No doubt, the language employed in the said provision (Section 6A of the DSPE Act) though prima facie gives an impression that seeking of such previous approval is mandatory when an investigation is sought to be proceeded against the employees of the Central Government of the level of Joint Secretary and above, in effect, in our considered view, it is not so.
We would not have ventured to consider the nature of the said provision to find out as to whether it is mandatory or directory but for sub-clause (2) of Section 6-A wherein it is stated that no such approval is necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration.
Thus, even in respect of an investigation against an employee of the Central Government of the level of Joint Secretary and above, if the case falls under sub-clause (2) of Section 6A, no such approval is necessary. Therefore, the approval contemplated under Section 6A projected as though to be necessary only under sub-clause (1) and not so under sub-clause (2). An over all reading of entire Section 6A would only show the legislative intent that the approval contemplated therein can at the best be only directory and not mandatory. As against the same person, there cannot be two yard sticks , one under sub-clause (1) and another under sub-clause (2), if the intent of the legislation is mandatory under all circumstances for seeking approval of the Central Government.
The order further distinguished joint secretaries at the state and at the Centre implying that a joint secretary level officer working at a state can’t expect any help from Section 6A of the DSPE Act. In other words, no prior permission from the Centre is required in case a joint secretary is working at a state. The order says: “No All India Service Officer is recruited to serve the Central Government, except on deputation to Central Government”.
Here is one more excerpt from the order where the appellant is an IPS officer posted in Tamil Nadu, and is empanelled as a joint secretary.
Mere empanelment of the appellant for holding the post of Inspector General vide proceedings No.I-21023/14/2010-IPS-IV of Government of India, Ministry of Home Affairs, dated 13.7.2010 does not confer any right of appointment on the appellant and the appellant, having not been appointed to the said post at the Centre, cannot claim that he is an Officer in the status of Joint Secretary level at the Centre.