GOPALBHAI MOHANBHAI NAGODA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [His Lordships after stating the facts of the case, further observed :]

(2.) However, Mr. Budhbhatti, learned Counsel for the appellant submitted before us that the prosecution initiated against the appellant is without valid sanction and therefore, the entire trial held against the appellant is illegal and bad for want of proper sanction. Now, in the instant case, the Deputy District Development Officer, District Panchayat, Amreli had granted sanction vide order dated 22-5-1984. Mr. L. A. Thakar, PW-2, Exhibit 14 who has been examined in the case had stated that the Director of Anti-Corruption Bureau had sought sanction vide his letter dated 30/04/1984 to prosecute the appellant. Alongwith the said letter, the case papers were also placed. After examining the same, the sanction had been granted vide Exhibit 17. Mr. Thakar in his crossexamination, has stated that the appellant was appointed by the District Development Officer and the sanction to prosecute has been given by the Deputy District Development Officer. In this view of the matter, learned Counsel has raised similar contentions as were raised before the trial Court by referring to judgment given by this Court in Bachubha Ramsinhji v. Shivlal, I. P. S., Kutch & Ors., AIR 1970 Gujarat 180: (1970 GLR 827). In the said judgment, the facts were quite different from the facts of this case. In the said judgment, it was observed that fresh appointment for every promotion is required and therefore, when a Police Constable is appointed by the District Superintendent of Police and if he is promoted by the Deputy Inspector General of Police, then sanction should not be given by D. S. P. as it is not in consonance with Art. 311 of the Constitution of India. In the instant case Mr. D. N. Patel, learned Counsel for the State has contended that the appellant was appointed by the District Development Officer in the year 1965. The Deputy District Development Officer was competent to remove him as a competent officer under Gujarat Panchayat Service (Appointing Authority) Rules, 1967. According to Mr. Patel these Rules were in force when the sanction was granted. Under the said Rules, the District Development Officer has been vested with the powers to appoint Gram Panchayat Secretaries over and above other categories with which we are not concerned. The appellant is Gram Panchayat Secretary. In view of this it was contended that since the Deputy District Development Officer is Competent Authority to appoint Gram Panchayat Secretaries under the Rules of 1967 he is also Competent Authority to remove him in view of the provisions of Gujarat Panchayat Services (Discipline and Appeal) Rules, 1964. The said Rules of 1964 - schedule thereof - gives power to the Deputy District Development Officer to impose any penalty on the Secretary of the Gram Panchayat. Thus, according to submission of Mr. Patel, the Deputy District Development Officer who was possessing power of removal in the year 1964 and by virtue of new Rules of 1967 coming into force on the day on which the offence took place, the Deputy District Develoment Officer was Competent Authority for appointment and removal of Gram Pauchayat Secretaries, it must be held that the sanction in the present case is valid and proper. At this stage before dealing with the rival contentions, it is necessary to refer to the provisions of Section 6(l)(c) of Prevention of Corruption Act, 1947 :

(3.) In view of the aforesaid authorities on the subject it is clear that a person cannot be removed from service by the authority who is subordinate in rank. Thus, in view of this, a person can be removed only by an appointing authority or an equivalent authority possessing the same power to that of the appointing authority. However, in case, the authority subordinate in rank can remove or dismiss a person and if he causes or exercises such power, it is in patent violation of the provisions of Art. 311(1) of the Constitution of India. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311(1) become available. The subsequent authorisation made in favour of the authority passing the order of removal in regard to making appointments to the post held by the appellant cannot confer upon him the power to remove him. In the instant case also the appointment of the appellant has been made by the District Development Officer on 21-7-1965 and it is undis-putedly Deputy District Development Officer who is subordinate in rank to the District Development Officer, in the instant case could not have granted sanction because appointment was made by the District Development Officer. Even though the Deputy District Development Officer was holding the power of appointment (not brought on record), he cannot be termed as appointing authority in view of the facts that the appellant was appointed by District Development Officer who is undisputedly higher in rank to that of Deputy District Development Officer. In this view of the matter, we have to hold that the sanction granted by the Deputy District Development Officer in the instant case be termed as invalid sanction. The prosecution initiated against the appellant must fail for want of proper sanction.