GHULAM RASOOL SHAH Vs. STATE

JUDGEMENT

(1.) Government order No. 79-GAD (Vig). of 1999 dated 9-11-1999 and Government order No. 1590-Edu of 1999 dated 25-11-1999 are subject-matter of challenge in the present petition. Vide order dated 9-11-1999, sanction for prosecution was issued by the Government in General Administration Department (Vigilance) for prosecution of the petitioner along with other co-accused for offence under Section 5(2) Jammu and Kashmir Prevention of Corruption Act read with Section 409 and 120-B, RFC. The main ground of challenge to this order is contained in ground (a) of the writ petition.

(2.) What is urged is that the General Administration Department (GAD) of the Government has no competence to issue sanction for prosecution of the petitioner who belongs to the Education Department of the State Government and it is only the appointing authority who is entitled to remove the petitioner from the service, and is competent to grant sanction for prosecution. Reference is made to Section 6 of the Jammu and Kashmir Prevention of Corruption Act. Mr. Javid has submitted that the petitioner is a non-gazetted employee and could be removed by an authority subordinate to the Government, therefore, it is only the said authority who was competent to grant sanction in terms of clause (b) of Section 6 of the P. C. Act and not the Government. Further case of the petitioner is that the State Government had issued a circular dated 1-9-1998 and under clause (c) of the said circular, GAD was empowered to grant sanction for prosecution of a public servant and the said clause has been struck down by the Court vide judgment dated 21-8-1989 in writ petition No. 1863 of 1998 titled G. M. Hurra v. State. There after the Governor has issued a fresh circular which is at page 35 of the writ petition and under this circular, all cases relating to allegations of corruption against Government servants falling under Jammu and Kashmir Prevention of Corruption Act shall be examined and processed by the Home Department on being received from the Vigilance Commissioner or any other person and the cases shall be submitted to the Chief Minister by the Home Department along with its views for obtaining sanction for prosecution and it is the Home Department which shall endorse the copy of the sanction to the Administrative Department/appointing authority. In nutshell his argument is that the impugned sanction order has been issued without adhering to the procedure prescribed in the aforesaid circular. The order is also attacked on the ground of non-application of mind on the part of the sanctioning authority.

(3.) As far as the question of grant of sanction by the Government in GAD is concerned, what is required under Section 6 is that where a person is not removable from office, save by or with the sanction of the Government, the Government and in any other case by the authority competent to remove him from office. This section does not prescribe the person or the department who has to grant the sanction.