Efforts of ACB, Law Department Dashed by Govt?

FOR more than 11 years now, the J&K Anti Corruption Bureau (ACB) has been looking into a corruption case in Govt Dental College and hospital (GDC) Srinagar wherein Principal of the institution has been accused of embezzlement of Govt funds by purchasing some dental machinery on very exorbitant rates.

As per the information provided under the Right to Information Act (RTI) by Govt Dental College Srinagar to Tanveer Hussain Khan, a resident of Mattan Anantnag, the purchase committee headed by Incharge Principal had purchased digital panoramic X-ray machine model and make of ORTHOPOS XG 5 DS CEPH-Single Sensor (AERB approved) for Rs. 46, 80, 000 lakh. The machine was supplied to the GDC, Srinagar by VILLA India, New Delhi.

When the information seeker compared the rates paid by the GDC Srinagar with the one being offered by the same company, it was found that there was a difference of Rs 16 lakhs between the actual purchases made and the rates offered. The GDC, Srinagar as per information provided under RTI had purchased eight complete vertical rack sterilization systems from VILLA India, New Delhi from time to time. The difference between the actual price and the amount paid was also huge.

Complaint before Anti Corruption Court 

An FIR was registered by Anti Corruption Bureau, then called State Vigilance Organisation (SVO), on the direction of Special Judge Anti Corruption Srinagar. A formal complaint was filed before Anti Corruption Court Srinagar by the same activist who had filed the initial RTI application.

Tanveer Hussain Khan through his counsel Advocate Shahid Ahmad had filed the case before the designated anti corruption judge in 2012. Tanveer has been alleging that in-charge Principal, GDC Srinagar, Dr. Riyaz Farooq had procured Digital Panoramic X-ray machine and Complete Vertical Rack Sterilization system.

The RTI activist had already sought information under RTI Act from GDC Srinagar which revealed that machinery was purchased at exorbitant rates. He and his colleagues had cross-checked the price tag. This was also authenticated by the SVO investigation team who worked on this case for years. During the last ten years, most of the local newspapers have reported this issue but the culprit is still not brought to justice.

After the application was filed before Special Judge Anti-Corruption court Srinagar, the said court directed Vigilance Organisation Kashmir (VOK) for initiating necessary action. “The report filed by Vigilance Organisation Kashmir (COK) is quite suggestive of the fact that the inquiry officer during the course of enquiry has been able to gather material to this fact that machines i,e Orthophos X G5 DS Ceph had been procured at exorbitant rates to cause undue pecuniary benefits to the principal Riyaz Farooq, V L Narayan and Hamid Bashir. If the inquiry officer has been able to gather material to this fact and if in his opinion any offence is disclosed for registration of formal FIR he is at liberty to do so and prior permission of the court is no way required in the matter,” the order passed by the special judge anti corruption reads.

Accordingly, verification No. 12/2012 was registered in Police Station VOK Srinagar which finally led to the registration of case vide FIR No. 33/2012 under section 5 (2) of J&K Prevention of Corruption Act and Section 120-b of Ranbir Penal Code (RPC).

Referring to the vigilance report, the court had said the report revealed that services of two experts HOD Oral Medicine and Radiology and HOD Periodontia Government Indira Gandhi College and Hospital Jammu were obtained and experts inspected the procured OPG machine and complete vertical rack sterilization system at GDC Srinagar and also physically compared and checked the specifications of both the dental machinery equipments and complete vertical rack sterilization system manufactured by Sirona Germany and Mocom Italy respectively.

For many years the Govt failed to take action against the incharge Principal. The sanction for prosecution was also not granted and Dr Riyaz continued to hold the post of Incharge Principal until he challenged the FIR before J&K High Court.

ACB moves to SC 

After 3 years, the then In-charge Principal Dr Riyaz Farooq challenged the FIR No. 33/2012, filed against him in Police Station, Vigilance Organization Kashmir, in a composite petition filed in J&K High Court vide OWP No. 1259/2015. On Nov 12, 2018, Dr Riyaz got relief when J&K High Court quashed the said FIR. While pronouncing the judgment Justice M A Magrey said :

“I, therefore in exercise of the inherent powers under Section 561-A Cr.P.C. to secure the ends of justice, quash the order passed by the Learned Special Judge Anti-Corruption, Srinagar, under Section 156(3) Criminal Procedure Code dated 13.08.2012, in FIR no. 33/2012 Police Station, Vigilance Organization Kashmir, as being without application of mind. In the above circumstances, the Preliminary Verification number 12/2012, the impugned FIR No. 33/2012, Police Station, Vigilance Organization Kashmir, and the resultant investigation of the FIR is hereby quashed, as being illegal.”

The Anti Corruption Bureau (ACB) didn’t stop here and filed an appeal before the Supreme Court against the High Court order. ACB had already filed an appeal in a similarly situated case in the apex court as J&K High Court had quashed another FIR against Dr. Saleem ur Rehman, former Director Health Services Kashmir (presently posted as Director Health Services Jammu).

In that case, Supreme Court double bench of Justice M R Shah and A S Bopana said that the High Court of J&K had committed a “grave error” in quashing the entire criminal proceedings by holding that a Magistrate has provided authorisation to a non-designated officer to investigate the FIR for the alleged offenses under the J&K Prevention of Corruption Act, 2006 was “Bad in Law”.

The SC order dated 29th October 2021 said that authorisation in the present case by the Senior Superintendent of Police, Vigilance Organisation is clearly covered by and falls within the scope of the second provision to Section 3.

“The High Court has not advertised the distinct features of the second provision to Section 3. It is submitted that the second proviso does not demand the requirement of giving reasons for conferring authority on a non-designated officer to conduct investigation,” reads the SC order.

Confirmation withheld 

Keeping the aforementioned order into consideration and the corruption case against Dr Riyaz Farooq being challenged before the Supreme Court, the J&K Law Department didn’t give its consent for confirmation of Dr Riyaz as full time Principal in Govt Dental College Srinagar as he has been holding the chair since 2004. The Law Department report submitted before the committee headed by Chief Secretary almost 1 ½ month back said that since the case was pending in the Supreme Court, his confirmation as principal can’t be considered. The report of the committee reads: “From the above it can be seen that Hon’ble High Court has decided the case of Dr Riyaz Farooq and other similar matters on the basis of legal issues which have serious repercussions on the pending investigation and trial of the cases under Prevention of Corruption Act , as such withdrawal of SLP  at this stage is not advisable as the matter is being heard by larger bench of Hon’ble Supreme Court. It will be advisable to await  outcome of the present SLP filed by Govt. Case of Dr Riyaz Farooq cannot be considered in isolation as it has been clubbed with other similar matters pending before Hon’ble Supreme Court in which similar questions of law have been decided by Hon’ble High Court.” 

The report further reads that the committee therefore decided to go by the advice of the Law Justice and Parliamentary Affairs department and await the outcome of the decision of Supreme Court for considering the regularization of Dr Riyaz Farooq as Principal GDC Srinagar.

The committee headed by CS advised J&K Health and Medical Education Department to create supernumerary posts if the avenues of promotion of other faculty members in GDC was getting blocked due to Dr Riyaz’s non confirmation as Principal.

Accused confirmed as Principal 

It was being assumed that Govt would create supernumerary posts and appoint a full time Principal in Govt Dental College & Hospital Srinagar, but all of sudden Health and Medical Education department dropped a bombshell on December 27, 2021 when the accused Dr Riyaz Farooq was appointed as Principal Govt Dental College Srinagar with retrospective effect from March 2010.

All the hard-work done by the then State Vigilance Organisation now called Anti-Corruption Bureau (ACB), Govt counsels and activists was dashed. Above all the suggestions made by J&K Law Department (as explained above) was also bypassed which otherwise was taken as gospel truth by the committee headed by Chief Secretary that was looking into regularization of Dr Riyaz Farooq.

The Govt through its order No: 805-JK (HME) of 2021 Dated 27.12.2021 issued by Additional Chief Secretary Health & Medical Education appointed Dr Riyaz Farooq as a full time Principal of GDC Srinagar. The order gives reference to a communication made by the General Administration Department (GAD) which means GAD had given its consent to this order. The order reads: “Sanction is hereby accorded to the appointment of Dr Riyaz Farooq Professor and Head department of Conservative Dentistry and Operative Dentistry, Govt Dental College Srinagar in pay level -14 (144200-218200 ) ( Pre-revised PB 4:  37400-67000 plus GP 10,000) with effect from 10.03.2010.” 

Conclusion 

Despite the Government claims that more than 100 officials have been prosecuted for their role in various scams and scandals, no action whatsoever has been taken against Principal GDC, Srinagar, Dr. Riyaz Farooq. This is despite the fact that the SVO has already registered a case against him for making exorbitant purchases at the college.

On one hand Prime Minister Narendra Modi, Home Minister Amit Shah and LG Manoj Sinha claim that corruption and nepotism has come down in J&K post Article 370 abrogation but on the ground one sees a different picture. If the committee constituted by Govt headed by CS had asked to wait for the Supreme Court’s decision in this particular case after getting a legal opinion from J&K Law Department , what prompted Govt to issue order on December 27th recently by appointing Dr Riyaz Farooq as a full time Principal in Govt Dental College Srinagar that too with retrospective effect from March 2010?

It is also unclear whether a No Objection Certificate (NOC) or Vigilance Clearance was given by the Anti- Corruption Bureau to Dr Riyaz Farooq? Such actions not only demoralize anti corruption crusaders but also dismays and discourages the morale of officers in Anti Corruption Bureau and other Govt organisations who work on corruption cases with utmost zeal for years but at the end, the Govt’s interference spoils the entire case.

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Dr Raja Muzaffar Bhat

Dr Raja Muzaffar Bhat is an Acumen Fellow and Chairman Jammu & Kashmir RTI Movement. Feedback [email protected]

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