HIGH COURT OF MADHYA PRADESH : JABALPUR Present : Hon. Shri Justice [ENTITY] Hon. Smt. Justice [ENTITY] Writ Petition No.123[SECTION]/2001 [ENTITY], through Superintendent of Police, Rewa (M.P.) Office of Lakayukta, Near Old Secretariat, Bhopal (M.P.) Petitioner vs. [ENTITY], through Principal Secretary, Department of Law and Legislature, Bhopal (M.P.) Respondent Shri [ENTITY], Advocate for the petitioner/[ENTITY] ([ENTITY]a). Shri [ENTITY], Govt. Advocate for respondent/State. ORDER
(2.2.2011) By this petition, under [SECTION] and [SECTION] of the [ACT], the petitioner [ENTITY] (for short "[ENTITY]") seeks writ of certiorari for order dated 28.10.2000 (Annexure P-[SECTION]), passed by the Additional Secretary, Department of Law and Legal Affairs, Bhopal in relation to a case registered as Crime No.1[SECTION][SECTION]/98 at Bhopal Office of the [ENTITY] ([ENTITY]a) for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and also under [SECTION] of the [ACT], refusing sanction to prosecute public servants found involved therein and writ of mandamus requiring the respondent-State to reconsider and decide 2
the matter of granting sanction, independently on the basis of relevant material placed on record.
2. The case was registered on 18.11.1998, upon a complaint regarding irregularities, illegalities and corruption allegedly committed in the process of selection of Shiksha Karmis Grade III in the Janpad Panchayat Jawa, Distt. Rewa. Its investigation revealed that : -
(a) As many as 193 candidates were appointed whereas Janpad Panchayat, Jawa had invited applications for recruitment to only 1[SECTION]0 posts of Shiksha Karmis Grade III (110 in the School Education Department and [SECTION]0 in the Rajeev Gandhi Shiksha Mission).
(b) As against [SECTION]0 posts fallen vacant after the aforesaid selection process, in all 198 candidates were appointed.
(c) Appointments were made without following the statutory rules viz. Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 199[SECTION] and regulations including those governing reservation.
(d) The candidates, who were found ineligible in the process for selection to fill up 1[SECTION]0 advertised posts, were subsequently appointed against the post falling vacant.
(e) The procedure laid down in [ACT] for filling up the vacancies was not followed.
(f) Some of the candidates who were not even selected were appointed.
(g) Bonus marks were awarded without there being certificate of teaching experience or on the basis of false or irrelevant teaching experience certificate.
(h) Ineligible candidates were selected under the physically handicapped category as well as under
the Ex-Serviceman category.
(i) Over-aged candidates were also selected.
(j) Records relating to marks obtained were manipulated with a view to providing appointments to some of the candidates who were either related to members of the Selection Committee or were otherwise undeserving.
(k) In all 19 persons including [SECTION] public servants namely [ENTITY], the then Chief Executive Officer, Janpad Panchayat, Jawa, [ENTITY], the then Block Education Officer, [ENTITY], Lecturer in Govt. Higher Secondary School, Parouna, [ENTITY], Asstt. [ENTITY] Inspector, [ENTITY], the then Teacher at Govt. Higher Secondary School, Sitlaha and Smt. [ENTITY], Asstt. Teacher, Govt.
Primary School, Gohana, were found involved in the offences.
3. Investigation Report and the corresponding records were forwarded to Principal Secretary, Department of Law and Legal Affairs, Bhopal along with a letter of request for grant of sanction to prosecute all the six public servants under [SECTION] of the Act in respect of the offences punishable under the Act and that under [SECTION] of the [ACT] to prosecute [ENTITY], [ENTITY], and [ENTITY] for the offences punishable under the [ACT]. However, for the reasons [SECTION]
recorded in the order under challenge, the Additional Secretary in the Department declined to grant anyone of these sanctions.
[SECTION]. Instead of filing return, the respondent/State has preferred to raise preliminary objection, by way of Interim Application No.1[SECTION]20- W/2001, as to maintainability of the petition on the ground that the [ENTITY], being an integral part of the State Government, is bound by the final decision taken by the authority duly empowered under the [ACT]
5. In reply to I.A., while terming the objection as misconceived, the petitioner has submitted that if the arguments canvassed on behalf of the respondent were to be accepted, the provisions of the Madhya Pradesh [ENTITY] Evam Up-[ENTITY] Adhiniyam, 1981 would become redundant. The most significant aspect as highlighted by the petitioner viz. [ENTITY] is that it is a creature of a statute known as M.P. [ENTITY] Act, 19[SECTION][SECTION] which provides for the superintendence of investigation by the [ENTITY]a and not by the State Government in whom only administrative control is vested.
[SECTION]. In order to deal with the rival contentions, it is necessary to first refer to the scheme of the relevant local Acts.
[SECTION]. As indicated in the preamble, the M.P. Special Police Establish- ment Act, 19[SECTION][SECTION] was enacted to make provision for the constitution of a special police force for the investigation of certain offences af- fecting the public administration, for the superintendence and ad- ministration of the said force and jurisdiction of members of the said force in regard to the investigation of the said offences. [SECTION] of the Act provides that the offences to be investigated by the estab- lishment are to be specified by the State Government by way of no-
tification and whereas [SECTION] postulates that the administration of the establishment shall vest in the Director- General of Police; its sub-section (1) declares that the superinten- dence of investigation shall vest in the [ENTITY]a appointed under the Madhya Pradesh [ENTITY] Evam Up-[ENTITY] Adhiniyam, 1981.
8. The Adhiniyam has been enacted to make provision for the appointment and functions of certain authorities for the enquiry into the allegations against public servants and for matters connected therewith. Further, as defined in [SECTION] of the Ad- hiniyam -
(b) "allegations" in relation to a public servant means any affirmation that such public servant, -
(i) has abused his position as such to obtain any gain or favour to himself or to any oth-
er person or to cause undue harm to any person.
(ii) was actuated in the discharge of his func-
tions as such public servant by improper or corrupt motives.
(iii) is guilty of corruption; or
(iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary re-
sources or property is held by the public servant personally or by any member of his family or by some other person on his be-
half.
9. Upon analysis of the provisions of [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the Adhniyam, though in a different context, a Division Bench of this Court in Devesh Kumar Pathak v. State of M.P. 200[SECTION] ([SECTION]) MPHT 155, has already negatived the contention that the [ENTITY]a organization is a department of the State Government.
[SECTION]
For a ready reference, the relevant observations may be reproduced thus -
"We have already quoted the provisions of the 1981 Adhiniyam. It is to be borne in mind that in a par- liamentary system of democracy the concept of check and balances has its own paramountacy. True it is, there are various constitutional wings which carry out the same function. The citizenry grievances have to be looked into. The corruption in the public life is required to be curbed. A situation of non-corruptibility has to emerge. A Statuto- ry Authority like [ENTITY] is required to enquire into the allegations of corruption against the public functionaries. In many a country the concept of Ombudsman has emerged in various spheres. A [ENTITY] acts like a watch dog of the administration. It is, in a way comparable, to that of Ombudsman, the concept of which was first de- veloped in Sweden in 1809. In a democratic set up the role of Ombudsman or a [ENTITY] by no stretch of imagi- nation cannot be marginalized, for the grievance of the citizens are manifold. Every citizen, in praesenti has a right to know about the relevant information about what is going on in the country. There has to be transparency in the administration. As has been provided under the provisions of 1981 Adhiniyam the [ENTITY] has the pow- er to investigate into the activities of the Ministers. It is worth noting that the office of Ombudsman has a differ- ent role in the countries like Sweden, Denmark, Finland, Norway, New Zealand, Mauritius, Guyana and United Kingdom. The [ENTITY] has the authority to enquire into the wide range of things, namely, abuse of official posi- tion, corruption, etc. The appointment of [ENTITY] is done by the Governor after consultation with the leader of the opposition and he also enjoys powers of Contempt of Courts Act, 19[SECTION]1.
In view of the aforesaid analysis we are of the con- sidered opinion that the conclusion arrived at by the learned Single Judge that it is controlled by the State Government and hence, posting in the [ENTITY] does not amount to foreign service is not acceptable."
[SECTION]
10. The corresponding Special Leave Petition has been dismissed by the Apex Court vide order-dated 2[SECTION].10.2009 passed in SLP(Civil) No.2938[SECTION]/2009. It is, therefore, not at all necessary for us to delve any further into the question.
11. Coming to the other aspects of the matter, it may be seen that [SECTION] in terms does not describe the classes of persons entitled to apply thereunder. A Division Bench of Nagpur High Court, way back in 1952, had the occasion to explain ambit and scope of the power under [SECTION] (See. [PRECEDENT]). It was pointed out that (a) the power is given not only for enforcement of the fundamental rights conferred by [SECTION] of the [ACT] but also for any other purpose and (b) enforcement of legal right and the performance of legal duty cannot be exhaustive of the purpose for which the Court may issue any or-
der, direction or writ under the Article. The Bench further stated the following rule of construction of a constitutional provision -
"Though the interpretation of the [ACT] is subject to the ordinary principles applicable to the con- struction of statutes, it cannot be forgotten that the Court has to construe an organic instrument, which must be interpreted not in any narrow and pedantic sense but in a broad and liberal spirit. In a constitu- tion, large powers are usually conferred in a very few words."
12. Learned Govt. Advocate still contended that the Court has no jurisdiction to go into the validity of order refusing sanction as an absolute power to accord or withhold sanction has been conferred on the State Government. Attention has also been invited to the fact that the Governor of the State, in exercise of his powers conferred by [SECTION] of the [ACT], has framed the [ACT] whereun- 8
der the business of sanction for prosecution in cases investigated into by [ENTITY] has been allocated to Law and Legislative Affairs Department. However, the contention is apparent- ly misconceived. Even though, grant or refusal of sanction is purely an administrative act yet, the order is subject to judicial review and therefore, it is incumbent upon the State Government to record rea- sons (Matajog Dobey v. H.C. Bhari AIR 195[SECTION] SC [SECTION][SECTION] referred to). Accordingly, any unlawful exercise of discretion in granting or declining sanction can be controlled by a prerogative order.
[SECTION]. As pointed out already, the petitioner has prayed for issuance of writ in the nature of certiorari as well as in the nature of man- damus.
1[SECTION]. One of the fundamental principles in regard to the issuing of a writ of certiorari, is that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression "judicial acts" includes the exercise of quasi-judicial functions by administra- tive bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tri- bunals or bodies is not in an appellate but supervisory-capacity (T. C. Basappa v. T. Nagappa AIR 195[SECTION] SC [SECTION][SECTION]0 relied on).
15. Mandamus is a command issued to direct any person, corpo- ration, inferior Courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty im-
posed by statute or by the common law to do a particular act. The duty that may be enjoined by mandamus may be one imposed by the [ACT], a statute common law or by rules or orders having the force of law (See. [PRECEDENT]).
[SECTION]. For these reasons, we would hold that [ENTITY] has the locus stan- di to challenge the order refusing sanction for prosecution. As an ob- vious consequence, the objection as to maintainability of the petition is overruled.
1[SECTION]. Let us now advert to the factual aspects of the matter. A bare perusal of the order in question would show that sanction was re- fused primarily for the following reasons -
(i) The [ENTITY] organization had not preferred to register a case in respect of identical complaint relating to irregularities and illegalities in the pro- cess of selection of Shiskha Karmies in the Janpad Panchayat falling in the revenue district of More- na.
(ii) The then Chief Minister, vide his order dated 29.9.2000 had directed to take same action in the case as was taken in the complaint concerning Morena District.
18. In Mansukhlal Vithaldas Chauhan v. State of Gujarat (199[SECTION]) [SECTION] SCC [SECTION]22, the order passed by sanctioning authority me- chanically in obedience of even a mandamus issued by the High Court was held to be not valid. Norms and guidelines to be followed, 10
while considering the question of sanction, were laid down in the fol- lowing terms -
"Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evi- dence collected during investigation, it necessarily fol- lows, that the sanctioning authority has to apply its own independent mind for the generation of gen- uine satisfaction whether prosecution has to be sanc- tioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous considera- tion"
[Emphasis supplied]
19. In Gautam Bandopadhyay v. State of M.P., (1998) 1 JLJ [SECTION]8, a Division Bench of this Court had highlighted the considera- tions, which should weigh with the State Government while granting sanction for prosecution in a case investigated by an agency headed by the [ENTITY]a. Making reference to all the leading decisions on the subject including those rendered in K. Veeraswami v. Union of India, (1991) 3 SCC [SECTION]55 and [PRECEDENT], the Bench proceeded to quash the State Government's order-dated 02.05.199[SECTION] refusing sanction for permission to prosecute the Ministers found involved in the offences under the Act with the following observations -
"the State Government should have detailed its reasons in the order itself as to what led them to form the opinion that the recommendation given by the [ENTITY]a on the basis of investigation report, suffers from any infirmity and what was the reason which was not sufficient for granting sanction. If the order had been passed with reasons upon relevant considerations that would have formed the basis for non-grant of sanc-
tion. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the cir- cumstances must be such as to lead to conclusion of certain definiteness. The formation of an opinion must, therefore, be as to whether there are circumstances suggesting the existence of one or more of the matters, which dissuaded the Government from according sanc- tion. This Court will not go into the question of aptness or sufficiency of the grounds upon which subjective sat- isfaction of the authorities is based but it should be shown that the opinion has been formed after consider- ing relevant facts in an objective manner. This will be a very limited query by the Court."
20. However, as explained in Parkash Singh Badal v. State of Punjab AIR 200[SECTION] SC 12[SECTION][SECTION], law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard.
21. The Supreme Court, in a subsequent case between these par-
ties (M.P. [ENTITY] v. State of M.P. (200[SECTION]) 8 SCC [SECTION]88), while upholding the validity of sanction granted by the Governor in disregard of the advice of Council of Ministers to prosecute Ministers on the basis of material dis- closed in the report of [ENTITY]a, proceeded to observe as under -
"The Office of the [ENTITY]a was held by a for- mer Judge of this Court. It is difficult to assume that the said High Authority would give a report without any material whatsoever. We, however, do not intend to lay down any law in this behalf. Each case may be judged on its own merits It is now well-settled that refusal to take into consideration a relevant fact or acting on the basis of irrelevant and extraneous factors not germane 12
for the purpose of arriving at the conclusion would viti- ate an administrative order".
22. In the instant case also, at the relevant point of time, the of- fice of [ENTITY]a was held by a former Judge of the Supreme Court, who, after taking into consideration the outcome of the investigation and the scrutiny report submitted by legal advisor, had proceeded to conclude that the proposal made by Director General for prosecution of 19 persons including [SECTION] public servants named above in respect of the aforesaid offences deserved acceptance. The reasons assigned by the sanctioning authority clearly indicate that its discretion was affected by the order of the then Chief Minister and inaction on the part of [ENTITY]a organization in Morena case. Before refusing sanc- tion, the authority concerned -
(a) had failed to consider all the relevant facts, material and evidence and
(b) taken into account the inaction on the part of [ENTITY]a organization in the Morena case that was an irrelevant consideration.
23. It is well settled that a discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. If the proceeding, decision or order is influenced by extraneous considerations which ought not to have been taken into account, it cannot stand and needs correction, no matter what the nature of the statutory body or status or stature of the constitutional functionary though it might have acted in good faith. Here the court in its judicial review, is not concerned with the merits of the decisions, but its legality. It is, therefore, the function of the court to see that lawful authority is not abused (R.K. Jain v. Union of India, (1993) [SECTION] SCC 119 referred to).
[SECTION]
2[SECTION]. Lord [ENTITY] speaking for the House observed in Su- sannab Sharp v. Wakefield 1891 AC 1[SECTION]3 at p. 1[SECTION]9 -
discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: [ENTITY]'s case, according to law, and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular."
(Quoted with approval by the Apex Court in Rohtas Industries Ltd. v. S. D. Agarwal AIR 19[SECTION]9 SC [SECTION]0[SECTION]) and in the words of Lord [ENTITY] -
"a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider."
(Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., 19[SECTION][SECTION]-2 All ER [SECTION]80 at p. [SECTION]82)
25. However, learned Additional Secretary, instead of satisfying himself on the basis of the record pertaining to the investigation as to whether prosecution of the public servants would have been in the interests of justice, misdirected himself in point of law by taking into account irrelevant and extraneous considerations. None of the reasons recorded by him for refusal of sanction was legally relevant. Thus, viewed from any angle, the exercise of discretionary power to grant or refuse sanction, therefore, stood vitiated.
2[SECTION]. To sum up, the impugned order deserves to be set aside as palpably arbitrary and manifestly erroneous as based on irrelevant and extraneous considerations.
2[SECTION]. In the result, the writ petition stands allowed and the impugned order-dated 28.10.2000 (supra) is hereby quashed. The 1[SECTION]
Principal Secretary, Department of Law and Legal Affairs, Bhopal is directed to reconsider the matter for grant of sanction independently on the basis of the material furnished by the petitioner/[ENTITY] only.
Petition allowed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE 2.2.2011 2.2.2011