By the Court.—The petitioner who at present has retired had filed this writ petition in the year 1998 assailing the order dated 19.3.1998 praying for its quashing whereby sanction was granted by the State Government to prosecute the petitioner under the provisions of Section 197 Cr.P.C. read with Section 13(Ga) of the Prevention of Corruption Act, 1988.

2. A division bench of this Court entertained the petition and passed the following interim order on 29.4.1998 :

“Hon’ble S.K. Phaujdar,J.

Hon’ble J.C. Mishra,J.

Sanction to prosecute the present petitioner for an offence under the Prevention of Corruption Act is under challenge. The sanction was accorded on 19.3.98, as per Annexure V to the writ petition. The sanction order is not clear if the sanction was really given by the Principal Secretary (Forests) or the Governor of the State and if at all the matter was ever placed before the Governor. All these facts may be made clear alongwith other averments in the writ petition by the next date by the State through a counter-affidavit.

Till further orders no action or further action may be taken in pursuance to the sanction order dated 19.3.98 against the present petitioner. It is indicated, however, that the instant stay order may not stand on the way of recording a sanction order according to law.

List on 13.7.98.

Order Date : 29.4.98"

3. Two counter-affidavits have been filed one on behalf of the respondent-State and the second is stay vacation application alongwith a counter-affidavit also on behalf of the State. The petitioner has filed a rejoinder-affidavit to the same that is on record.

4. Sri U.N. Sharma, learned senior counsel assisted by Sri Chandan Sharma for the petitioner has urged that the order is being challenged on the ground of non-consideration of relevant material and non-application to the factual aspects that has resulted in an unjust order which deserves to be quashed. It is for this reason that the Court while passing the interim order on 29.4.1998 had left it open to the State Government to record a sanction order according to law. The point of challenge initially raised and mentioned in the interim order could not be successfully pressed by Sri Sharma as the sanction appears to be by a competent authority.

5. To substantiate his submissions on merits Sri Sharma has urged that an administrative inquiry on the same charges was made at the instance of a local MLA of Maharajganj district in which the petitioner was exonerated vide inquiry dated 14.8.1994.

6. Not satisfied with this, a frivolous inquiry was got instituted on the same set of facts and without following the procedure prescribed in the Government Order dated 12.9.1995 on which a report was submitted by the Vigilance Department on 24.9.1996 wherein the other complaints were not found to be proved except an allegation relating to possession of disproportionate assets particularly the construction of a house at Bailey Road, Allahabad.

7. Sri Sharma submits that according to the Government Order dated 12.9.1995 until the department makes a recommendation for an inquiry, the same could not have been instituted moreso when the departmental inquiry had ended in favour of the petitioner. This fact has neither been noticed nor considered while proceeding to grant sanction, hence the impugned order is vitiated.

8. He then submitted that there is a total non-consideration of the material that was placed on record, namely, the income tax returns certifying the income and the property of the petitioner and his wife. The availability of such material has not been denied in the counter-affidavit and therefore Sri Sharma contends that non-consideration of such material has prejudiced the cause of the petitioner which reflects non-application of mind on the part of the sanctioning authority.

9. The third contention of Sri Shamra is that even on the own showing of the respondents, the calculation made in the report dated 24.9.1996 is arithmetically wrong i