Union of India and Anr Vs. C. Dinakar, I.P.S. & Ors  Insc 293 (20 April 2004)
S.B. Sinha & Dr. Ar. Lakshmanan V.N. Khare, Cji :
of India herein is in appeal before us being aggrieved by and dissatisfied with
the judgment and order dated 11.10.2001 passed by the Karnataka High Court in
Writ Petition No.5765 of 2001 whereby the High Court has affirmed the order
dated 8.2.2001 passed by the Central Administrative Tribunal, Bangalore Bench
in O.A. No.1020 of 1999.
first respondent herein was a member of the Indian Police Service (IPS) of 1963
batch. He although was said to be one of the senior-most officers for the
purpose of consideration of his claim for promotion to the post of Director,
Central Bureau of Investigation (CBI), ignoring his case, Shri R.K. Raghavan,
Respondent No.6 herein was appointed therein.
the said appointment as also the procedure adopted by the Committee being violative
of the directions of this Court for appointment of Director, CBI in Vineet Narain
and Others vs. Union of India Another [(1998) 1 SCC 226], the first respondent
filed an original application before the Tribunal.
Committee constituted for the aforementioned purpose was required to draw a
panel of IPS officers on the basis of their seniority, integrity and experience
in investigation and anti-corruption work. Final selection, however, was to be
made by the Appointment Committee of the Cabinet (ACC) from the panel
recommended by the Committee. The name of the first respondent herein was
admittedly not included in the panel prepared by the appellant herein for the
purpose of consideration of his case for promotion to the post of Director,
CBI. The panel of IPS officers which was placed before the Committee for its
consideration consisted names of 33 IPS officers, out of which 17 officers did
not have the requisite background or experience in anti-corruption activities.
Out of the remaining 16 officers, a panel of three names was prepared by the
Committee. The first respondent questioned the selection process adopted by the
Central Government as regard empanelment of the so-called eligible officers,
inter alia, on the ground that the same was contrary to and inconsistent with
the directions of this Court in Vineet Narain's case (supra). The stand of the
Central Government, however, was that such a procedure was supplemental to the
directions of this Court which had already been in existence for appointment to
the post of Director of CBI as on the date of the judgment thereof, namely,
18.12.1997. The said stand was taken purported to be relying on or on the basis
of doctrine of sub silentio, to which this Court in Vineet Narain (supra)
apparently did not advert.
question which, inter alia, arose for consideration before the Central Administrative
Tribunal (Tribunal) was as to whether directions issued by this Court in Vineet
Narain (supra) were required to be complied with rigidly till such time, the
legislature steps in and substitutes the same by an appropriate legislation.
Tribunal allowed the original application filed by the first respondent herein
quashing the appointment of the seventh respondent and directing initiation of
a fresh process of selection in the light of the decision of this Court in Vineet
Narain (supra), holding that statutory rules or executive instructions
pertaining to the post of Director, CBI could not be resorted therefor. The
judgment and order of the Tribunal came to be questioned by the appellant
herein by filing a writ petition before the Karnataka High Court which was
marked as Writ Petition No. 5765 of 2001.
first respondent herein also filed a writ petition questioning some findings
arrived at by the Tribunal which was marked as Writ Petition No.6361 of 2001.
matter came up for hearing before a Division Bench of the High Court comprising
Ashok Bhan, J. (as His Lordship then was) and Chidananda Ullal, J. The learned
Judges differed in their opinion while delivering an order dated 8.2.2001.
Whereas Bhan, J. held that the appointment of the 6th Respondent herein as
Director of CBI was in accordance with the rules and the directions issued by
this Court as also Official Memorandum dated 20.5.1998; Ullal, J. held contra.
Having regard to the difference of opinion between two learned Judges of the
Karnataka High Court, the matter ultimately was placed before a third Judge, by
Hon'ble the Chief Justice of Karnataka High Court. The learned Judge in terms
of his judgment dated 11.10.2001 agreed with the view of Justice Ullal although
for different reasons.
J. Sorabjee, learned Attorney General, appearing on behalf of the appellants,
assailed the impugned majority decision of the High Court, inter alia,
contending that the first respondent herein did not question the applicability
of the C.B.I. (Senior Police Posts) Recruitment Rules, 1996 (hereinafter
referred to as 'the 1996 Rules') and filed the original application primarily
on the ground that he had not been appointed on extraneous reasons, despite his
empanelment as Director General of Police (DGP) at the Centre, which plea was
found to be not correct. The learned Attorney General contended that the 1996
Rules which were framed under Proviso to Article 309 of the Constitution of
India specifically provided for the grade from which promotion/deputation/transfer
to the post of Director, CBI was to be made from amongst the officers who had
been approved for appointment as DGP under the Government of India and, thus,
the observations of the Tribunal as also the majority decision of the High
Court to the effect that the directions of this Court regulating the
appointment of the CBI Director must be construed as being limited to the
subsequent stages of selection from amongst the IPS Officers who had already
been empanelled for the post of DGP at the Centre by the concerned Selection
Committee is erroneous. According to the learned Attorney General, the
directions of this Court should have been construed as an additional step in
the process of selection of the Director of CBI with a view to insulate the
sensitive post from political interference.
submitted that the rules framed under the constitutional provisions having not
been declared invalid, the provisions thereof were required to be complied with
and in any event as the provisions thereof can co-exist with the directions of
this Court in Vineet Narain (supra); both should be given effect to.
learned Attorney General also urged that the third Hon'ble Judge committed an
error in concurring with the opinion of Ullal, J. for additional reasons that
such requirement has been approved by the legislature in the form of Central
Vigilance Commission Ordinance, 1998 which was promulgated by the President of
India amending Delhi Special Police Establishment Act, 1946 by substituting
Section 4 and inserting Section 4A therein as thereby directions of this Court
were mainly sought to be implemented; and as even in terms thereof the 1996
Rules were not superseded expressly.
First Respondent herein who appeared in person had drawn our attention to the
interim orders passed by the High Court as also this Court and submitted that
despite the fact that he had retired from service, this Court should direct
that he be promoted to the post of Director, CBI with retrospective effect so
that he may get the consequential retiral benefits.
urged that this Court in Vineet Narain (supra) had highlighted that CBI had not
been functioning properly necessitating constitution of an Independent Review
Committee (IRC). Had it been the intention of this Court in Vineet Narain
(supra) that the procedure laid down in the 1996 Rules should be followed, it
would not have directed that the matter be considered by an independent
committee which was not contemplated under the 1996 Rules. He furthermore urged
that in that view of the matter, it would not be incorrect to invoke the
doctrine of 'sub silentio' in Vineet Narain (supra).
Narain (supra) arose out of a writ petition filed before this Court under
Article 32 of the Constitution of India as a public interest litigation. This
Court since the initiation of the writ proceedings which took place in 1993 had
passed several orders relating to the functioning of the CBI and other
Government agencies, which according to this Court had not carried out their
public duties to investigate the offences disclosed by taking recourse to
doctrine of continuous mandamus. It was observed :
constitution and working of the investigating agencies revealed the lacuna of
its inability to perform whenever powerful persons were involved. For this
reason, a close examination of the constitution of these agencies and their
control assumes significance. No doubt, the overall control of the agencies and
responsibility of their functioning has to be in the executive, but then a
scheme giving the needed insulation from extraneous influences even of the
controlling executive is imperative..." This Court noticed the relevant
rules as also the functioning of IRC but despite the same considered the need
for court's intervention in para 26 and history of CBI in para 30, the validity
of Directive No.4.7(3) of the Single Directive as also the power of this Court
under Articles 32 and 142 of the Constitution of India stating :
are ample powers conferred by Article 32 read with Article 142 to make orders
which have the effect of law by virtue of Article 141 and there is mandate to
all authorities to act in aid of the orders of this Court as provided in
Article 144 of the constitution. In a catena of decisions of this Court, this
power has been recognised and exercised, if need be, by issuing necessary
directions to fill the vacuum till such time the legislature steps in to cover
the gap or the executive discharges its role..." Noticing that this Court
in exercise of its power under Article 32 read with Article 142 of the
Constitution of India had issued guidelines and directions in a large number of
cases, it was held that the directions which were enumerated therein required
rigid compliance till such time the legislature steps in to substitute them by
appropriate legislation. The requisite directions were thereafter issued which
are contained in para 58 of the reported judgment.
High Court in its impugned judgment noticed that the appointment to the post of
CBI can be made by way of transfer or deputation from amongst the officers of
IPS who have been approved for appointment as DGP under the Government of India
as regulated in terms of IPS Rules.
High Court further noticed that the Central Government issued an official
memorandum after Vineet Narain (supra) which is to the following effect :
Selection Board shall make recommendations/decide matters strictly in
accordance with the relevant rules, policy and guidelines having a bearing on
the matter concerned. Recommendations regarding deviations from established
policy, practices and guidelines require to be specifically brought to the
notice of the ACC, giving reasons therefor. The decisions of the CBI Selection
Board which involve relaxation of relevant rules, policy and guidelines shall
be only recommendatory." Taking note of the promulgation of the Ordinance
by the President of India known as 'the Central Vigilance Commission Ordinance,
1998 which came into force on or about 25.8.1998, the High Court observed that
the directions of this Court were issued with the express object of providing a
scheme to insulate the investigating agencies from extraneous influences of the
executive, which reveals that this Court had issued directions having carefully
and thoroughly examined the entire structure and mode of functioning of the CBI
and felt need to improve and innovate the procedure and fructify the new ideas
for betterment of the polity.
not in dispute that on the basis of the judgment in Vineet Narain (supra) the
appellant did intervene by promulgation of the aforementioned Ordinance and,
thus, a subordinate legislation in the form of the 1996 Rules would cease to
exist as the Ordinance provides for the process of selection to the post of
not in dispute that the Parliament had since given its approval to the said
Ordinance enacting the Central Vigilance Commission Act, 2003, which received
the assent of the President of India on 11.9.2003. By reason of Section 26 of
the said Act, the Delhi Special Police Establishment Act, 1946 was amended
which is to the following effect :
In the Delhi Special Police Establishment Act,
section 1, the following section shall be inserted, namely :- "1A. Words
and expressions used herein and not defined but defined in the Central
Vigilance Commission Act, 2003, shall have the meanings, respectively, assigned
to them in that Act";
section 4, the following sections shall be substituted, namely :- "4(1)
The superintendence of the Delhi Special Police Establishment in so far as it
relates to investigation of offences alleged to have been committed under the
Prevention of Corruption Act, 1988, shall vest in the Commission.
Save as otherwise provided in sub-section (1), the superintendence of the said
police establishment in all other matters shall vest in the Central Government.
The administration of the said police establishment shall vest in an officer
appointed in this behalf by the Central Government (hereinafter referred to as
the Director) who shall exercise in respect of that police establishment such
of the powers exercisable by an Inspector-General of Police in respect of the
police force in a State as the Central Government may specify in this behalf.
The Central Government shall appoint the Director on the recommendation of the
Committee consisting of
Central Vigilance Commissioner Chairperson;
Vigilance Commissioners - Members;
Secretary to the Government of India in-charge of the Ministry of Home Affairs
in the Central Government - Member;
Secretary (Coordination and Public Grievances) in the Cabinet Secretariat -
While making any recommendation under sub- section (1), the Committee shall
take into consideration the views of the outgoing Director.
The Committee shall recommend a panel of officers
the basis of seniority, integrity and experience in the investigation of
anti-corruption cases; and (b) chosen from amongst officers belonging to the
Indian Police Service constituted under the All- India Services Act, 1951 for
being considered for appointment as the Director." From the above it is
clear that the procedure laid down in the Rules is inconsistent with the
directions issued by this Court in Vineet Narain (supra). As noticed
hereinbefore, the said directions were issued pending legislation in this
behalf by the Parliament. Once by reason of a Parliamentary Act, the procedure
for appointment of the Director, CBI has been laid down, it is idle to contend
that the 1996 Rules would still survive.
composition of the Committee for the purpose of preparation of panel has been
laid down in sub-section (1) of Section 4A. While making the recommendation by
preparing a panel of officers, the Committee is not only to take into
consideration the views of the outgoing Director but the same would also be
based on clauses (a) and (b) of sub-section (3) of Section 4A of the Act.
it commends to us that if in terms of Section 4A of the Delhi Special Police
Establishment Act, all the eligible IPS officers are required to be considered,
the same may give rise to practical difficulties. It is not in dispute that the
post of Director, CBI, is considered to be a superior post. It is a tenure post
and on the expiry of the period specified therefor, the officer may be
transferred to any other post or reverted to his own post.
although is a criteria but merit indisputably would play a decisive role which
is required to be determined with other relevant considerations, namely,
integrity and experience in the investigation in anti-corruption cases.
therefore, feel that in the interest of justice, a clarification is required to
be issued as regard seniority of the officers who are eligible for consideration
therefor to the effect that ordinarily all the IPS officers of the senior-most
four batches in service on the date of retirement of CBI Director, irrespective
of their empanelment shall be eligible for consideration for appointment to the
post of Director, CBI. The aforementioned clarification, in our considered
opinion, would not lead the Committee to consider the cases of a large number
of officers unnecessarily and further would act as an insulation to the
possible misuse or arbitrary exercise of the power of the concerned authority.
We, therefore, direct that as regards seniority mentioned in Section 4A of the
Act, ordinarily all the IPS Officers of the senior-most four batches in the
service on the date of retirement of CBI Director, irrespective of their
empanelment, shall be eligible for consideration for appointment to the post of
Director, CBI. This direction is in the nature of explanation to Section 4A of
the Act. Learned Attorney General consented to the said direction.
to the question as to what relief(s) the first respondent is entitled to, we
find that the first respondent as also Shri Raghavan have retired. We are,
therefore, of the opinion that no relief in favour of the first respondent, as
prayed for by him, can be granted as for all intent and purpose the directions
issued by the Tribunal have been rendered infructuous. This Court cannot in
exercise of its jurisdiction under Article 136 of the Constitution of India,
issue a writ of or in the nature of mandamus directing Union of India to
appoint the first respondent as Director, CBI with retrospective effect.
Moreover, the first respondent was never empanelled and, therefore, no question
for issuing direction as regards to his appointment to the post of Director
could arise. We, therefore, modify the order and judgment under appeal to the
the aforesaid modification, the appeal stands disposed of. There shall be no
order as to costs.