ORDER
Permod Kohli, J.
1. Government order No. 79-GAD (Vig). of 1999 dated 9-11-1999 and Government order No. 1590-Edu of 1999 dated 25-11-1999 are subject-matter of challenge in the present petition. Vide order dated 9-11-1999, sanction for prosecution was issued by the Government in General Administration Department (Vigilance) for prosecution of the petitioner along with other co-accused for offence under Section 5(2) Jammu and Kashmir Prevention of Corruption Act read with Section 409 and 120B, RPC. The main ground of challenge to this order is contained in ground (a) of the writ petition.
2. What is urged is that the General Administration Department (GAD) of the Government has no competence to issue sanction for prosecution of the petitioner who belongs to the Education Department of the State Government and it is only the appointing authority who is entitled to remove the petitioner from the service, and is competent to grant sanction for prosecution. Reference is made to Section 6 of the Jammu and Kashmir Prevention of Corruption Act.
Mr. Javid has submitted that the petitioner is a non-gazetted employee and could be removed by an authority subordinate to the Government, therefore, it is only the said authority who was competent to grant sanction in terms of Clause (b) of Section 6 of the P.C. Act and not the Government. Further case of the petitioner is that the State Government had issued a circular dated 1-9-1998 and under Clause (c) of the said circular, GAD was empowered to grant sanction for prosecution of a public servant and the said clause has been struck down by the Court vide judgment dated 21-8-1989 in writ petition No. 1863 of 1998 titled G.M. Hurra v. State. There after the Governor has issued a fresh circular which is at page 35 of the writ petition and under this circular, all cases relating to allegations of corruption against Government servants falling under Jammu and Kashmir Prevention of Corruption Act shall be examined and processed by the Home Department on being received from the Vigilance Commissioner or any other person and the cases shall be submitted to the Chief Minister by the Home Department along with its views for obtaining sanction for prosecution and it is the Home Department which shall endorse the copy of the sanction to the Administrative Department/appointing authority. In nutshell his argument is that the impugned sanction order has been issued without adhering to the procedure prescribed in the aforesaid circuit. The order is also attacked on the ground of non-application of mind on the part of the sanctioning authority.
3. As far as the question of grant of sanction by the Government in GAD is concerned, what is required under Section 6 is that where a person is not removable from office, save by or with the sanction of the Government, the Government and in any other case by the authority competent to remove him from office. This section does not prescribe the person or the department who has to grant the sanction.
4. In the present case, sanction has been given by the Government through Government order in the Department of GAD (Vigilance). This satisfies the requirement of Section 6. As far the Court is concerned, what is to be seen is that sanction is granted by the Government through a Government order.
5. Section 45 of the Jammu and Kashmir Constitution requires that all executive actions of the Government shall be expressed to be taken in the name of the Governor or by the Government of Jammu and Kashmir. Sub-section (2) of the aforesaid section further makes it clear that any instrument made and executed in the name of the Governor or Government of Jammu of Kashmir and authenticated in the manner prescribed in the rules shall not be called in question on the ground that it is no instrument or order made or executed by the Governor or Government as the case may be.
6. There is no allegation that the sanction has not been granted by the Government. The argument that it should have been by the Administrative Department and not by the GAD cannot be accepted. The Government being a competent authority and the sanction having been granted by a Government order duly authenticated in the manner prescribed under rules and having been issued in the name and by the order of Government of Jammu and Kashmir, the Court shall not look into the validity of the same on the grounds urged by the petitioner.
7. As far question of adherence to the procedure prescribed in the circular is concerned, the circular cannot and is not intended to over ride the provisions of Section 6. Even the circular relied upon by the petitioner fell for consideration before this Court in case Sheikh Mohammad Hafiz ^. State reported in 1999 SLJ 537 wherein a similar argument was raised, which was rejected by the Court in the following manner :--
'........The Government has accorded the sanction vide the impugned order which has been issued through the General Administration Department. The petitioner claims that the sanction is ex-facie without jurisdiction as he being the employee of Finance Department, the sanction ought to have been issued through that Department and not through the General Administration Department. It is on this plea that writ jurisdiction is invoked to quash the order. This argument needs only to be noticed as otherwise there is no force in the contention that the Government could not have, through its General Administration Department, issued the sanction order. Rule 55 of the Government Business Rules provides for distribution of subjects amongst the civil secretariat departments. Government order No. 10-GAD of 1997 dated 2-1-1997 accorded sanction to the transfer of Vigilance Organization from Home Department to General Administration Department. Circular No. 8-GAD of 1997 dated 31-3-1997 directs that the General Administration Department shall be substituted for the words Home Department appearing in circular No. GAD (Administration) 184/79 (Annexure-IV). It is thus beyond controversy that in matters pertaining to Vigilance Organization and its functioning, qua investigation etc. of cases under the Prevention of Corruption Act, are to be dealt with by the General Administration Department. The sanction in the case has been issued through General Administration Department. No fault can be thus found with the mode through which the Government has accorded the sanction for the prosecution of the alleged offenders.'
8. I do not find any infirmity in the aforesaid order having been passed by the Government in General Administration Department, particularly when the Department of Vigilance was being looked after by the said Department at the relevant time.
9. Now coming to the question of non-application of mind, learned counsel for the petitioner has not been able to point out any infirmity in the order as to in what manner, the same suffers from non-application of mind. I have perused the Government order. All the details leading to the grant of sanction have been indicated therein. No particular manner has been prescribed for grant of sanction. The challenge to this order is not sustainable.
Next to be examined is the question of validity of Government order dated 25-11-1999. The argument of learned counsel for the petitioner is that out of a number of employees involved in the prosecution, only three including petitioner have been suspended vide the impugned order. I have perused the sanction order dated 9-11-1999 as also suspension order dated 25-11-1999. Sanction for prosecution has been granted in respect to only three Government servants namely Zuhra Jabeen, Ghulam Mohiud-Din and Ghulam Rasool Shah (petitioner) and the same persons have been placed under suspension vide the impugned suspension order. Therefore, this argument of learned counsel is without any substance and is rejected.
The second ground of challenge to the suspension order is that same is non-speaking one. Reliance is placed on judgment of this Court of Arshad Ahmad v. State of J & K reported in 1975 JKLR 331. The facts of this case are clearly distinguishable from the above case. In the said case, suspension was on the basis of contemplated enquiry. While considering this question, this Court observed that the authority before placing an employee under suspension must apply his mind to the facts of the case and arrive at a conclusion that enquiry is required into the alleged misconduct. It was under these circumstances that the Court was of the opinion that suspension order should be speaking.
Suspension of a Government employee is permissible under Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. Rule 31 (1)(a) of the said Rules empowers the authority to place an employee under suspension when an enquiry into his conduct is contemplated. Rule 31(b) empowers the authority to place a Government employee under suspension, where a criminal charge against him is under investigation, enquiry or trial. Two situations are distinct. Under Rule 31(1)(b), whenever any complaint of commission of crime/offence is under investigation or trial, the Government servant can be placed under suspension.
Mr. Javid has referred to Government instructions appended to the Rule 31 and stated that suspension is the last resort and should be resorted to only if it is imperative. According to him, there was no occasion to place the petitioner under suspension as the investigation of the case had been completed and sanction for prosecution was already granted when the petitioner was placed under suspension, therefore, his suspension being in contravention to the Government instructions, is liable to be set aside. According to him, these instructions are statutory in nature and are to be followed in letter and spirit.
I have perused the Government instructions appended to the rule. These instructions provide certain guidelines to the authorities to place a Government servant under suspension. Under these instructions, public interest is the guiding factor in deciding whether or not a Government servant should be placed under suspension whether during the investigation or at any stage. It only requires that suspension should be resorted to, when a prima facie case is established.
Admittedly sanction for prosecution has been granted and, therefore, a prima facie case has been established against the petitioner. Whether the petitioner's remaining in office or his removal from office will be in public interest, can only be decided by the authority concerned and not by the Court. It is the authority, who is seized of the matter and has better opportunity to apply its mind and consider all pros and cons. Court cannot substitute its own opinion for that of the authority who has placed the petitioner under suspension. Therefore, there is no force in this contention of the petitioner.
The other limb of the petitioner's argument that the Government instructions are statutory in nature, has been considered by a Division Bench of this Court in case Mohammad Aslam Laigaroo v. State (1999 SLJ 429) wherein, similar argument that the Government instructions are statutory in nature was rejected. The Hon'ble Division Bench in the above case observed as under :--
'.........................The Government has issued instructions for the guidance of competent authorities while exercising the powers given by the above said rule. The class of cases where charge of misconduct for possessing assets disproportionate to known sources of income falling under Section 5 (2) of the Act is under investigation, the Government had initially issued circular No. GAD- (Adm) 184-87 is contained in Clause (c) which was struck down by this Court as ultra-vires to Rule 31 of CCA Rules. Thereafter fresh instructions were issued in the year 1990 under President Governor's Rule as reproduced hereinabove and by no stretch of reasoning it can be said that those instructions were Rules made under Section 124 of the Constitution of Jammu and Kashmir regulating the recruitment and conditions of service but those are purely the procedural instructions dealing with according to sanction for prosecution of a public servant in corruption cases, and did not deal with the powers enshrined in Rule 31 CCA Rules while ordering suspensions. These instructions cannot be equated with any statutory status as they are only guidelines purely executive in nature. They can only supplement Rule 31 CCA Rules but cannot suspend them'.
I do not find any illegality in the impugned order and all challenges to the same having failed, this petition is dismissed along with connected CMPs.