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Full Text of PJ Thomas CVC judgement by Supreme Court

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 348 OF 2010
Centre for PIL & Anr. …
Petitioner(s)
versus
Union of India & Anr. …
Respondent(s)
with
Writ Petition (C) No. 355 of 2010
JUDGMENT
S. H. KAPADIA, CJI
Introduction
1. The two writ petitions filed in this Court under Article
32 of the Constitution of India give rise to a substantial
question of law and of public importance as to the legality of
the appointment of Shri P.J. Thomas (respondent No. 2 in
W.P.(C) No. 348 of 2010) as Central Vigilance Commissioner
under Section 4(1) of the Central Vigilance Commission Act,
2003 (“2003 Act” for short).
2. Government is not accountable to the courts in
respect of policy decisions. However, they are accountable for
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the legality of such decisions. While deciding this case, we
must keep in mind the difference between legality and merit as
On 3rd
also between judicial review and merit review.
September, 2010, the High Powered Committee (“HPC” for
short), duly constituted under the proviso to Section 4(1) of
the 2003 Act, had recommended the name of Shri P.J. Thomas
for appointment to the post of Central Vigilance
Commissioner. The validity of this recommendation falls for
judicial scrutiny in this case. If a duty is cast under the
proviso to Section 4(1) on the HPC to recommend to the
President the name of the selected candidate, the integrity of
that decision making process is got to ensure that the powers
are exercised for the purposes and in the manner envisaged by
the said Act, otherwise such recommendation will have no
existence in the eye of law.
Clarification
3. At the very outset we wish to clarify that in this case
our judgment is strictly confined to the legality of the
3rd
recommendation dated September, 2010 and the
appointment based thereon. As of date, Shri P.J. Thomas is
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Accused No. 8 in criminal case CC 6 of 2003 pending in the
Court of Special Judge, Thiruvananthapuram with respect to
the offences under Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988 and under Section
120B of the Indian Penal Code (“IPC” for short) [hereinafter
referred to as the “Palmolein case”]. According to the
petitioners herein, Shri P.J. Thomas allegedly has played a big
part in the cover-up of the 2G spectrum allocation which
matter is subjudice. Therefore, we make it clear that we do
not wish to comment in this case on the pending cases and
our judgment herein should be strictly understood to be under
judicial review on the legality of the appointment of respondent
No. 2 and any reference in our judgment to the Palmolein case
should not be understood as our observations on merits of
that case.
Facts
4. Shri P.J. Thomas was appointed to the Indian
Administrative Service (Kerala Cadre) 1973 batch where he
served in different capacities with the State Government
including as Secretary, Department of Food and Civil Supplies,
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State of Kerala in the year 1991. During that period itself, the
State of Kerala decided to import 30,000 MT of palmolein. The
Chief Minister of Kerala, on 5th October, 1991, wrote a letter to
the Prime Minister stating that the State was intending to
import Palmolein oil and that necessary permission should be
On 6th November, 1991,
given by the concerned Ministries.
the Government of India issued a scheme for direct import of
edible oil for Public Distribution System (PDS) on the condition
that an ESCROW account be opened and import clearance be
granted as per the rules. Respondent No. 2 wrote letters to
the Secretary, Government of India stating that against its
earlier demand for import of 30,000 MT of Palmolein oil, the
present minimum need was 15,000 MT and the same was to
meet the heavy ensuing demand during the festivals of
Christmas and Sankranti, in the middle of January, 1992,
therefore, the State was proposing to immediately import the
said quantity of Palmolein on obtaining requisite permission.
The price for the same was fixed on 24th January, 1992, i.e.,
56 days after the execution of the agreement. The Kerala
State Civil Supplies Corporation Ltd. was to act as an agent of
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the State Government for import of Palmolein. The value of
the Palmolein was to be paid to the suppliers only in Indian
rupees. Further, the terms governing the ESCROW account
were to be as approved by the Ministry of Finance. This letter
contained various other stipulations as well. This was
responded to by the Joint Secretary, Government of India,
Ministry of Civil Supplies and Public Distribution, New Delhi
vide letter dated 26th November, 1991 wherein it was stated
that it had been decided to permit the State to import 15,000
MT of Palmolein on the terms and conditions stipulated in the
Ministry’s circular of even number dated 6th November, 1991.
It was specifically stated that the service charges up to a
maximum of 15% in Indian rupees may be paid. After some
further correspondence, the order of the State of Kerala is
stated to have been approved by the Cabinet on 27th
November, 1991, and the State of Kerala actually imported
Palmolein by opening an ESCROW account and getting the
import clearance at the rate of US $ 405 per MT in January,
1992.
5. The Comptroller and Auditor General (‘CAG’), in its
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report dated 2nd February, 1994 for the year ended 31st March,
1993 took exception to the procedure adopted for import of
Palmolein by the State Government. While mentioning some
alleged irregularities, the CAG observed, “therefore, the
agreement entered into did not contain adequate safeguards to
ensure that imported product would satisfy all the standards
laid down in Prevention of Food Adulteration Rules, 1956”.
This report of the CAG was placed before the Public
The 38th
Undertaking Committee of the Kerala Assembly.
Report of the Kerala Legislative Assembly – Committee on
Public Undertakings dated 19th March, 1996, inter alia,
referred to the alleged following irregularities:-
a. That the service fee of 15% to meet the fluctuation in
exchange rate was not negotiated and hence was
excessive. Even the price of the import product ought
not to have been settled in US Dollars.
b. That the concerned department of the State of Kerala had
not invited tenders and had appointed M/s. Mala Export
Corporation, an associate company of M/s. Power and
Energy Pvt. Ltd., the company upon which the import
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order was placed as handling agent for the import.
c. That the delay in opening of ESCROW accounts and in
fixation of price, which were not in conformity with the
circular issued by the Central Government had incurred
a loss of more than Rupees 4 crores to the Exchequer.
6. The Committee also alleged that under the pretext of
plea of urgency, the deal was conducted without inviting global
tenders and if the material was procured by providing ample
time by inviting global tenders, other competitors would have
emerged with lesser rates for the import of the item, which in
turn, would have been more beneficial.
7. The Chief Editor of the Gulf India Times even filed a
writ petition being O.P. No. 3813 of 1994 in the Kerala High
Court praying that directions be issued to the State to register
an FIR on the ground that import of Palmolein was made in
violation of the Government of India Guidelines. However, it
came to be dismissed by the learned Single Judge of the
Kerala High Court on 4th April, 1994. Still another writ
petition came to be filed by one Shri M. Vijay Kumar, who was
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MLA of the Opposition in the Kerala Assembly praying for
somewhat similar relief. This writ petition was dismissed by a
learned Single Judge of the Kerala High Court and even appeal
against that order was also dismissed by the Division Bench of
that Court vide order dated 27th September, 1994.
Elections were held in the State of Kerala on 20th May,
8.
1996 and the Left Democratic Front formed the government.
An FIR was registered against Shri Karunakaran, former Chief
Minister and six others in relation to an offence under Section
13(2) read with Section 13(1) (d) of the Prevention of
Corruption Act, 1988 and Section 120B of the IPC. The State
of Kerala accorded its sanction to prosecute the then Chief
Minister Shri Karunakaran and various officers in the State
hierarchy, who were involved in the import of Palmolein,
including respondent No. 2 on 30th November, 1999.
9. Shri Karunakaran, the then Chief Minister filed a
petition before the High Court being Criminal Miscellaneous
No.1353/1997 praying for quashing of the said FIR registered
against him and the other officers. Shri P.J. Thomas herein
was not a party in that petition. However, the High Court
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dismissed the said writ petition declining to quash the FIR
registered against the said persons. In the meanwhile, a
challan (report under Section 173 of the Code of Criminal
Procedure) had also been filed before the Court of Special
Judge, Thiruvananthapuram and in this background the State
of Kerala, vide its letter dated 31st December, 1999 wrote to
the Department of Personnel and Training (DoPT) seeking
sanction to prosecute the said person before the Court of
competent jurisdiction. Keeping in view the investigation of
the case conducted by the agency, two other persons including
Shri P.J. Thomas were added as accused Nos. 7 and 8.
10. Shri Karunakaran challenged the order before this
Court by filing a Petition for Special Leave to Appeal, being
Criminal Appeal No. 86 of 1998, which also came to be
dismissed by this Court on 29th March, 2000. This Court held
that “after going through the pleadings of the parties and
keeping in view the rival submissions made before us, we are
of the opinion that the registration of the FIR against the
appellants and others cannot be held to be the result of mala
fides or actuated by extraneous considerations. The menace
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of corruption cannot be permitted to be hidden under the
carpet of the legal technicalities…”. The Government Order
granting sanction (Annexure R-I in that petition) was also
upheld by this Court and it was further held that “our
observations with respect to the legality of the Government
Order are not conclusive regarding its constitutionality but are
restricted so far as its applicability to the registration of the
FIR against the appellant is concerned. We are, therefore, of
the opinion that the aforesaid Government Order has not been
shown to be in any way illegal or unconstitutional so far as the
rights of the appellants are concerned…”. Granting liberty to
the parties to raise all pleas before the Trial Court, the appeal
was dismissed. In the charge-sheet filed before the Trial
Court, in paragraph 7, definite role was attributed to Accused
No. 8 (respondent No. 2 herein) and allegations were made
against him.
11. For a period of 5 years, the matter remained pending
with the Central Government and vide letter dated 20th
December, 2004, the Central Government asked the State
Government to send a copy of the report which had been filed
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before the Court of competent jurisdiction. After receiving the
request of the State Government, it appears that the file was
processed by various authorities and as early as on 18th
January, 2001, a note was put up by the concerned Under
Secretary that a regular departmental enquiry should be held
against Shri P.J. Thomas and Shri Jiji Thomson for imposing a
major penalty. According to this note, it was felt that because
of lack of evidence, the prosecution may not succeed against
Shri P.J. Thomas but sanction should be accorded for
prosecution of Shri Jiji Thomson. On 18th February, 2003, the
DoPT had made a reference to the Central Vigilance
Commission (“CVC” for short) on the cited subject, which was
responded to by the CVC vide their letter dated 3rd June, 2003
and it conveyed its opinion as follows: –
“Department of Personnel & Training
may refer to their DO letter
No.107/1 /2000-AVD.I dated
18.02.2003 on the subject cited above.
2. Keeping in view the facts and
circumstances of the case, the
Commission would advise the
Department of Personnel & Training to
initiate major penalty proceedings
against Shri P.J. Thomas, IAS (KL:73)
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and Shri Jiji Thomson, IAS (KL:80)
and completion of proceedings thereof
by appointing departmental IO.
3. Receipt of the Commission’s
advice may be acknowledged.”
12. Despite receipt of the above opinion of CVC, the
matter was still kept pending, though a note was again put up
on 24th February, 2004 on similar lines as that of 18th
January, 2001. In the meanwhile, the State of Kerala, vide its
letter dated 24th January, 2005 wrote to the DoPT that for
reasons recorded in the letter, they wish to withdraw their
request for according the sanction for prosecution of the
officers, including respondent No. 2, as made vide their letter
dated 31st December, 1999. The matter which was pending
for all this period attained a quietus in view of the letter of the
State of Kerala and the PMO had been informed accordingly.
In its letter dated 4th November, 2005, the State took
13.
the position that the allegations made by the Investigating
Agency were invalid and the cases and request for sanction
against Shri P.J. Thomas should be withdrawn.
13
On 18th May, 2006 again, the Left Democratic Front
14.
formed the Government in the State of Kerala with Mr.
Achuthanandan as the Chief Minister. This time the
Government of Kerala filed an affidavit in this Court
disassociating itself from the contents of the earlier affidavit.
Vide letter dated 10th October, 2006, the Chief
15.
Secretary to the Government of Kerala again wrote a letter to
the Government of India informing them that the State
Government had decided to continue the prosecution
launched by it and as such it sought to withdraw its above
letter dated 24th January, 2005. In other words, it reiterated
its request for grant of sanction by the Central Government.
letter dated 25th November,
Vide 2006, the Additional
Secretary to the DoPT wrote to the State of Kerala asking them
for the reasons for change in stand, in response to the letter of
the State of Kerala dated 10th October, 2006. This action of
the State Government reviving its sanction and continuing
prosecution against Shri Karunakaran and others, including
Respondent No. 2, was challenged by Shri Karunakaran by
filing Criminal Revision Petition No. 430 of 2001 in the High
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Court of Kerala on the ground that the Government Order was
liable to be set aside on the ground of mala fide and
arbitrariness. This petition was dismissed by the High Court.
In its judgment, the High Court referred to the alleged role of
Shri P.J. Thomas in the Palmolein case. The action of the
State Government or pendency of proceedings before the
Special Judge at Thiruvananthapuram was never challenged
by Shri P.J. Thomas before any court of competent
jurisdiction. The request of the State Government for sanction
by the Central Government was considered by different
persons in the Ministry and vide its noting dated 10th May,
2007, a query was raised upon the CVC as to whether
pendency of a reply to Ministry’s letter, from State
Government in power, on a matter already settled by the
previous State Government should come in the way of
empanelment of these officers for appointment to higher post
in the Government. Rather than rendering the advice asked
for, the CVC vide its letter dated 25th June, 2007 informed the
Ministry as follows :
“Department of Personnel & Training may
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refer to their note dated 17.05.2007, in file
No.107/1/2000-AVD-I, on the above
subject.
2. The case has been re-examined and
Commission has observed that no case is
made out against S/Shri P.J. Thomas and
Jiji Thomson in connection with alleged
conspiracy with other public servants and
private persons in the matter of import of
Palmolein through a private firm. The
abovesaid officers acted in accordance with
a legitimately taken Cabinet decision and
no loss has been caused to the State
Government and most important, no case is
made out that they had derived any benefit
from the transaction. (emphasis supplied)
3. In view of the above, Commission
advises that the case against S/Shri P.J.
Thomas and Jiji Thomson may be dropped
and matter be referred once again thereafter
to the Commission so that Vigilance
Clearance as sought for now can be
recorded.
4. DOPT’s file No.107/1/2000-AVD-I
along with the records of the case, is
returned herewith. Its receipt may be
acknowledged. Action taken in pursuance
of Commission’s advice may be intimated to
the Commission early.”
16. It may be noticed that neither in the above reply nor
on the file any reasons are available as to why CVC had
changed its earlier opinion/stand as conveyed to the Ministry
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vide its letter dated 3rd June, 2003. After receiving the above
advice of CVC, the Ministry on 6th July, 2007 had recorded a
note in the file that as far as CVC’s advice regarding dropping
all proceedings is concerned, the Ministry should await the
action to be taken by the Government of Kerala and the
relevant courts.
17. The legality and correctness of the order of the Kerala
High Court dated 19th February, 2003 was questioned by Shri
Karunakaran by filing a petition before this Court on which
leave was granted and it came to be registered as Criminal
Appeal No. 801 of 2003. This appeal was also dismissed by
this Court vide its order dated 6th December, 2006. However,
the parties were given liberty to raise the plea of mala fides
before the High Court. Even on reconsideration, the High
Court dismissed the petition filed by Shri Karunakaran raising
the plea of mala fides vide its order dated 6th July, 2007. The
High Court had, thus, declined to accept that action of the
State Government in prosecuting the persons stated therein
was actuated by mala fides. The order of the High Court was
again challenged by Shri Karunakaran by preferring a Petition
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for Special Leave to Appeal before this Court. This Court had
stayed further proceedings before the Trial Court. This appeal
remained pending till 23rd December, 2010 when it abated
because of unfortunate demise of Shri Karunakaran.
18th
18. Vide order dated September, 2007, the
Government of Kerala appointed Shri P.J. Thomas as the
Thereafter, on 6th October, 2008 CVC
Chief Secretary.
accorded vigilance clearance to all officers except Smt.
Parminder M. Singh. We have perused the files submitted by
the learned Attorney General for India. From the said files we
find that there are at least six notings of DoPT between 26th
June, 2000 and 2nd November, 2004 which has recommended
initiation of penalty proceedings against Shri P.J. Thomas and
yet in the clearance given by CVC on 6th October, 2008 and in
the Brief prepared by DoPT dated 1st September, 2010 and
placed before HPC there is no reference to the earlier notings
of the then DoPT and nor any reason has been given as to why
CVC had changed its views while granting vigilance clearance
on 6th October, 2008. On 23rd January, 2009, Shri P.J.
Thomas was appointed as Secretary, Parliamentary Affairs to
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the Government of India.
19. The DoPT empanelled three officers vide its note dated
1st September, 2010. Vide the same note along with the Brief
the matter was put up to the HPC for selecting one candidate
out of the empanelled officers for the post of Central Vigilance
Commissioner. The meeting of the HPC consisting of the
Prime Minister, the Home Minister and the Leader of the
Opposition was held on 3rd September, 2010. In the meeting,
disagreement was recorded by the Leader of the Opposition,
despite which, name of Shri P.J. Thomas was recommended
for appointment to the post of Central Vigilance Commissioner
by majority. A note was thereafter put up with the
recommendation of the HPC and placed before the Prime
On 4th
Minister which was approved on the same day.
September, 2010, the same note was submitted to the
President who also approved it on the same day.
Consequently, Shri P.J. Thomas was appointed as Central
Vigilance Commissioner and he took oath of his office.
Setting-up of CVC
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20. Vigilance is an integral part of all government
institutions. Anti-corruption measures are the responsibility
of the Central Government. Towards this end the Government
set up the following departments :
(i) CBI
(ii) Administrative Vigilance Division in DoPT
(iii) Domestic Vigilance Units in the Ministries/
Departments, Government companies, Government
Corporations, nationalized banks and PSUs
(iv) CVC
21. Thus, CVC as an integrity institution was set up by the
Government of India in 1964 vide Government Resolution
pursuant to the recommendations of Santhanam Committee.
However, it was not a statutory body at that time. According
to the recommendations of the Santhanam Committee, CVC,
in its functions, was supposed to be independent of the
executive. The sole purpose behind setting up of the CVC was
to improve the vigilance administration of the country.
22. In September, 1997, the Government of India
established the Independent Review Committee to monitor the
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functioning of CVC and to examine the working of CBI and the
Enforcement Directorate. Independent Review Committee vide
its report of December, 1997 suggested that CVC be given a
It also recommended that the selection of
statutory status.
Central Vigilance Commissioner shall be made by a High
Powered Committee comprising of the Prime Minister, the
Home Minister and the Leader of Opposition in Lok Sabha. It
also recommended that the appointment shall be made by the
President of India on the specific recommendations made by
the HPC. That, the CVC shall be responsible for the efficient
functioning of CBI; CBI shall report to CVC about cases taken
up for investigations; the appointment of CBI Director shall be
by a Committee headed by the Central Vigilance
Commissioner; the Central Vigilance Commissioner shall have
a minimum fixed tenure and that a Committee headed by the
Central Vigilance Commissioner shall prepare a panel for
appointment of Director of Enforcement.
On 18th December, 1997 the judgment in the case of
23.
Vineet Narain v. Union of India [(1998) 1 SCC 226] came to
be delivered. Exercising authority under Article 32 read with
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Article 142, this Court in order to implement an important
constitutional principle of the rule of law ordered that CVC
shall be given a statutory status as recommended by
Independent Review Committee. All the above
recommendations of Independent Review Committee were
ordered to be given a statutory status.
The judgment in Vineet Narain’s
24. case (supra) was
followed by the 1999 Ordinance under which CVC became a
multi-member Commission headed by Central Vigilance
Commissioner. The 1999 Ordinance conferred statutory
status on CVC. The said Ordinance incorporated the
directions given by this Court in Vineet Narain’s case. Suffice
it to state, that, the 1999 Ordinance stood promulgated to
improve the vigilance administration and to create a culture of
integrity as far as government administration is concerned.
25. The said 1999 Ordinance was ultimately replaced by
the enactment of the 2003 Act which came into force with
effect from 11th September, 2003.
Analysis of the 2003 Act
26. The 2003 Act has been enacted to provide for the
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constitution of a Central Vigilance Commission as an
institution to inquire or cause inquiries to be conducted into
offences alleged to have been committed under the Prevention
of Corruption Act, 1988 by certain categories of public
servants of the Central Government, corporations established
by or under any Central Act, Government companies, societies
and local authorities owned or controlled by the Central
Government and for matters connected therewith or incidental
thereto (see Preamble). By way of an aside, we may point out
that in Australia, US, UK and Canada there exists a concept of
In Hongkong we have an Independent
integrity institutions.
Commission against corruption. In Western Australia there
exists a statutory Corruption Commission. In Queensland, we
have Misconduct Commission. In New South Wales there is
Police Integrity Commission. All these come within the
category of integrity institutions. In our opinion, CVC is an
This is clear from the scope and ambit
integrity institution.
(including the functions of the Central Vigilance
Commissioner) of the 2003 Act. It is an Institution which is
statutorily created under the Act. It is to supervise vigilance
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The 2003 Act provides for a mechanism by
administration.
which the CVC retains control over CBI. That is the reason
why it is given autonomy and insulation from external
influences under the 2003 Act.
27. For the purposes of deciding this case, we need to
quote the relevant provisions of the 2003 Act.
3. Constitution of Central Vigilance
Commission.-
(2) The Commission shall consist of—
(a) a Central Vigilance Commissioner —
Chairperson;
(b) not more than two Vigilance Commissioners
-Members.
(3) The Central Vigilance Commissioner and
the Vigilance Commissioners shall be appointed
from amongst persons—
(a) who have been or are in an All-India
Service or in any civil service of the Union or in a
civil post under the Union having knowledge and
experience in the matters relating to vigilance,
policy making and administration including police
administration;
4. Appointment of Central Vigilance
Commissioner and Vigilance Commissioners.-
(1) The Central Vigilance Commissioner and the
Vigilance Commissioners shall be appointed by
the President by warrant under his hand and seal:
Provided that every appointment under this sub-
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section shall be made after obtaining the
recommendation of a Committee consisting of—
(a) the Prime Minister —
Chairperson;
(b) the Minister of Home Affairs — Member;
(c) the Leader of the Opposition in the
House of the People —Member.
Explanation.—For the purposes of this sub-
section, “the Leader of the Opposition in the
House of the People” shall, when no such Leader
has been so recognized, include the Leader of the
single largest group in opposition of the
Government in the House of the People.
(2) No appointment of a Central Vigilance
Commissioner or a Vigilance Commissioner shall
be invalid merely by reason of any vacancy in the
Committee.
5. Terms and other conditions of service
of Central Vigilance Commissioner. –
(1) Subject to the provisions of sub-sections
(3) and (4), the Central Vigilance Commissioner
shall hold office for a term of four years from the
date on which he enters upon his office or till he
attains the age of sixty-five years, whichever is
earlier. The Central Vigilance Commissioner, on
ceasing to hold the office, shall be ineligible for
reappointment in the Commission.
(3) The Central Vigilance Commissioner or a
Vigilance Commissioner shall, before he enters
upon his office, make and subscribe before the
President, or some other person appointed in that
behalf by him, an oath or affirmation according to
the form set out for the purpose in Schedule to
this Act.
(6) On ceasing to hold office, the Central
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Vigilance Commissioner and every other Vigilance
Commissioner shall be ineligible for—
(a) any diplomatic assignment, appointment
as administrator of a Union territory and such
other assignment or appointment which is
required by law to be made by the President by
warrant under his hand and seal.
(b) further employment to any office of profit
under the Government of India or the Government
of a State.
6. Removal of Central Vigilance Commissioner
and Vigilance Commissioner.- (1) Subject to the
provisions of sub-section (3), the Central Vigilance
Commissioner or any Vigilance Commissioner
shall be removed from his office only by order of
the President on the ground of proved
misbehaviour or incapacity after the Supreme
Court, on a reference made to it by the President,
has, on inquiry, reported that the Central
Vigilance Commissioner or any Vigilance
Commissioner, as the case may be, ought on such
ground be removed.
(3) Notwithstanding anything contained in sub-
section (1), the President may by order remove
from office the Central Vigilance Commissioner or
any Vigilance Commissioner if the Central
Vigilance Commissioner or such Vigilance
Commissioner, as the case may be,—
(a) is adjudged an insolvent; or
(b) has been convicted of an offence which,
in the opinion of the Central Government, involves
moral turpitude; or
(c) engages during his term of office in any
paid employment outside the duties of his office;
or
(d) is, in the opinion of the President, unfit to
continue in office by reason of infirmity of mind or
26
body; or
(e) has acquired such financial or other
interest as is likely to affect prejudicially his
functions as a Central Vigilance Commissioner or
a Vigilance Commissioner.
Functions and powers of Central
8.
Vigilance Commission-
(1) The functions and powers of the Commission
shall be to—
(a) exercise superintendence over the
functioning of the Delhi Special Police
Establishment in so far as it relates to the
investigation of offences alleged to have been
committed under the Prevention of Corruption Act,
1988 or an offence with which a public servant
specified in sub-section (2) may, under the Code of
Criminal Procedure, 1973, be charged at the same
trial;
(b) give directions to the Delhi Special Police
Establishment for the purpose of discharging the
responsibility entrusted to it under sub-section (1)
of section 4 of the Delhi Special Police
Establishment Act, 1946:
(d) inquire or cause an inquiry or
investigation to be made into any complaint
against any official belonging to such category of
officials specified in sub-section (2) wherein it is
alleged that he has committed an offence under
the Prevention of Corruption Act, 1988 and an
offence with which a public servant specified in
subsection (2) may, under the Code of Criminal
Procedure, 1973, be charged at the same trial;
(e) review the progress of investigations
conducted by the Delhi Special Police
Establishment into offences alleged to have been
committed under the Prevention of Corruption Act,
1988 or the public servant may, under the Code of
27
Criminal Procedure, 1973, be charged at the same
trial;
(f) review the progress of applications
pending with the competent authorities for
sanction of prosecution under the Prevention of
Corruption Act, 1988;
(h) exercise superintendence over the
vigilance administration of the various Ministries
of the Central Government or corporations
established by or under any Central Act,
Government companies, societies and local
authorities owned or controlled by that
Government:
(2) The persons referred to in clause (d) of sub-
section (1) are as follows:—
(a) members of All-India Services serving in
connection with the affairs of the Union and
Group ‘A’ officers of the Central Government;
(b) such level of officers of the corporations
established by or under any Central Act,
Government companies, societies and other local
authorities, owned or controlled by the Central
Government, as that Government may, by
notification in the Official Gazette, specify in this
behalf:
Provided that till such time a notification is issued
under this clause, all officers of the said
corporations, companies, societies and local
authorities shall be deemed to be the persons
referred to in clause (d) of sub-section (1).
11. Power relating to inquiries. – The
Commission shall, while conducting any inquiry
referred to in clauses (c) and (d) of sub-section (1)
of section 8, have all the powers of a civil court
trying a suit under the Code of Civil Procedure,
1908 and in particular, in respect of the following
28
matters, namely:—
(a) summoning and enforcing the attendance of
any person from any part of India and
examining him on oath;
(b) requiring the discovery and production of
any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for the examination of
witnesses or other documents; And
(f) any other matter which may be
prescribed.
THE SCHEDULE
[See section 5(3)]
Form of oath or affirmation to be made by
the Central Vigilance Commissioner or
Vigilance Commissioner:–
“I, A. B., having been appointed Central
Vigilance Commissioner (or Vigilance
Commissioner) of the Central Vigilance
Commission do swear in the name of
god/ solemnly affirm that I will bear true faith
and allegiance to the Constitution of India as
by law established, that I will uphold the
sovereignty and integrity of India, that I will
duly and faithfully and to the best of my
ability, knowledge and judgment perform the
29
duties of my office without fear or favour,
affection or ill-will and that I will uphold the
constitution and the laws.”.
28. On analysis of the 2003 Act, the following are the
salient features. CVC is given a statutory status. It stands
established as an Institution. CVC stands established to
inquire into offences alleged to have been committed under the
Prevention of Corruption Act, 1988 by certain categories of
public servants enumerated above. Under Section 3(3)(a) the
Central Vigilance Commissioner and the Vigilance
Commissioners are to be appointed from amongst persons who
have been or are in All India Service or in any civil service of
the Union or who are in a civil post under the Union having
knowledge and experience in the matters relating to vigilance,
policy making and administration including police
administration. The underlined words “who have been or who
are” in Section 3(3)(a) refer to the person holding office of a
civil servant or who has held such office. These underlined
words came up for consideration by this Court in the case of
N. Kannadasan v. Ajoy Khose and Others [(2009) 7 SCC 1]
in which it has been held that the said words indicate the
30
eligibility criteria and further they indicate that such past or
present eligible persons should be without any blemish
whatsoever and that they should not be appointed merely
because they are eligible to be considered for the post. One
more aspect needs to be highlighted. The constitution of CVC
as a statutory body under Section 3 shows that CVC is an
Institution. The key word is Institution. We are emphasizing
the key word for the simple reason that in the present case the
recommending authority (High Powered Committee) has gone
by personal integrity of the officers empanelled and not by
institutional integrity.
29. Section 4 refers to appointment of Central Vigilance
Commissioner and Vigilance Commissioners. Under Section
4(1) they are to be appointed by the President by warrant
under her hand and seal. Section 4(1) indicates the
importance of the post. Section 4(1) has a proviso. Every
appointment under Section 4(1) is to be made after obtaining
the recommendation of a committee consisting of-
(a) The Prime Minister –
Chairperson;
31
(b) The Minister of Home Affairs – Member;
(c) The Leader of the Opposition
in the House of the People –
Member.
30. For the sake of brevity, we may refer to the Selection
Committee as High Powered Committee. The key word in the
proviso is the word “recommendation”. While making the
recommendation, the HPC performs a statutory duty. The
impugned recommendation dated 3rd September, 2010 is in
exercise of the statutory power vested in the HPC under the
proviso to Section 4(1). The post of Central Vigilance
Commissioner is a statutory post. The Commissioner
performs statutory functions as enumerated in Section 8. The
word ‘recommendation’ in the proviso stands for an informed
decision to be taken by the HPC on the basis of a
consideration of relevant material keeping in mind the
purpose, object and policy of the 2003 Act. As stated, the
object and purpose of the 2003 Act is to have an integrity
Institution like CVC which is in charge of vigilance
administration and which constitutes an anti-corruption
mechanism. In its functions, the CVC is similar to Election
32
Commission, Comptroller and Auditor General, Parliamentary
Committees etc. Thus, while making the recommendations,
the service conditions of the candidate being a public servant
or civil servant in the past is not the sole criteria. The HPC
must also take into consideration the question of institutional
competency into account. If the selection adversely affects
institutional competency and functioning then it shall be the
duty of the HPC not to recommend such a candidate. Thus,
the institutional integrity is the primary consideration which
the HPC is required to consider while making recommendation
under Section 4 for appointment of Central Vigilance
Commissioner. In the present case, this vital aspect has not
been taken into account by the HPC while recommending the
name of Shri P.J. Thomas for appointment as Central
Vigilance Commissioner. We do not wish to discount personal
integrity of the candidate. What we are emphasizing is that
institutional integrity of an institution like CVC has got to be
kept in mind while recommending the name of the candidate.
Whether the incumbent would or would not be able to
function? Whether the working of the Institution would
33
suffer? If so, would it not be the duty of the HPC not to
recommend the person. In this connection the HPC has also
to keep in mind the object and the policy behind enactment of
the 2003 Act. Under Section 5(1) the Central Vigilance
Commissioner shall hold the office for a term of 4 years.
Under Section 5(3) the Central Vigilance Commissioner shall,
before he enters upon his office, makes and subscribes before
the President an oath or affirmation according to the form set
out in the Schedule to the Act. Under Section 6(1) the Central
Vigilance Commissioner shall be removed from his office only
by order of the President and that too on the ground of proved
misbehaviour or incapacity after the Supreme Court, on a
reference made to it by the President, has on inquiry reported
that the Central Vigilance Commissioner be removed. These
provisions indicate that the office of the Central Vigilance
Commissioner is not only given independence and insulation
from external influences, it also indicates that such
protections are given in order to enable the Institution of CVC
to work in a free and fair environment. The prescribed form of
oath under Section 5(3) requires Central Vigilance
34
Commissioner to uphold the sovereignty and integrity of the
country and to perform his duties without fear or favour. All
these provisions indicate that CVC is an integrity institution.
The HPC has, therefore, to take into consideration the values
independence and impartiality of the Institution. The said
Committee has to consider the institutional competence. It
has to take an informed decision keeping in mind the
abovementioned vital aspects indicated by the purpose and
policy of the 2003 Act.
31. Chapter III refers to functions and powers of the
Central Vigilance Commission. CVC exercises superintendence
over the functioning of the Delhi Special Police Establishment
insofar as it relates to investigation of offences alleged to have
been committed under the Prevention of Corruption Act, 1988,
or an offence with which a public servant specified in sub-
section (2) may, under the Code of Criminal Procedure, 1973
be charged with at the trial. Thus, CVC is empowered to
exercise superintendence over the functioning of CBI. It is
also empowered to give directions to CBI. It is also empowered
to review the progress of investigations conducted by CBI into
35
offences alleged to have been committed under the Prevention
of Corruption Act, 1988 or under the Code of Criminal
Procedure by a public servant. CVC is also empowered to
exercise superintendence over the vigilance administration of
various ministries of the Central Government, PSUs,
Government companies etc. The powers and functions
discharged by CVC is the sole reason for giving the institution
the administrative autonomy, independence and insulation
from external influences.
Validity of the recommendation dated 3rd September, 2010
32. One of the main contentions advanced on behalf of
Union of India and Shri P.J. Thomas before us was that once
the CVC clearance had been granted on 6th October, 2008 and
once the candidate stood empanelled for appointment at the
Centre and in fact stood appointed as Secretary, Parliamentary
Affairs and, thereafter, Secretary Telecom, it was legitimate for
the HPC to proceed on the basis that there was no impediment
in the way of appointment of respondent No. 2 on the basis of
the pending case which had been found to be without any
substance.
36
33. We find no merit in the above submissions. Judicial
review seeks to ensure that the statutory duty of the HPC to
recommend under the proviso to Section 4(1) is performed
keeping in mind the policy and the purpose of the 2003 Act.
We are not sitting in appeal over the opinion of the HPC. What
we have to see is whether relevant material and vital aspects
having nexus to the object of the 2003 Act were taken into
account when the decision to recommend took place on 3rd
September, 2010. Appointment to the post of the Central
Vigilance Commissioner must satisfy not only the eligibility
criteria of the candidate but also the decision making process
of the recommendation [see para 88 of N. Kannadasan
(supra)]. The decision to recommend has got to be an
informed decision keeping in mind the fact that CVC as an
institution has to perform an important function of vigilance
administration. If a statutory body like HPC, for any reason
whatsoever, fails to look into the relevant material having
nexus to the object and purpose of the 2003 Act or takes into
account irrelevant circumstances then its decision would
stand vitiated on the ground of official arbitrariness [see State
37
of Andhra Pradesh v. Nalla Raja Reddy (1967) 3 SCR 28].
Under the proviso to Section 4(1), the HPC had to take into
consideration what is good for the institution and not what is
good for the candidate [see para 93 of N. Kannadasan (supra)].
When institutional integrity is in question, the touchstone
should be “public interest” which has got to be taken into
consideration by the HPC and in such cases the HPC may not
insist upon proof [see para 103 of N. Kannadasan (supra)].
We should not be understood to mean that the personal
integrity is not relevant. It certainly has a co-
relationship with institutional integrity. The point to be
noted is that in the present case the entire emphasis has been
placed by the CVC, the DoPT and the HPC only on the bio-data
of the empanelled candidates. None of these authorities have
looked at the matter from the larger perspective of institutional
integrity including institutional competence and functioning of
CVC. Moreover, we are surprised to find that between 2000
and 2004 the notings of DoPT dated 26th June, 2000, 18th
January, 2001, 20th June, 2003, 24th February, 2004, 18th
October, 2004 and 2nd November, 2004 have all observed that
38
penalty proceedings may be initiated against Shri P.J.
Thomas. Whether State should initiate such proceedings or
the Centre should initiate such proceedings was not relevant.
What is relevant is that such notings were not considered in
juxtaposition with the clearance of CVC granted on 6th
October, 2008. Even in the Brief submitted to the HPC by
DoPT, there is no reference to the said notings between the
years 2000 and 2004. Even in the C.V. of Shri P.J. Thomas,
there is no reference to the earlier notings of DoPT
recommending initiation of penalty proceedings against Shri
P.J. Thomas. Therefore, even on personal integrity, the HPC
has not considered the relevant material. The learned
Attorney General, in his usual fairness, stated at the Bar that
only the Curriculum Vitae of each of the empanelled
candidates stood annexed to the agenda for the meeting of the
HPC. The fact remains that the HPC, for whatsoever reason,
has failed to consider the relevant material keeping in mind
the purpose and policy of the 2003 Act. The system
governance established by the Constitution is based on
distribution of powers and functions amongst the three organs
39
of the State, one of them being the Executive whose duty is to
enforce the laws made by the Parliament and administer the
country through various statutory bodies like CVC which is
empowered to perform the function of vigilance administration.
Thus, we are concerned with the institution and its integrity
including institutional competence and functioning and not
the desirability of the candidate alone who is going to be the
Central Vigilance Commissioner, though personal integrity is
an important quality. It is the independence and impartiality
of the institution like CVC which has to be maintained and
preserved in larger interest of the rule of law [see Vineet
Narain (supra)]. While making recommendations, the HPC
performs a statutory duty. Its duty is to recommend. While
making recommendations, the criteria of the candidate being a
public servant or a civil servant in the past is not the sole
consideration. The HPC has to look at the record and take
into consideration whether the candidate would or would not
be able to function as a Central Vigilance Commissioner.
Whether the institutional competency would be adversely
affected by pending proceedings and if by that touchstone the
40
candidate stands disqualified then it shall be the duty of the
HPC not to recommend such a candidate. In the present case
apart from the pending criminal proceedings, as stated above,
between the period 2000 and 2004 various notings of DoPT
recommended disciplinary proceedings against Shri P.J.
Thomas in respect of Palmolein case. Those notings have not
been considered by the HPC. As stated above, the 2003 Act
confers autonomy and independence to the institution of CVC.
Autonomy has been conferred so that the Central Vigilance
Commissioner could act without fear or favour. We may
reiterate that institution is more important than an
individual. This is the test laid down in para 93 of N.
Kannadasan’s case (supra). In the present case, the HPC has
failed to take this test into consideration. The
recommendation dated 3rd September, 2010 of HPC is entirely
premised on the blanket clearance given by CVC on 6 th
October, 2008 and on the fact of respondent No. 2 being
appointed as Chief Secretary of Kerala on 18th September,
2007; his appointment as Secretary of Parliamentary Affairs
and his subsequent appointment as Secretary, Telecom. In
41
the process, the HPC, for whatever reasons, has failed to take
into consideration the pendency of Palmolein case before the
Special Judge, Thiruvananthapuram being case CC 6 of 2003;
the sanction accorded by the Government of Kerala on 30th
November, 1999 under Section 197 Cr.P.C. for prosecuting
inter alia Shri P.J. Thomas for having committed alleged
offence under Section 120-B IPC read with Section 13(1)(d) of
the Prevention of Corruption Act; the judgment of the Supreme
Court dated 29th March, 2000 in the case of K. Karunakaran
v. State of Kerala and Another in which this Court observed
that, “the registration of the FIR against Shri Karunakaran
and others cannot be held to be the result of malafides or
actuated by extraneous considerations. The menace of
corruption cannot be permitted to be hidden under the carpet
of legal technicalities and in such cases probes conducted are
required to be determined on facts and in accordance with
law”. Further, even the judgment of the Kerala High Court in
Criminal Revision Petition No. 430 of 2001 has not been
considered. It may be noted that the clearance of CVC dated
6th October, 2008 was not binding on the HPC. However, the
42
aforestated judgment of the Supreme Court dated 29th March,
2000 in the case of K. Karunakaran vs. State of Kerala and
Another in Criminal Appeal No. 86 of 1998 was certainly
binding on the HPC and, in any event, required due weightage
to be given while making recommendation, particularly when
the said judgment had emphasized the importance of probity
in high offices. This is what we have repeatedly emphasized in
our judgment – institution is more important than
individual(s). For the above reasons, it is declared that the
recommendation made by the HPC on 3rd September, 2010 is
non-est in law.
Is Writ of Quo Warranto invocable?
34. Shri K.K. Venugopal, learned senior counsel appearing
on behalf of respondent No. 2, submitted that the present case
is neither a case of infringement of the statutory provisions of
the 2003 Act nor of the appointment being contrary to any
procedure or rules. According to the learned counsel, it is
well settled that a writ of quo warranto applies in a case when
a person usurps an office and the allegation is that he has no
title to it or a legal authority to hold it. According to the
43
learned counsel for a writ of quo warranto to be issued there
must be a clear infringement of the law. That, in the instant
case there has been no infringement of any law in the matter
of appointment of respondent No. 2.
35. The procedure of quo warranto confers jurisdiction
and authority on the judiciary to control executive action in
the matter of making appointments to public offices against
the relevant statutory provisions. Before a citizen can claim a
writ of quo warranto he must satisfy the court inter-alia that
the office in question is a public office and it is held by a
person without legal authority and that leads to the inquiry as
to whether the appointment of the said person has been in
accordance with law or not. A writ of quo warranto is issued
to prevent a continued exercise of unlawful authority.
36. One more aspect needs to be mentioned. In the
present petition, as rightly pointed by Shri Prashant Bhushan,
learned counsel appearing on behalf of the petitioner, a
declaratory relief is also sought besides seeking a writ of quo
warranto.
37. At the outset it may be stated that in the main writ
44
petition the petitioner has prayed for issuance of any other
writ, direction or order which this Court may deem fit and
proper in the facts and circumstances of this Case. Thus,
nothing prevents this Court, if so satisfied, from issuing a writ
of declaration. Further, as held hereinabove, recommendation
of the HPC and, consequently, the appointment of Shri P.J.
Thomas was in contravention of the provisions of the 2003
Act, hence, we find no merit in the submissions advanced on
behalf of respondent No. 2 on non-maintainability of the writ
petition. If public duties are to be enforced and rights and
interests are to be protected, then the court may, in
furtherance of public interest, consider it necessary to inquire
into the state of affairs of the subject matter of litigation in the
interest of justice [see Ashok Lanka v. Rishi Dixit (2005) 5
SCC 598].
38. Keeping in mind the above parameters, we may now
consider some of the judgments on which reliance has been
placed by the learned counsel for respondent No. 2.
In Ashok Kumar Yadav v. State of Haryana [(1985) 4
39.
SCC 417], the Division Bench of the Punjab and Haryana High
45
Court had quashed and set aside selections made by the
Haryana Public Service Commission to the Haryana Civil
Service and other Allied Services.
40. In that case some candidates who had obtained very
high marks at the written examination failed to qualify as they
had obtained poor marks in the viva voce test. Consequently,
they were not selected. They were aggrieved by the selections
made by Haryana Public Service Commission. Accordingly,
Civil Writ Petition 2495 of 1983 was filed in the High Court
challenging the validity of the selections and seeking a writ for
quashing and setting aside the same. There were several
grounds on which the validity of the selection made by the
Commission was assailed. A declaration was also sought that
they were entitled to be selected. A collateral attack was
launched. It was alleged that the Chairperson and members
of Public Service Commission were not men of high integrity,
calibre and qualification and they were appointed solely as a
matter of political patronage and hence the selections made by
them were invalid. This ground of challenge was sought to be
repelled on behalf of the State of Haryana who contended that
46
not only was it not competent to the Court on the existing set
of pleadings to examine whether the Chairman and members
of the Commission were men of high integrity, calibre and
qualification but also there was no material at all on the basis
of which the Court could come to the conclusion that they
were men lacking in integrity, calibre or qualification.
41. The writ petition came to be heard by a Division Bench
of the High Court of Punjab and Haryana. The Division Bench
held that the Chairperson and members of the Commission
had been appointed purely on the basis of political
considerations and that they did not satisfy the test of high
integrity, calibre and qualification. The Division Bench went
to the length of alleging corruption against the Chairperson
and members of the Commission and observed that they were
not competent to validly wield the golden scale of viva voce test
for entrance into the public service. This Court vide para 9
observed that it was difficult to see how the Division Bench of
the High Court could have possibly undertaken an inquiry into
the question whether Chairman and members of the
Commission were men of integrity, calibre and qualification;
47
that such an inquiry was totally irrelevant inquiry because
even if they were men lacking in integrity, calibre and
qualification, it would not make their appointments invalid so
long as the constitutional and legal requirement in regard to
appointment are fulfilled. It was held that none of the
constitutional provisions, namely, Article 316 and 319 stood
violated in making appointments of the Chairperson and
members of the Commission nor was any legal provision
breached. Therefore, the appointments of the Chairperson
and members of the Commission were made in conformity
with the constitutional and legal requirements, and if that be
so, it was beyond the jurisdiction of the High Court to hold
that such appointments were invalid on the ground that the
Chairman and the members of the Commission lacked
integrity, calibre and qualification. The Supreme Court
observed that it passes their comprehension as to how the
appointments of the Chairman and members of the
Commission could be regarded as suffering from infirmity
merely on the ground that in the opinion of the Division Bench
of the High Court the Chairperson and the members of the
48
Commission were not men of integrity or calibre. In the
present case, as stated hereinabove, there is a breach/
violation of the proviso to Section 4(1) of the 2003 Act, hence,
writ was maintainable.
In R.K. Jain v. Union of India [(1993) 4 SCC 119]
42.
Shri Harish Chandra was a Senior Vice-President when the
question of filling up the vacancy of the President came up for
consideration. He was qualified for the post under the Rules.
No challenge was made on that account. Under Rule 10(1) the
Central Government was conferred the power to appoint one
of the members to be the President. The validity of the Rule
was not questioned. Thus, the Central Government was
entitled to appoint Shri Harish Chandra as the President. It
was stated that the track record of Shri Harish Chandra was
poor. He was hardly fit to hold the post of the President. It
was averred that Shri Harish Chandra has been in the past
proposed for appointment as a Judge of the Delhi High Court.
His appointment, however, did not materialize due to certain
adverse reports. It was held by this Court that judicial review
is concerned with whether the incumbent possessed requisite
49
qualification for appointment and the manner in which the
appointment came to be made or the procedure adopted was
fair, just and reasonable. When a candidate was found
qualified and eligible and is accordingly appointed by the
executive to hold an office as a Member or Vice President or
President of a Tribunal, in judicial review the Court cannot sit
over the choice of the selection. It is for the executive to select
the personnel as per law or procedure. Shri Harish Chandra
was the Senior Vice President at the relevant time. The
question of comparative merit which was the key contention of
the petitioner could not be gone into in a PIL; that the writ
petition was not a writ of quo warranto and in the
circumstances the writ petition came to be dismissed. It was
held that even assuming for the sake of arguments that the
allegations made by the petitioner were factually accurate,
still, this Court cannot sit in judgment over the choice of the
person made by the Central Government for appointment as a
President of CEGAT so long as the person chosen possesses
the prescribed qualification and is otherwise eligible for
appointment. It was held that this Court cannot interfere with
50
the appointment of Shri Harish Chandra as the President of
CEGAT on the ground that his track record was poor or
because of adverse reports on which account his appointment
as a High Court Judge had not materialized.
In the case of Hari Bansh Lal v. Sahodar Prasad
43.
Mahto [(2010) 9 SCC 655], the appointment of Shri Hari
Bansh Lal as Chairman, Jharkhand State Electricity Board
stood challenged on the ground that the board had been
constituted in an arbitrary manner; that Shri Hari Bansh Lal
was a person of doubtful integrity; that he was appointed as a
Chairman without following the rules and procedure and in
the circumstances the appointment stood challenged. On the
question of maintainability, the Division Bench of this Court
held that a writ of quo warranto lies only when the
appointment is contrary to a statutory provision. It was
further held that “suitability” of a candidate for appointment to
a post is to be judged by the appointing authority and not by
the court unless the appointment is contrary to the statutory
rules/provisions. It is important to note that this Court went
into the merits of the case and came to the conclusion that
51
there was no adequate material to doubt the integrity of Shri
Hari Bansh Lal who was appointed as the Chairperson of
Jharkhand State Electricity Board. This Court further
observed that in the writ petition there was no averment
saying that the appointment was contrary to statutory
provisions.
44. As stated above, we need to keep in mind the
difference between judicial review and merit review. As stated
above, in this case the judicial determination is confined to the
integrity of the decision making process undertaken by the
HPC in terms of the proviso to Section 4(1) of the 2003 Act. If
one carefully examines the judgment of this Court in Ashok
Kumar Yadav’s case (supra) the facts indicate that the High
Court had sat in appeal over the personal integrity of the
Chairman and Members of the Haryana Public Service
Commission in support of the collateral attack on the
selections made by the State Public Service Commission. In
that case, the High Court had failed to keep in mind the
difference between judicial and merit review. Further, this
Court found that the appointments of the Chairperson and
52
Members of Haryana Public Service Commission was in
accordance with the provisions of the Constitution. In that
case, there was no issue as to the legality of the decision-
making process. On the contrary the last sentence of para 9
supports our above reasoning when it says that it is always
open to the Court to set aside the decision (selection) of the
Haryana Public Service Commission if such decision is vitiated
by the influence of extraneous considerations or if such
selection is made in breach of the statute or the rules.
Even in R.K. Jain’s case (supra), this Court observed
45.
vide para 73 that judicial review is concerned with whether the
incumbent possessed qualifications for the appointment and
the manner in which the appointment came to be made or
whether procedure adopted was fair, just and reasonable. We
reiterate that Government is not accountable to the courts for
the choice made but Government is accountable to the courts
in respect of the lawfulness/legality of its decisions when
impugned under the judicial review jurisdiction. We do not
wish to multiply the authorities on this point.
Appointment of Central Vigilance Commissioner at the
53
President’s discretion
46. On behalf of respondent No. 2 it was submitted that
though under Section 4(1) of the 2003 Act, the appointment of
Central Vigilance Commissioner is made on the basis of the
recommendation of a High Powered Committee, the President
of India is not to act on the advice of the Council of Ministers
as is provided in Article 74 of the Constitution. In this
connection, it was submitted that the exercise of powers by
the President in appointing respondent No. 2 has not been put
in issue in the PIL, nor is there any pleading in regard to the
exercise of powers by the President and in the circumstances
it is not open to the petitioner to urge that the appointment is
invalid.
47. Shri G.E. Vahanvati, learned Attorney General
appearing on behalf of Union of India, however, submitted that
the proposal sent after obtaining and accepting the
recommendations of the High Powered Committee under
Section 4(1) was binding on the President. Learned counsel
submitted that under Article 74 of the Constitution the
54
President acts in exercise of her function on the aid and advice
of the Council of Ministers headed by the Prime Minister
which advice is binding on the President subject to the proviso
to Article 74. According to the learned counsel Article 77 of
the Constitution inter alia provides for conduct of Government
Business. Under Article 77(3), the President makes rules for
transaction of Government Business and for allocation of
business among the Ministers. On facts, learned Attorney
General submitted that under Government of India
(Transaction of Business) Rules, 1961 the Prime Minister had
taken a decision on 3rd September, 2010 to propose the name
of respondent No. 2 for appointment as Central Vigilance
Commissioner after the recommendation of the High Powered
Committee. It was accordingly submitted on behalf of Union
of India that this advice of the Prime Minister under Article
77(3), read with Article 74 of the Constitution is binding on the
President. That, although the recommendation of the High
Powered Committee under Section 4(1) of the 2003 Act may
not be binding on the President proprio vigore, however, if such
recommendation has been accepted by the Prime Minister,
55
who is the concerned authority under Article 77(3), and if such
recommendation is then forwarded to the President under
Article 74, then the President is bound to act in accordance
with the advice tendered. That, the intention behind Article
77(3) is that it is physically impossible that every decision is
taken by the Council of Ministers. The Constitution does not
use the term “Cabinet”. Rules have been framed for
convenient transaction and allocation of such business.
Under the Rules of Business, the concerned authority is the
Prime Minister. The advice tendered to the President by the
Prime Minister regarding the appointment of the Central
Vigilance Commissioner would be thus binding on the
President. Lastly, it was submitted that unless the
Constitution expressly permits the exercise of discretion by the
President, every decision of the President has to be on the aid
and advice of Council of Ministers.
48. Shri Venugopal, learned counsel appearing on behalf
of respondent No. 2 submitted that though the President has
an area of discretion in regard to exercise of certain powers
under the Constitution the Constitution is silent about the
56
exercise of powers by the President/Governor where a Statute
confers such powers. In this connection learned counsel
placed reliance on the judgment of this Court in Bhuri Nath v.
State of J & K [(1997) 2 SCC 745]. In that case, the
appellants-Baridars challenged the constitutionality of Jammu
and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 which
was enacted to provide for better management, administration
and governance of Shri Mata Vaishno Devi Shrine and its
endowments including the land and buildings attached to the
Shrine. By operation of that Act the administration,
management and governance of the Shrine and its Funds
stood vested in the Board. Consequently, all rights of Baridars
stood extinguished from the date of the commencement of the
Act by operation of Section 19(1) of the Act. One of the
questions which came up for consideration in that case was
that when the Governor discharges the functions under the
Act, is it with the aid and advice of the Council of Ministers or
whether he discharges those functions in his official capacity
as the Governor. This question arose because by an order
dated 16th January, 1995, this Court had directed the Board to
57
frame a scheme for rehabilitation of persons engaged in the
performance of Pooja at Shri Mata Vaishno Devi Shrine. When
that matter came up for hearing on 20th March, 1995, the
Baridars stated that they did not want rehabilitation. Instead,
they preferred to receive compensation to be determined under
Section 20 of the impugned Act 1988. This Court noticed that
in the absence of guidelines for determination of the
compensation by the Tribunal to be appointed under Section
20 it was not possible to award compensation to the Baridars.
Consequently, the Supreme Court ordered that the issue of
compensation be left to the Governor to make appropriate
guidelines to determine the compensation. Pursuant thereto,
guidelines were framed by the Governor which were published
in the State Gazette and placed on record on 8th May, 1995. It
is in this context that the question arose that when the
legislature entrusted the powers under the Act to the Governor
whether the Governor discharges the functions under the Act
with the aid and advice of the Council of Ministers or whether
he acts in his official capacity as a Governor under the Act.
After examining the Scheme of the 1988 Act the Division
58
Bench of this Court held that the legislature of Jammu &
Kashmir, while making the Act was aware that similar
provisions in the Endowments Act, 1966 gives power of the
State Government to dissolve the Board of Trustees of Tirupati
Devasthanams and the Board of Trustees of other institutions.
Thus, it is clear that the legislature entrusted the powers
under the Act to the Governor in his official capacity. On
examination of the 1988 Act this Court found that the
Governor is to preside over the meetings of the Board and in
his absence his nominee, a qualified Hindu, shall preside over
the functions. That, under the 1988 Act no distinction was
made between the Governor and the Executive Government.
That, under the scheme of the 1988 Act there was nothing to
indicate that the power was given to the Council of Ministers
and the Governor was to act on its advice as executive head of
the State. It is in these circumstances that this Court held
that while discharging the functions under the 1988 Act the
Governor acts in his official capacity. In the same judgment
this Court has also referred to the judgment of the Full Bench
of the Punjab and Haryana High Court in Hardwari Lal v.
59
G.D. Tapase [AIR 1982 P&H 439] in which a similar question
arose as to whether the Governor in his capacity as the
Chancellor of Maharshi Dayanand University acts under the
1975 Act in his official capacity as Chancellor or with the aid
and advice of the Council of Ministers. The Full Bench of the
High Court, after elaborate consideration of the provisions of
the Act, observed that under the Maharshi Dayanand
University Act 1975, the State Government would not interfere
in the affairs of the University. Under that Act, the State
Government is an Authority different and distinct from the
authority of the Chancellor. Under that Act the State
Government was not authorized to advise the Chancellor to act
in a particular manner. Under that Act the University was a
statutory body, autonomous in character and it had been
given powers exercisable by the Chancellor in his absolute
discretion. In the circumstances, under the scheme of that
Act it was held that while discharging the functions as a
Chancellor, the Governor does everything in his discretion as a
Chancellor and he does not act on the aid and advice of his
Council of Ministers. This judgment has no application to the
60
scheme of the 2003 Act. As stated hereinabove, the CVC is
constituted under Section 3(1) of the 2003 Act. The Central
Vigilance Commissioner is appointed under Section 4(1) of the
2003 Act by the President by warrant under her hand and seal
after obtaining the recommendation of a Committee consisting
of the Prime Minister as the Chairperson and two other
Members. As submitted by the learned Attorney General
although under the 2003 Act the Central Vigilance
Commissioner is appointed after obtaining the
recommendation of the High Powered Committee, such
recommendation has got to be accepted by the Prime Minister,
who is the concerned authority under Article 77(3), and if such
recommendation is forwarded to the President under Article
74, then the President is bound to act in accordance with the
advice tendered. Further under the Rules of Business the
concerned authority is the Prime Minister. Therefore, the
advice tendered to the President by the Prime Minister
regarding appointment of the Central Vigilance Commissioner
will be binding on the President. It may be noted that the
above submissions of the Attorney General find support even
61
in the judgment of the Division Bench of this Court in Bhuri
Nath’s case (supra) which in turn has placed reliance on the
judgment of this Court in Samsher Singh v. State of Punjab
[(1974) 2 SCC 831] in which a Bench of 7 Judges of this Court
held that under the Cabinet system of Government, as
embodied in our Constitution, the Governor is the formal Head
of the State. He exercises all his powers and functions
conferred on him by or under the Constitution with the aid
and advice of his Council of Ministers. That, the real executive
power is vested in the Council of Ministers of the Cabinet. The
same view is reiterated in R.K. Jain’s case (supra). However,
in Bhuri Nath’s case (supra) it has been clarified that the
Governor being the constitutional head of the State, unless he
is required to perform the function under the Constitution in
his individual discretion, the performance of the executive
power, which is coextensive with the legislative power, is with
the aid and advice of the Council of Ministers headed by the
Chief Minister. Thus, we conclude that the judgment in Bhuri
Nath’s case has no application as the scheme of the Jammu
and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 as well
62
as the scheme of Maharshi Dayanand University Act, 1975 as
well as the scheme of the various Endowment Acts is quite
different from the scheme of the 2003 Act. Hence, there is no
merit in the contention advanced on behalf of respondent No.
2 that in the matter of appointment of Central Vigilance
Commissioner under Section 4(1) of the 2003 Act the
President is not to act on the advice of the Council of Ministers
as is provided in Article 74 of the Constitution.
Unanimity or consensus under Section 4(2) of the 2003
Act
49. One of the arguments advanced on behalf of the
petitioner before us was that the recommendation of the High
Powered Committee under the proviso to Section 4(1) has to be
unanimous. It was submitted that CVC was set up under the
Resolution dated 11th February, 1964. Under that Resolution
the appointment of Central Vigilance Commissioner was to be
initiated by the Cabinet Secretary and approved by the Prime
Minister. However, the provision made in Section 4 of the
2003 Act was with a purpose, namely, to introduce an element
of bipartisanship and political neutrality in the process of
63
appointment of the head of the CVC. The provision made in
Section 4 for including the Leader of Opposition in the High
Powered Committee made a significant change from the
procedure obtaining before the enactment of the said Act. It
was further submitted that if unanimity is ruled out then the
very purpose of inducting the Leader of Opposition in the
process of selection will stand defeated because if the
recommendation of the Committee were to be arrived at by
majority it would always exclude the Leader of Opposition
since the Prime Minister and the Home Minister will always be
ad idem. It was submitted that one must give a purposive
interpretation to the scheme of the Act. It was submitted that
under Section 9 it has been inter alia stated that all business
of the Commission shall, as far as possible, be transacted
unanimously. It was submitted that since in Vineet Narain’s
case (supra) this Court had observed that CVC would be
selected by a three member Committee, including the Leader
of the Opposition it was patently obvious that the said
Committee would decide by unanimity or consensus. That, it
was no where stated that the Committee would decide by
64
majority.
50. We find no merit in these submissions. To accept the
contentions advanced on behalf of the petitioners would mean
conferment of a “veto right” on one of the members of the
HPC. To confer such a power on one of the members would
amount to judicial legislation. Under the proviso to Section
4(1) Parliament has put its faith in the High Powered
Committee consisting of the Prime Minister, the minister for
Home Affairs and the Leader of the Opposition in the House of
the People. It is presumed that such High Powered Committee
entrusted with wide discretion to make a choice will exercise
its powers in accordance with the 2003 Act, objectively and in
a fair and reasonable manner. It is well settled that mere
conferment of wide discretionary powers per se will not violate
the doctrine of reasonableness or equality. The 2003 Act is
enacted with the intention that such High Powered Committee
will act in a bipartisan manner and shall perform its statutory
duties keeping in view the larger national interest. Each of the
Members is presumed by the legislature to act in public
interest. On the other hand, if veto power is given to one of
65
the three Members, the working of the Act would become
unworkable. One more aspect needs to be mentioned. Under
Section 4(2) of the 2003 Act it has been stipulated that the
vacancy in the Committee shall not invalidate the
appointment. This provision militates against the argument of
the petitioner that the recommendation under Section 4 has to
be unanimous. Before concluding, we would like to quote the
observations from the judgment in Grindley and Another v.
Barker, 1 Bos. & Pul. 229, which reads as under :
“I think it is now pretty well established, that
where a number of persons are entrusted with
the powers not of mere private confidence, but
in some respects of a general nature and all of
them are regularly assembled, the majority
will conclude the minority, and their act
will be the act of the whole.”
51. The Court, while explaining the raison d’etre behind
the principle, observed :
“It is impossible that bodies of men should
always be brought to think alike. There is
often a degree of coercion, and the majority is
governed by the minority, and vice versa,
according to the strength of opinions, tempers,
prejudices, and even interests. We shall not
therefore think ourselves bound in this case by
66
the rule which holds in that. I lay no great
stress on the clause of the act which appoints
a majority to act in certain cases, because that
appears to have been done for particular
reasons which do not apply to the ultimate
trial: it relates only to the assembling the
searchers; now there is no doubt that all the
six triers must assemble; and the only
question, what they must do when assembled?
We have no light to direct us in this part,
except the argument from the nature of the
subject. The leather being subject to seizure
in every stage of the manufacture, the tribunal
ought to be composed of persons skilful in
every branch of the manufacture. And I
cannot say there is no weight in the argument,
drawn from the necessity of persons
concurring in the judgments, who are
possessed of different branches of knowledge,
but standing alone it is not so conclusive as to
oblige us to break through the general rule;
besides, it is very much obviated by this
consideration when all have assembled and
communicated to each other the necessary
information, it is fitter that the majority
should decide than that all should be
pressed to a concurrence. If this be so, then
the reasons drawn from the act and which
have been supposed to demand, that the whole
body should unite in the judgment, have no
sufficient avail, and consequently the general
rule of law will take place; viz. that the
judgment of four out of six being the whole
body to which the authority is delegated
regularly assemble and acting, is the
judgment of the all.”
52. Similarly, we would like to quote Halsbury’s Laws of
67
England (4th Ed. Re-issue), on this aspect, which states as
under:
“Where a power of a public nature is
committed to several persons, in the absence
of statutory provision or implication to the
contrary the act of the majority is binding
upon the minority.”
53. In the circumstances, we find no merit in the
submission made on behalf of the petitioner on this point that
the recommendation/decision dated 3rd September, 2010
stood vitiated on the ground that it was not unanimous.
Guidelines/Directions of this Court
The 2003 Act came into force on and from 11th
54.
September, 2003. In the present case we find non-compliance
of some of the provisions of the 2003 Act. Under Section 3(3),
the Central Vigilance Commissioner and the Vigilance
Commissioners are to be appointed from amongst persons –
(a) who have been or who are in All-India Service or in
any civil service of the Union or in a civil post under
the Union having requisite knowledge and
68
experience as indicated in Section 3(3)(a); or
(b) who have held office or are holding office in a
corporation established by or under any Central Act
or a Central Government company and persons who
have experience in finance including insurance and
banking, law, vigilance and investigations.
55. No reason has been given as to why in the present
case the zone of consideration stood restricted only to the civil
service. We therefore direct that :
(i) In our judgment we have held that there is no
prescription of unanimity or consensus under Section
4(2) of the 2003 Act. However, the question still remains
as to what should be done in cases of difference of
opinion amongst the Members of the High Powered
Committee. As in the present case, if one Member of the
Committee dissents that Member should give reasons for
the dissent and if the majority disagrees with the dissent,
69
the majority shall give reasons for overruling the dissent.
This will bring about fairness-in-action. Since we have
held that legality of the choice or selection is open to
judicial review we are of the view that if the above
methodology is followed transparency would emerge
which would also maintain the integrity of the decision-
making process.
(ii) In future the zone of consideration should be in terms of
Section 3(3) of the 2003 Act. It shall not be restricted to
civil servants.
(iii) All the civil servants and other persons empanelled shall
be outstanding civil servants or persons of impeccable
integrity.
(iv) The empanelment shall be carried out on the basis of
rational criteria, which is to be reflected by recording of
reasons and/or noting akin to reasons by the
empanelling authority.
70
(v) The empanelment shall be carried out by a person not
below the rank of Secretary to the Government of India in
the concerned Ministry.
(vi) The empanelling authority, while forwarding the names of
the empanelled officers/persons, shall enclose complete
information, material and data of the concerned
officer/person, whether favourable or adverse. Nothing
relevant or material should be withheld from the
Selection Committee. It will not only be useful but would
also serve larger public interest and enhance public
confidence if the contemporaneous service record and
acts of outstanding performance of the officer under
consideration, even with adverse remarks is specifically
brought to the notice of the Selection Committee.
(vii) The Selection Committee may adopt a fair and
transparent process of consideration of the empanelled
officers.
71
Conclusion
56. For the above reasons, it is declared that the
recommendation dated 3rd September, 2010 of the High
Powered Committee recommending the name of Shri P.J.
Thomas as Central Vigilance Commissioner under the proviso
to Section 4(1) of the 2003 Act is non-est in law and,
consequently, the impugned appointment of Shri P.J. Thomas
as Central Vigilance Commissioner is quashed.
57. The writ petitions are accordingly allowed with no
order as to costs.
…………………………………CJI
(S. H. Kapadia)
…………………………………….J.
(K.S. Panicker Radhakrishnan)
…………………………………….J.
(Swatanter Kumar)
New Delhi;
March 3, 2011
72
ITEM NO.1A COURT NO.1 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO.348 OF 2010
CENTRE FOR PIL & ANR. Petitioner(s)
VERSUS
UNION OF INDIA & ANR. Respondent(s)
With Writ Petition (C) No.355 of 2010
Date: 03/03/2011 These Matters were called on for
judgement today.
For Petitioner(s) Mr. Prashant Bhushan,Adv.
In WP 348/2010: Mr. Pranav Sachdeva,Adv.
In WP 355/2010: Mr. Siddharth Bhatnagar,Adv.
Mr. Prashant Kumar,Adv.
Mr. B.S. Iyenger,Adv.
for M/s. AP & J Chambers,Advs.
For Respondent(s) Ms. Indira Jaising,ASG
Mr. Devadatt Kamat,Adv.
Mr. T.A. Khan,Adv.
Mr. Anoopam N. Prasad,Adv.
Mr. Nishanth Patil,Adv.
Mr. Rohit Sharma,Adv.
Ms. Naila Jung,Adv.
Ms. Anil Katiyar,Adv.
Mr. S.N. Terdal,Adv.
In WP 348/2010: Mr. K.K. Venugopal,Sr.Adv.
Mr. Gopal Sankaranarayanan,Adv.
Mr. Wills Mathews,Adv.
Mr. D.K. Tiwari,Adv.
Mr. Rajdipa Behura,Adv.
Mr. Shyam Mohan,Adv.
Mr. A. Venayagam Balan,Adv.
In WP 355/2010: Mr. K.K. Venugopal,Sr.Adv.
Mr. Wills Mathews,Adv.
….2/-
73
– 2 –
For Intervenor: Mr. Braj Kishore Mishra,Adv.
Ms. Aparna Jha,Adv.
Mr. Vikas Malhotra,Adv.
Mr. M.P. Sahay,Adv.
Mr. Abhishek Yadav,Adv.
Mr. Vikram,Adv.
Hon’ble the Chief Justice pronounced the
judgement of the Bench comprising His Lordship,
Hon’ble Mr. Justice K.S. Panicker Radhakrishnan
and Hon’ble Mr. Justice Swatanter Kumar.
The writ petitions are allowed with no
order as to costs.
Application for intervention is dismissed.
[ T.I. Rajput ] [ Madhu Saxena ]
A.R.-cum-P.S. Assistant Registrar
[Signed reportable judgment is placed on the file.]

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