Thursday, May 09, 2013

Does CBI compulsorily need Centre's nod to probe a JS? Madras HC says "no"

WHAT we all know is that if an official at the rank of a joint secretary and above is to be investigated, prior permission from the Centre is required. The sheer number of pending requests of investigating agencies mainly of the CBI will also tell you how difficult it is to get such an approval. But a Madras High Court judgement pronounced on April 29, 2013 by a bench comprising Justice R Banumathi and Justice K Ravichandrabaabu said investigating agencies don’t need to wait for permission as the provision in Section 6A of the Delhi Special Police Establishment (DSPE) Act, 1946, is only “directory, not mandatory, in nature”. Here are excerpts of the judgement:
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.


  1. That was an eye-opener for all law maintaining agencies and forces. To all these concerned people, I suggest please do your homework and have a better understanding of the law ...

  2. Every member in the All India Civil Service are allocated to a state cadre to which they belong (allocation of cadre is made in the beginning to tenure itself). What I cannot understand is what they are doing in Central Government in New Delhi.

    IAS, IPS and Forest Service members should be running their own state cadres. It is a fact that there is a lot of vacant posts in state.

    For the functioning of the Central (Union) Government there are almost a total of 54 Central Civil Services. The largest cadre of officers for Central Government belongs to Central Secretariat Service (Group A) which has almost 11,000 personnel ranging from post of Under Secretary (GOI) to Additional Secretary (GOI).

  3. What about the arrest of IPS,IRS officials?
    Are they not top bureaucrats?who decides their arrests,please throw some light in this regard.