Criminal Appeal No 126 of 1977
Appeal by Special Leave from the Judgment and Order dated the 12 1 1976 of the Punjab and Haryana High Court in Crl
A No 583 72 RN Sachthey and HS Marwah for the Appellant
595 Hardyal Hardy and SK Sabbarwal for Respondent
The Judgment of the Court was delivered by SARKARIA J
This appeal by the State is directed against a judgment of the Punjab and Haryana High Court setting aside the conviction of the respondent herein in respect of offences under ss52 read with s51d of the Prevention of Corruption Act 1947 and 161 Penal Code on the sole ground that the sanction for his prosecution had not been accorded by a competent authority
NC Tandon respondent Was a civilian in the defence service in the rank of temporary Superintendent Building and Roads Grade I
It was alleged that he had accepted illegal gratification of Rs 300 from one Brij Bhushan Lal Con tractor on 11 3 1971 as a motive or reward for doing an official act
The Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula
The respondent s duty was to supervise that construction
The respondent it is alleged demanded the bribe as a reward for recording correct measurements
Brij Bhushan Lal did not in fact want to pay the gratifi cation
He therefore informed the Special Police Establish ment authorities who on 10 11 1971 trapped the accused and allegedly recovered the tainted money from his possession
The sanction for the prosecution of the accused was accorded by Brig
Naresh Prasad Chief Engineer North Western Zone Chandigarh on 24 6 1971
The Special Judge Ambala tried and convicted the accused on the aforesaid charges and sentenced him to one year s rigorous imprison ment and a fine of Rs 1000 
Tandon appealed to the High Court
The appeal was heard by a learned Single Judge who held that on 24 6 1971 when Brig
Naresh Prasad Chief Engineer North Western Zone passed the order of sanction for prosecution he had under the relevant Rules no plenary or delegated power to appoint to a post in Class III Service and that such a power was delegated to Chief Engineers of Zones for the first time on 14 1 1972
The learned Judge noted that the authority competent to appoint the accused respondent on 24 6 71 was the Chief Engineer Western Command Simla and not the Zonal Chief Engineer
He therefore concluded that the sanction for prosecution of the accused had not been given by the compe tent authority
On this short ground the High Court al lowed Tandon s appeal without going into the merits of the case
At the outset we may notice the general principles which govern the sanction for prosecution in such cases
Sub section1 of section 6 of the Prevention of Corruption Act says No court shall take cognizance of an offence punishable under section 161 or sec
164 or section 165 of the Indian Penal Code or under sub section 2 or sub section 3A of section 5 of this Act alleged to have been committed by a public servant except with the previous sanction of the authorities enumerat ed in clauses a b and c of that section
 596 Sub section 2 of the section provides Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section 1 should be given by the Central or State Government or any other authority such sanction  shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the Offence was allegedto have been committed emphasis added Thus the test as indicated in this sub section for judging the competency of the authority giving the sanction is whether at the time of the alleged commission of the offence it had the power to remove the public servant from his office
Another principle to be borne in mind is that unless a different intention appears the power to appoint to an office includes the power to dismiss or remove from that office vide section 16 General Clauses Act
We may further clear the ground and have a short swift look at the relevant statutory rules
It is common ground that the post of Superintendent Grade I B  R which the accused was temporarily holding is a post of Class Iii Services and the members of this Service are governed by Central Civil Services Classification Control and Appeal Rules 1965 for short hereinafter called 1965 Rules
The 1965 Rules were promulgated on November 20 1965
Rule 34 of the 1965 Rules repealed the earlier Rules of 1952 and any notification or orders issued thereunder in so far as they are inconsistent with the 1965 Rules
One of the provisions of the 1952 Rules which is relevant for our purpose and which has substantially been repro duced in the 1965 Rules is Rule 10
It reads as under 10
All first appointments to Class I and Class II Services shall be made by the Govern ment
All first appointments to Class III and Class IV services shall be made by the author ities specified in column 3 of Schedule IV in respect of posts mentioned against them or by officers empowered in this behalf by such authorities emphasis added
schedule IV reffered to in the rule ran as follows Schedule IV Vide Rules 10 11 12 14 and 19
Posts Appointing Auth Authority em No orities in respect powered to im of Class III and pose penalties Class IV posts iiiiv vide rule 10 and v of rule 13 for Class II officers Vide r 14 1 to 7  
Posts in lower for E in C C Es
of the mation under E in C s Commands
Branch X X X 597 The former Rule 10 as recast into Rule 9 of the 1965 Rules reads as below 91 All appointments to Central Civil Services other than General Civil Service Class II Class
III and Class IV shall be made by the authorities specified in this behalf in the Schedule
Provided that in respect of Class III and Class IV Civilian Services or civil ian posts in the Defence Services appointments may be made by officers powered in this behalf by the aforesaid authorities
emphasis added 2 All appointments to the Central Civil PostsClass II Class III and Class IV includ ed in the General Central Civil Service shall be made by the authorities specified in this behalf by a general or special order made by the authorities specified in this behalf in the Schedule
 It may be noted that both under the old Rule 10 and the Proviso to new Rule 91 the appointing authority is compe tent to delegate the power of appointment in respect of Class III Service
Rule 13 enumerated these penalties which could be im posed upon the servants subject to the Rules i Censure
ii Withholding of increments or promotion
iii Reduction to a lower post or time scale or to a lower stage in a time scale
iv Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders v Suspension
vi Removal from the civil service of the Government which does not disqualify from future employment
Vii Dismissal from the civil service of the Government which ordinarily disqualifies from future employment
viii Compulsory retirement   Rule 14 of 1952 Rules specified who could impose these penalties
It provided  141 Any of the penalties specified in rule 13 may be imposed on any person subject to these rules by the Government or by the appointing authority
598 2 Without prejudice to the provisions of sub rule 1 any of the penalties specified in clauses i ii iv or v of rule 13 may be imposed
a   b in the case of members of Class III and IV services by the authority empowered in this behalf by the appointing authority
Explanation
In this rule the expression appointing authority includes an officer empowered under Rule 10 to make first appoint ments to Class III and Class IV Services
 Rules 11 and 12 of the 1965 Rules correspond to Rules 13 and 14 of 1952 in all material aspects excepting two namely 1 Suspension has been taken out of the category of penalties and 2 the Explanation appended to Rule 14 has been omitted because in the 1965 Rules the subject matter of that Explanation has been made a part of the definition of Appointing Authority given in Rule 2a
The main submission of Mr Sachthey learned Counsel for the appellant is that by an order communicated per letter dated 27 4 1956 made under Rule 10 of the 1956 Rules subsequently reiterated in letter dated 23 1 1963 the Engineer in Chief had empowered all Chief Engineers in Military Engineering Service to make first appointments inter alia to posts in Class III Service and that the operation of the aforesaid order was preserved and contin ued by the saving clause in Rule 341 of the 1965 Rules
On these premises it is maintained that the High Court was wrong in holding that the Chief Engineer of the North Western Zone Chandigarh
was not the appointing authority competent to remove the accused from service
As against this Mr Hardyal Hardy learned Counsel for the respondent submits that the order dated 27 4 56 ex pressly delegates the power of making first appointments
only to the Chief Engineers of the three Commands then in existence and to the other authorities specified therein
It is pointed out that in 1956 when this order was made there were no Zonal Chief Engineers which came into exist ence on reorganization in December 1962 as a class apart working under the orerail administrative control of the Chief Engineers of Commands
The point pressed into argu ments is that a general delegation of the power in favour of Chief Engineers of Commands as a class cannot by any reckoning amount to a delegation in favour of the Zonal Chief Engineers also working under the control of the Chief Engineers of Commands
Mr Hardy has further submitted that the letter dated 23 1 1963 has not been issued under the signature of the Engineer in Chief nor can it by any stretch of language be construed as a delegation of the power of appointment under Rule 10
In the alternative it is submitted the power delegated by the Engineer in Chief to the Chief Engineers was a qualified one inasmuch as no power was given to them to dismiss 599 or remove a Government servant of Class III Service
It is maintained that by the aforesaid letter the Chief Engineers were empowered to impose only minor penalties other than that of dismissal and removal
It is urged in view of this restricted delegation in the matter of inflicting
penalties it cannot be said that on the principle underly ing Sec
16 of the General Clauses Act power of appointment will automatically include the power to remove the person appointed from his office
In reply Mr Sachthey has pointed out that the fetter placed on the power given to the Chief Engineers by the letter dated 27 4 56 in the matter of removal or dismissal of Class III servants operates only in case of persons appointed by the Engineer in Chief and not where he was appointed by the Chief Engineer of a Command
It is pointed out that in the instant case the accused was appointed not by E in C but by the Chief Engineer Western Command Simla
The main question that falls to be considered is whether the E in C s order communicated through letter dated 27 4 1956 can be construed as a valid delegation of the power of appointment tO posts in Class III Service to Zonal Chief Engineers which came into existence on re organization in December 1962  The material part of this letter reads as under TO The Chief Engineer Southern Command Poona Eastern Command Lucknow Western Command Simla X X X Subject Civilians in DefenCe Services Classification Control and Appeal Rules 1962
With reference to Rule 10 of the Civilians in Defence Services Classification Control and Appeal Rules 1962 I hereby authorise the authorities mentioned hereunder to make first appointments to Class III and IV Services to the extent indicated below Authority Posts a Chief Engineers  
All posts with the excepetion of per b CWO NDES  
manent appointments to the following categories i Superintendent BR Grade I    2
Under Rule 14b of CDS CCA Rules 1952 the under mentioned authorities are empowered to impose penalties referred to in Rule 13 ibid to the extent indicated below  a Chief Engineers and Penalties at i ii iv and v of Rule 13 on Class III employees in respect of whom E in C is the appoint ing authority 600 A perusal of this letter will show that it is among others addressed to the Chief Engineers Southern Command Eastern Command Lucknow and Western Command Simla
On the date of this letter there were only three Commands two commands were created subsequently
There were no Zones or Zonal Chief Engineers at that time
Therefore the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands as a class
Since the delegation has been to the Chief Engi neers of the Commands as a class it will cover the Chief Engineers of these Commands also which were subsequently created
But the question is will it take in Chief Engi neer of Zones and amount to a delegation of power in their favour too on their creation six years later in 1962  Answer to this question will depend on whether the Chief Engineers of Zones belong to the same class holding the same rank and exercising same administrative powers and control as the Chief Engineers of Commands  At the final hearing we had asked Shri Sachthey to make available to us the official order regulations and like material throwing light on this aspect of the problem From the material furnished by him it appears that the decision to reorganize the Military Engineering Service was taken by the Government in December 1962
Pursuant to that deci sion the Zones were created and Engineering Services in each Zone were placed under the charge of a Chief Engineer of that Zone
Chandigarh area was also made North Western Zone for this purpose
This reorganisation took effect from January 1 1963
The main object of creation of Zonal Chief Engineers as stated in C in C s letter No 66161IIE2A dated 13 12 1962 was to effect maximum possible decentralisation and thereby achieve speed and efficiency in the planning and execution of work services
 As is apparent from the letter dated 2226 12 1962 from the Engineer in Chief the Zonal Chief Engineers have to work under the command and technical control of CEs Com mands for the planning and execution of works
 E in C s letter No 6161IIE2A dated December 13 1962 addressed to the Chief Engineers Commands and others also makes it clear that under the re organized set up CE located at each Command HQ will be responsible for all engineer matters in the Command administration and training of engineer troops and for the coordination of works
Under the Command and technical control of this Chief Engineer there will be number of CEsCSWE on zonal basis
 These two letters unmistakably show that the zonal Chief Engineers are a class apart from the Chief Engineers of Com mands
Although extensive financial powers have been dele gated to the Zonal Chief Engineers which are almost the same as that of the Chief Engineers of the Commands the fact remains that they are under the overall administrative control of the Chief Engineer of the Commands concerned
601 In this view of the matter the scope of the delegation of the powers made under the letter dated 27 4 1956 must be construed as a delegation only to the Chief Engineers of Commands as distinguished from the Chief Engineers of Zones which were then not even in embryo
This takes us to the letter dated January 23 1963 from the Army HQrs E in C s Branch
In the first place this letter is not signed by the E in C
It appears to have been signed by some other person for E in Chief secondly it does not purport to have been issued pursuant to any sepa rately passed order of the E in C expressly delegating under Rule 10 the powers of appointment to posts in Class III Service
The opening sentence of this letter no doubt refers to HQ Letters No 66161II E2A dated 8 Dec 1962 para 4 and even No of 22 Dec 1962 which we have already noticed
There is nothing in them which delegates the powers of appointment to any posts to the Zonal Chief Engi neers
On the contrary para 8 of this letter says All Class III and IV personnel will be provided by the Command CE and will continue to be borne on the strength of that Command for purposes of a All documentation b Temporary promotion c Permanency d Retrenchment and reversion e Pension progress by the Unit but overall control by the Command CE Emphasis added Mr Sachthey has placed great stress on para 12 of this letter which says The normal powers of Chief Engineer in all matters relating to appointments punish ments etc
vest with each Zonal Chief Engi neer in accordance with this HQ letter No 27304ELD2 dated 27th April 1956
In exer cising these powers it will be necessary to consult CE Command prior to recruitment and replacements
 The argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27 1956 has construed it as delegating the powers of ap pointment punishment etc
to the Zonal CEs
also and therefore the Court should accept that interpretation
We are unable to accept this argument
We have already pointed out that this letter dated 23 1 63 has not been issued under the signature of the same authority from which the order dated 27 4 56 had emanated
It does not ex facie show that any order apart from that dated 27 4 56 had been passed by the Engineer in Chief under Rule 10
For reasons given earlier we have no hesitation in holding that the assumption made in Paragraph 12 of this letter ex tracted above to the effect that the Zonal Chief Engineers were vested with powers of appointments punishments etc
in accordance with HQ letter dated 27 April 1956 was clearly incorrect Perhaps that was why on 14 1 1972 the necessity of making a proper order delegating such powers to Zonal Chief Engineers and others under Rule 9 was felt by the Engineer in Chief
602 No other order of the Engineer in Chief made prior to 24 6 1971 under Rule 10 of 1952 Rules or under Rule 91 of the 1965 Rules delegating the power of appointment to posts in Class III Services has been placed before us
We have therefore no alternative but to hold that on 24 6 1971 Brig
Naresh Prasad Zonal Chief Engineer North Western Zone Chandigarh was not competent to remove the accused respondent Tandon from the post of Superintendent BR Grade I Chandigarh and as such the order sanctioning the prosecution of the respondent was bad in law
In view of this finding we do not think it necessary to examine the alternative contention advanced by Shri Hardy
The case fails because there is no valid sanction as re quired by the law
Obviously this does not preclude a fresh prosecution for the same offence but it is a matter for the State in the circumstances of the case to consider whether prosecution should be launched against the respond ent or not
We make this observation only to remove a possible misapprehension
In the result the appeal fails and is dismissed
PHP Appeal dismissed


Summary:
The respondent was convicted for an offence under section 52 read with section 51d of the Prevention of Corruption Act 1947 and section 161 of the IPC
The conviction was set aside by the High Court on the sole ground that the sanction for his prosecution was not accorded by a competent authority
The respondent was a Civilian in the Defence Services in the rank of temporary Superintendent Building and oRads Grade I The prosecution case was that he had accepted illegal gratification of Rs 300 from one Brij Bhushan LalContractor as a motive or reward for doing an official act
The sanction for the prosecution of the re spondent was accorded by Brig
Naresh Prasad Chief Engineer North Western Zone Chandigarh
The High Court held that Brig
Naresh Prasad had no authority under the relevant rules either plenary or dele gated to appoint a person to a post in class III service at the time when he passed the order for sanction of prose cution
That such a power was delegated to him subsequent ly
The learned Judge held that the authority was the Chief Engineer Western Command and not the Zonal Chief Engineer
Section 61 of the Prevention of Corruption Act pro vides that no Court shall take cognizance of the offence in question alleged to have been committed by a public servant except with the previous sanction of the officer enumerated in clauses a b and c of that section
Sub section 2 of section 6 further provides that where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section 1 should be given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed
The appellant contended that by an order communicated by letter dated 27 4 1956 subsequently reiterated in letter dr 23 1 1963 made under rule 10 the Engineer in Chief had empowered all Chief Engineers in Military Engg
Service to make first appointments and that the operation of the said order was preserved by the saving clause in rule 341 of the 1965 Rules
The appellant further contended that the fetter placed on the power given to the Chief Engineers in the matter of removal or dismissal of Class III servants operates only in case of persons appointed by the Engineer in Chief and not where he was appointed by the Chief Engi neer of a Command
In the present case the respondent was appointed not by Engineer in Chief but by the Chief Engi neer Western Command
The respondent contended that the order dated 27 4 1956 expressly delegates the power of making first appointments only to the Chief Engineers of the three commands then in existence and of the other departments specified therein
In 1956 when the order was made there were no zonal Chief Enginers which 594 came into existence in December 1962 as a class apart working under the overall administrative control of the Chief Engineers of Commands
A general delegation of the power in favour of the Chief Engineers of Commands as a class cannot by any reckoning amount to a delegation in favour of the Zonal Engineers also working under the control of the Chief Engineers of Commands
Secondly the letter dated 23 1 1963 was not issued under the signature of the Engineer in Chief nor can it be construed as a delegation of the power of appointment under rule 10
Alternatively the power delegated by the Engineer in Chief to the Chief Engi neers was a qualified one inasmuch as no power was given to them to dismiss or remove a Government servant of Class III service
Dismissing the appeal HELD 1  Unless a different intention appears the power to appoint to an office includes the power to dis miss or remove from that office as provided in section 16 of General Clauses Act
The post which the respondent was holding is a post of Class III service and the members of the service are governed by Central CiVil Services Classi fication Control and Appeal Rules 1965
1965 Rules repeal the earlier 1952 Rules and any notification or orders issued thereunder in so far as they were inconsistent with the 1965 rules
Under rule 10 appointments to Class III and Class IV Civilian Service are to be made by the officers empowered by the Engineer in Chief
Thus the appointing authority is competent to delegate the power of appointment
596 B C G H 597D 2 A perusal of the letter dated 27 4 1956 communicat ing the order of the Engineer in Chief shows that it is addressed to the Chief Engineers Southern Command Eastern Command and Western Command
On the date of this letter there were only 3 Commands two Commands were created subse quently
There were no Zones or Zonal Chief Engineers at that time
Therefore the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands as a class and it would cover Chief Engineers of the Commands which were subsequent ly created
But it would not include the Chief Engineers of Zone
Zonal Chief Engineers have to work under the Command and technical control of Chief Engineers of Com mands
Zonal Chief Engineers are a class apart from the Chief Engineers of Commands
They are under the administra tive control of the Chief Engineers of Command
Thus the delegation is to the Chief Engineers of Commands and not to the Zonal Chief Engineers
600 A B F H 601 A B 3 The letter dated 23 1 1963 is not signed by the Engineer in Chief
It appears to have been signed by some other person for Engineer in Chief
Nor does it purport to have been issued pursuant to any separately passed order of the Engineer in Chief expressly delegating the powers of appointment to posts in Class III service under Rule 10
There is nothing in the letter to show that the delegation was to the Zonal Chief Engineers
On the contrary para 8 of the letter talks of the Command Chief Engineers
The way in which the Engineer in Chief has construed the letter is not relevant
601 G H 602AB 4 Brig
Naresh Prasad Zonal Chief Engineer was not competent to remove the respondent and as such the order sanctioning the prosecution of the respondent was bad in law
602 C