Centre For PIL &
ANR. Vs Union of India & ANR
J U D G M E N T
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 the legality of such decisions. While deciding this case, we
must keep in mind the difference between legality and merit as also between judicial
review and merit review. On 3rd 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 recommendation dated 3rd September, 2010 and the
appointment based thereon. As of 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, 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 given by the concerned
Ministries. On 6th November, 1991, 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 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 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 Undertaking Committee of the Kerala Assembly. The
38th 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 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 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.
8.
Elections
were held in the State of Kerala on 20th May, 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 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 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 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)
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.
13.
In
its letter dated 4th November, 2005, the State took 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.
14.
On
18th May, 2006 again, the Left Democratic Front 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.
15.
Vide
letter dated 10th October, 2006, the Chief 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. Vide
letter dated 25th November, 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
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 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
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 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.
18.
Vide
order dated 18th September, 2007, the Government of Kerala appointed Shri P.J. Thomas
as the Chief Secretary. Thereafter, on 6th October, 2008 CVC 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 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 Minister which was approved
on the same day. On 4th 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
19.
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
20.
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.
21.
In
September, 1997, the Government of India established the Independent Review
Committee to monitor the 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 statutory status. It also recommended
that the selection of 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.
22.
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.
23.
On
18th December, 1997 the judgment in the case of Vineet Narain v. Union of India
[(1998) 1 SCC 226] came to be delivered. Exercising authority under Article 32
read with 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.
24.
The
judgment in Vineet Narain's 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 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
integrity institutions. In Hongkong we have an Independent 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 integrity institution. This is clear from the scope and ambit
(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 administration. The 2003 Act provides for a mechanism by
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.
27.
For the purposes of deciding this case, we need to quote the relevant
provisions of the 2003 Act. 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-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 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 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.
8. Functions and powers
of Central 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 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 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 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 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;
(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 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 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 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 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 3
rd 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.
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 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 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 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 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 6th 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 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 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 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 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.
39.
In
Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417], the Division Bench of
the Punjab and Haryana High 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 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;
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 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.
42.
In
R.K. Jain v. Union of India [(1993) 4 SCC 119] 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 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 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.
43.
In
the case of Hari Bansh Lal v. Sahodar Prasad 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
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 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.
45.
Even
in R.K. Jain's case (supra), this Court observed 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 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 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,
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 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 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
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. 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
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 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 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 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
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 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 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 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
54.
The
2003 Act came into force on and from 11th 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 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, 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.
(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.
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
CENTRE FOR PIL &
ANR. Petitioner(s) VERSUS UNION OF INDIA & ANR.
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.
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 P.S. Assistant
Registrar
[Signed reportable
judgment is placed on the file.]
Back