint Secretary and above; b. Such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. 2. Notwithstanding anything contained in sub-section(1), no such approval be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988" 4. In the present case approval of the Central Government to conduct inquiry or investigation has not been obtained and without obtaining proper approval inquiry under the Delhi Special Police Establishment Act may not be conducted into any offence alleged to have been committed under the provisions of Corruption Act, 1988 against the employees of the Central Government of the level of the Joint Secretary and above, in such situation, the arrest of the petitioner as well as investigation of the above mentioned case is illegal, non est and void, inasmuch as the same is barred by the provisions of section 6A of D.S.P.E. Act, therefore, the investigation as well as all the consequential proceedings arising out of the impugned F.I.R. may be stayed, the petitioner may be released and he may not be arrested in other F.I.R. of similar in nature. 5. 5. In reply to the above submisison it is submitted by Sri N.I. Jafri, learned counsel appearing on behalf of the C.B.I. that the petitioner is an I.A.S. Officer, at present he is an employee of the State Government and he is not an employee of the Central Government. The provisions of seciton 6-A of the Delhi Special Police Establishment Act, 1946 shall not be applicable in the present case of the petitioner, he prays for and is granted 10 days time to file counter affidavit. 6. List on 13.7.2012, till then police report of concluding the investigation shall not be submitted in the court concerned. _