JUDGMENT

Virender Singh, J. - The sole question for consideration raised before this Court in this revision petition filed by the Special Police Establishment, Bhopal is as to whether the prosecution sanction under Section 19 of the Prevention of Corruption Act, 1988 can be granted by the authority superior to the authority competent to remove the public servant from the service ?

2. The question is no more res integra. The issue has been set at rest by a Division Bench headed by one of us (Justice Sheel Nagu) vide order dated 10.03.2022 rendered in CRR No.2283 of 2021 (Ankit Pathak vs State of M.P. through SPE). Having regard to identicality of the issue, suffice it to reproduce relevant paras of this order authored by Justice Nagu, which are as follows:

'3. The question before this Court is as to whether an order of grant of sanction for prosecution stands vitiated in law if the same is passed by an authority superior in rank to the authority competent to remove the government servant from service.

3.1 The aforesaid issue/question is no more res integra as it stands concluded by the decisions of Apex Court in Mahesh Prasad v. State of U.P., AIR 1955 SC 70, State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751 and , the relevant extract of which is reproduced below for ready reference and convenience:-

Mahesh Prasad (supra)

'In view of Article 311(1) of the Constitution of India and Rule 1705(c) of the Indian Railway Establishment Code, Vol. I (1951 Edition) a sanction under Section 6(c) of the Prevention of Corruption Act, 1947 (as it existed prior to August 12, 1952) may be given either by the very authority who appointed the public servant or by an authority who is directly superior to such appointing authority in the same department. But such sanction is also legal if it is given by an authority who is equal in rank or grade with the appointing authority. Sanction is invalid if it is given by one who is subordinate to or lower than the appointing authority.'

Babu Ram Upadhya (supra) The position with regard to the tenure of public servants and to the taking of disciplinary action against them under the present Constitution was as follows:

'(i) Every person who was a member of a public service described in Article 310 of the Constitution held office during the pleasure of the President or the Governor.

(ii) The power to dismiss a public servant at pleasure was outside the scope of Article 154 and, therefore, could not be delegated by the Governor to a subordinate officer, and could be exercised by him only in the manner prescribed by the Constitution.

(iii) This tenure was subject to the limitations or qualifications mentioned in Article 311.

(iv) Parliament or the legislature of States could not make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311.

(v) Parliament or the legislatures of States could make a law regulating the conditions of service of such a member which included proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 read with Article 311.

(vi) Parliament and the legislatures also could make a law laying down and regulating the scope and content of the doctrine of 'reasonable opportunity' embodied in Article 311 but the said law was subject to judicial review.

(vii) If a statute could be made by legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits.'

Sampuran Singh (supra)

26. The pleasure of the President under Article 310 of the Constitution cannot be fettered except by the provisions of Article 311. Accordingly the pleasure of the President or the Governor cannot be fettered by ordinary legislation. Again in Union of India v.K.S. Subramanian, (1976) 3 SCC 677, dealing with the pleasure of the President