Madras High Court· 31 July 2026
Under the Prevention of Corruption Act, 1988, must sanction be accorded by the authority competent to remove the public servant from the post held during the check period?
P.Murugesa Boopathi v. State of Tamil Nadu
Crl.R.C.No.2120 of 2024 · Crl.R.C.No.2120 of 2024
Coram: Justice G.K. Ilanthiraiyan
Answer
Yes. The competent authority is fixed by the post in which the wealth is alleged to have been amassed. Here the first accused held the post of Special Personal Assistant to the Hon'ble Minister for Agriculture during the check period, having been appointed by the Government under General Rule 11 of the Tamil Nadu State and Subordinate Services Rules; a person appointed under such an agreement shall not be regarded as a member of the service in which the post to which he is appointed is included, so the parent Department could not accord sanction. If the accused is treated as Vice-Chancellor, the competent authority is the Chancellor under Section 11(3)(b) of the Tamil Nadu Agricultural University Act, 1971; if he is treated as Special Personal Assistant, it is the Government which appointed him. A sanction accorded by the Board of Management, without even a resolution passed by the requisite majority, was therefore issued by an incompetent authority.
Headnote
Prevention of Corruption Act, 1988 — s.19 — s.13(2) read with s.13(1)(e) — Code of Criminal Procedure — s.197 — Tamil Nadu State and Subordinate Services Rules — General Rule 11 — Tamil Nadu Agricultural University Act, 1971 — s.11(3)(b) — Previous sanction — Competent authority — Discharge —
Prevention of Corruption Act, 1988 — s.19 — Previous sanction after the amendment —
Held: Where cognizance is taken after the amendment to the Act came into force, previous sanction of the competent authority is mandatory, and the earlier position that no previous sanction was required for prosecuting a retired Government servant no longer governs. (¶16, 17)
Tamil Nadu State and Subordinate Services Rules — General Rule 11 — Appointment by agreement — Sanction by the appointing authority —
Held further: A person appointed under an agreement is not a member of the service in which the post is included, so the competent authority to accord sanction is the Government which appointed him to that post, and not the parent Department. (¶11, 12)
Prevention of Corruption Act, 1988 — s.19 — Sanction by an incompetent authority — Proceedings a nullity —
Held further: A sanction order issued by an incompetent authority without due application of mind is non est in the eye of law; it renders the proceedings a nullity, and its validity may be questioned at the very inception. (¶19, 22)
Code of Criminal Procedure — s.197 — Indian Penal Code — s.109 — Want of sanction — Jurisdictional defect —
Held further: The absence of sanction under Section 197 for the offence under the Indian Penal Code is a jurisdictional defect affecting maintainability; with no sufficient materials to frame charges, the accused stand discharged. Criminal Revision Case allowed. (¶23, 26, 28)
In the Court's own words
Paragraph 11This contention cannot be countenanced for the simple reason that during the Check Period, the 1 st accused was served as Special Personal Assistant to the Hon’ble Minister for Agriculture. He was appointed by Government of Tamil Nadu. The 1st accused was appointed under General Rule 11 of the Tamil Nadu State and Subordinate Services Rules and it stipulates that a person appointed under an agreement shall not be regarded as a member of the service to which his appointment is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in any other service. It is relevant to extract the General Rule 11 (1) and (2) of the Tamil Nadu State and Subordinate Services Rules:- “11. Appointment by agreements. -(1) When in the opinion of State Government Special provisions inconsistent with any of these rules or of any other rules made under the proviso to article 309 of the Constitution of India or continuing by Article 313 of that Constitution (hereinafter referred to in this rule as the said rules) are required in respect of conditions of service, pay and allowances, pension, discipline and conduct with reference to any particular post, or any of them, it shall be open to the State Government to make an appointment to such post otherwise than in accordance with these rules or the said rules and to provide by agreement with the person so appointed for any of the matters in respect of which in the opinion of the State Government special provisions are required to be made and to the extent to which such provisions are made in the agreement, nothing in these rules or the said rules shall apply to any person so appointed in respect of any matter for which provision is made in the agreement: Provided that in every agreement, made in exercise of the powers conferred by this rule it shall further be provided that in respect of any matter in respect of which no provision has been made in the agreement the provisions of these rules or of the said rules shall apply. (2) A person appointed under sub-rule (1) shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that or any other service.”
Paragraph 12Therefore, the person, who is appointed under General Rule 11 of the Tamil Nadu State and Subordinate Services Rules is not entitled to claim any benefits only. That apart, even the specific case of the prosecution is that the 1st accused amassed wealth while he was holding the post of Special Personal Assistant to the Hon’ble Minister for Agriculture. Therefore, the Competent Authority to accord sanction is the Government of Tamil Nadu since the Government of Tamil Nadu only appointed the 1 st accused as Special Personal Assistant to the Hon’ble Minister for Agriculture.
Paragraph 22In the present case, the first accused retired from service as the Vice-Chancellor of the Tamil Nadu Agricultural University. During the check period, he did not hold the post of Professor in the University. A perusal of the sanction order dated 07.10.2022 reveals that there is no reference to any resolution having been passed by the Board of Management by the requisite majority before according sanction for prosecution. Therefore, the sanction order dated 07.10.2022 has been issued by an incompetent authority without due application of mind. If the first accused is treated as the Vice-Chancellor, the competent authority to accord sanction would be the Chancellor, in terms of Section 11(3)(b) of the Tamil Nadu Agricultural University Act, 1971. On the other hand, if the first accused is treated as the Special Personal Assistant to the Hon'ble Minister for Agriculture, the competent authority to accord sanction would be the Government of Tamil Nadu. Since the sanction order dated 07.10.2022 is non est in the eye of law, the prosecution cannot be sustained and is liable to be quashed.
Acts & Sections
s.19 Prevention of Corruption Act, 1988s.19(1)(b) Prevention of Corruption Act, 1988s.13(2) Prevention of Corruption Act, 1988s.13(1)(e) Prevention of Corruption Act, 1988s.2(c) Prevention of Corruption Act, 1988s.197 Code of Criminal Procedure, 1973s.109 Indian Penal Code, 1860General Rule 11 Tamil Nadu State and Subordinate Services Ruless.11(3)(b) Tamil Nadu Agricultural University Act, 1971s.11(1) Tamil Nadu Agricultural University Act, 1971s.9(1) Tamil Nadu Agricultural University Act, 1971One judgment a day. That's the whole habit.
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