IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52432 of 2008 Nag Bansh Singh, village Danwar, PS Karakat, district Rohtas, presently residing at Home No. A/14, Bank of India Colony, Salimpur Dumra, PS Shastrinagar, district Patna – petitioner. Vs. Delhi Special Police through C.B.I. Establishment, Bihar, Patna Branch. For the petitioner :- Mr. Rajendra Pd. Singh, Sr. Adv. Mr. Ahtasham Ali Khan, Adv. For C.B.I. :- Mr. Bipin Kr. Sinha, Adv. 8 26-3-10 This application has been filed for quashing the order, dated 16.7.2008 passed by the Special Judge C.B.I. South Bihar, Patna in Special Case No. 7/2002, arising out of RC No. 14(A)/2002 by which the court has refused to discharge the petitioner. The only question that was pressed in this case was that the order of sanction has been passed by the Commissioner, Customs, Central Excise and Service Tax Department. The petitioner is holding the post of Superintendent Central Excise. According to the counsel appearing on behalf of the petitioner, the petitioner belongs to the General Central Services Group „B‟. The appointing authority as per rule 9(2) read with Entry 31 of Part II of Schedule of Central Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as „the CCS and CCA Rules‟) indicates that the Departmental Secretary, Government of India would be the proper authority who would be entitled to grant sanction for the prosecution of the petitioner. Counsel appearing on behalf of the C.B.I., on the other hand, submits that the petitioner‟s case would be covered by Entry 12 of Part II of Schedule of CCS and CCA Rules. Rule 9 of the aforesaid Rules describes the person who would be the appointing authority and reads as follows : “9. Appointments to other Services and Posts. “(1) All appointments to the Central Civil Services (other than the General Central Service) Group „B‟, Group „C‟ and Group „D‟ shall be made by the authorities 2 specified in this behalf in the Schedule: “Provided that in respect of Group „C‟ and Group „D‟ services, or civilian services or civilian posts in the Defence Services appointments may be made by officers empowered in this behalf by the aforesaid authorities. “(2) All appointments to Central Civil Posts, Group „B‟, Group „C‟ and Group „D‟, included in the General Central Service shall be made by the authorities specified in that behalf by a general or special order of the President, or where no such order has been made, by the authorities, specified in this behalf in the Schedule.” Part II deals with the Central Civil Services Group „B‟ and defines various services and the appointing authorities of the persons occupying those services. The headings in the Schedule are the description of services, the appointing authority, authority competent to impose penalties and penalties which it may impose with reference to items in rule 11. Items 12 and 32 of the said Schedule referred to by the counsel for the parties is being produced below : Sl. No. (1) Description of Service (2) Appointing Authority (3) Authority (4) Penalties (5) 12. Central Excise Service, Group „B‟- Superintendents Group „B‟ (including Deputy Headquarters Assistant to the Collector) and District Opium Officers, Group „B‟ Collector of Central Excise/Land Customs; Narcotics Commissioner. Collector of Central Excise/Land customs; Director of Inspection; Direction of Revenue Intelligence; Narcotics Commissioner. In respect of- (i) a member of the Service serving in (Statistics and Intelligence Branch Central Excise). (ii) any other member of the Service. Deputy Collector (Statistics and Intelligence Branch. Assistant All i) to (iv) 3 Collector of Central Excise, Group „A‟. Assistant Narcotics Commissioner. Deputy Collector of Central Excise Deputy Narcotics Commissioner Deputy Director, Revenue Intelligence. (i) (i) (i) to (iv) (i) to (iv) (i) to (iv) 32. General Central Service, Group „B‟- (i) Post in any Ministry or Department of Government of India, other than the post in respect of which specific provision has been made by a general or special order of the President (i-a) Posts outside a Ministry or Department of Government of India, other than the posts in respect of which specific provision has been made by a Secretary in the Ministry or Department. Secretary in the Ministry or Department [ In respect of posts in an office under the control of a Head of Department directly under the Government. In respect of other posts. Head of the Department Secretary in the Ministry or Department] All All 4 general or special order of the President. (ii) Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands, (iii) Delhi Administration- All posts. (iv) The Andaman and Nicobar Islands- All posts. ²(v) The Lakshadweep Administration- All posts Administrator Chief Secretary. Chief Commissioner. Administrator. In respect of other posts. Administrator/Head of the Department. In the Union Territory of Himacahl Pradesh. Chief Secretary. Chief Commissioner. In respect of posts in the Forest Department. Administrator. Secretary in the Ministry or Department Head of the Department Chief Conservator of Forests. All All (i) to (iv) All All (i) to (iv) All A Commissionerate is headed by a Commissioner who is responsible for collection of central excise duty under his jurisdiction and is also appointing and disciplinary authority for officers up to the rank of Group „B‟ as would be apparent from rule 9 of the Rules. The Schedule describes two types of groups under the Central Excise Services Group „B‟. Item no. 12 refers to the services of such persons who are posted at the head quarters whereas it would appear that item no.32 refers to services of Group „B‟ who are posted in any Ministry or department of Government of India on other than those posts 5 for which specific provision has been made by a general or special order by the President. It would appear that there is already a specific provision for Superintendent who come under Group „B‟ under clause 12 and as such Clause 32 would not be applicable in case of the petitioner. In any event it would appear that at the head quarter there are Additional Commissioner / Joint Commissioner who are assisted by Deputy Commissioner and Assistant Commissioner whereas the Deputy Commission and Assistant Commissioner are assisted by Superintendent, Inspector, Tax Assistant and others. It would, thus, appear that the Commissioner would be appointing authority at the head quarters whereas the Superintendent working in Group „B‟ under the Minister or in a Department of Government of India would be appointed by the Secretary in the Ministry or of the Department. Counsel for the petitioner refers to Annexure 8 which is a notification, dated 17.12.1986 issued by the Excise department under Article 309 of the Constitution. This notification deals and specifies the method of regulating the recruitment to the posts of Superintendent of Central Excise in the Collectorate of Central Excise. Learned counsel submits that on the basis of these rules it may be said that the Chief Commissioner would be the appointing authority. The rules merely deal with the manner in which promotions are to be made. They are not applicable for the purpose of deciding or holding that the Chief Commissioner is the appointing authority, merely because he is head of a committee for regulating the method of recruitment in the Excise Department. Thus, this court finds that there is no defect in the sanction order, dated 22.6.2005 passed by the Commissioner, Central Excise and the order of cognizance, dated 16.7.2007 passed in Special Case No. 7/2002 pending before the Special Judge, South Bihar, Patna cannot be quashed on the aforesaid ground. This application is dismissed. haque (Sheema Ali Khan, J.)