SANDEEP AGARWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused-petitioner by way of this writ petition under Art. 226 of the Constitution of India has prayed to quash and set aside the order dated 26.2.2014 whereby the Additional Director (Administration) Medical & Health Services Rajasthan, Jaipur has granted prosecution sanction as required under Sec. 19 of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act") to prosecute the petitioner for offences punishable under the provisions of the Act in respect of FIR No 526/2013 registered at Police Station Headquarter Anti Corruption Bureau. Jaipur.

(2.) Brief relevant facts for the disposal of this writ petition are that aforesaid FIR came to be registered against several persons including the petitioner, who at the relevant time, was posted as Food Safety Officer at Jaipur for various offences including offences punishable under the Act arid after investigation charge-sheet was filed on 4.2.2014 before the Court concerned, whereas requisite sanction under Sec. 19 of the Act was granted on 26.2.2014 and thereafter cognizance was taken by the Court on 19.5.2014.

(3.) It was submitted by the learned counsel for the petitioner that the petitioner was appointed as Food Safety Officer by the Commissioner (Food Safety) and Director (Public Health), Medical and Health Services Rajasthan. Jaipur vide notification dated 26.7.2011 and thus, Commissioner (Food Safety) is his appointing authority and he continues to be so till date arid according to Art. 311 of the Constitution of India, a person holding a civil post under a State cannot be removed from his office by an authority sub-ordinate to that by which he was appointed. It was further submitted that as the sanction under Sec. 19 of the Act is required to be granted by an authority, who is competent to remove a public servant from his office, it follows that the sanctioning authority cannot be lower than the appointing authority in respect of those public servants to whom Art. 311 of the institution in applicable,. It was also submitted that while deciding about the authority competent to remove a public servant, Art. 311 of the Constitution of India has to be taken into consideration and Sec. 19 of the let must be interpreted in the light of the requirement of Art. 311 of the Constitution. Attention of the Court was also invited to the fact that the petitioner was posted as Food Safety Officer at District Jaipur-II by the Commissioner himself vide notification dated 10.8.2011 and later on he was transferred to District Hanumangarh vide order dated 7.2.2012 by the same authority. Attention of the Court was also invited to the fact that the petitioner was transferred from Hanumangarh to the Office of the Chief Medical Officer, Jaipur-l by the Commissioner vide order dated 12.2.2013 and he was also suspended from his office vide order dated 19.5.2014 by the same authority and all these facts clearly show that the Commissioner continued to be his appointing/removal authority, whereas the order under challenge has been passed by the Additional Director (Administration), which is admittedly an authority sub-ordinate to the appointing/removal authority of the petitioner and therefore, it being passed by an authority incompetent to grant prosecution sanction as required under Sec. 19 of the Act, the same is liable to be quashed and set aside and as a consequence thereof, subsequent order of cognizance, framing of charge and the criminal proceedings pending against the petitioner are also liable to be quashed and set aside as it is well settled legal position that in absence of requisite valid prosecution sanction criminal proceedings for an offence under the Act cannot proceed. It was also submitted that not only the order of sanction has teen granted by an authority which is incompetent, but also it has been granted mechanically without application of mind and without considering the material made available on record and without considering the representation made by the petitioner and without affording opportunity of hearing to him only on the basis of draft provided by the Department. It was also submitted that as per Sec. 37 of the Food Safety and Standards Act, 2006, Commissioner (Food Safety) is appointing authority for Food Safety Officer and as per Sec. 30(3) of the same, such power cannot be delegated to any other officer.