Supreme Court of India
CENTRE FOR PIL & ANR.versusUNION OF INDIA & ANR.
- Citation
- 2011 INSC 175
- Decided
- 3 March 2011
- Disposal
- Case Allowed
- Bench
- S H KAPADIA
Holding
The recommendation dated 3 September 2010 of the High Powered Committee is non‑est in law, rendering the appointment of Shri P.J. Thomas as Central Vigilance Commissioner void.
Summary
The Supreme Court examined the legality of Shri P.J. Thomas's appointment as Central Vigilance Commissioner under Section 4(1) of the Central Vigilance Commission Act, 2003, which was based on a recommendation by the High Powered Committee (HPC). The Court found that the HPC failed to consider material indicating pending criminal and disciplinary proceedings against Thomas, thereby neglecting the statutory duty to safeguard the institution's integrity. It held that the recommendation was non est in law, quashing Thomas's appointment. The Court also clarified that unanimity is not required under Section 4(2), that the President must act on the Prime Minister’s advice under Articles 74 and 77, and that a writ of quo warranto is appropriate to challenge unlawful appointments. The petitions were allowed and the appointment set aside.
Issues considered
- The recommendation of the High Powered Committee under Section 4(1) of the Central Vigilance Commission Act, 2003, was it legally valid?
- Whether the HPC must consider institutional integrity and pending proceedings of the candidate?
- Is unanimity or consensus required under Section 4(2) of the Act for the recommendation?
- Is the President bound by the Prime Minister’s advice under Articles 74 and 77 of the Constitution?
- Whether a writ of quo warranto is maintainable in this context?
Legislation cited
- Central Vigilance Commission Act, 2003s. 3(3), s. 4(1) proviso, s. 4(2), s. 5(3), s. 6(1)
- Code of Criminal Procedure, 1973s. Section 197
- Constitution of Indias. Article 74, s. Article 77(3)
- Indian Penal Code, 1860s. Section 1208, s. Section 120B
- Prevention of Corruption Act, 1988s. Section 13(1)(d), s. Section 13(2)
- Rules of Business, 1961
Subjects
Central Vigilance CommissionappointmentHigh Powered Committeeinstitutional integrityquo warrantojudicial reviewstatutory dutyanti‑corruptionintegrity institutionArticle 74Article 77
Judgment
• (2011] 4 S.C.R. 445
CENTRE FOR PIL & ANR. A
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 348 of 2010)
MARCH 3, 2011
B
[S.H. KAPADIA, CJI, K.S. RADHAKRISHNAN AND
SWATANTER KUMAR, JJ.]
Central Vigilance Commission Act, 2003:
c
Object of its enactment - Discussed.
s.4(1), proviso - Appointment of respondent no.2 (Shri
P.J. Thomas) as Central Vigilance Commissioner on
recommendation of the High Powered Committee - Held: Is
non est in law and is quashed. D
s.4(1), proviso - Recommendation under - Primary
consideration for making the recommendation - Duty of the
High Powered Committee (HPC) - Held: If the institutional
competency would be adversely affected by pending criminal E
proceedings against the candidate and by that touchstone the
candidate stands disqualified then it is the duty of the HPC
not to recommend such a candidate - While making the
recommendation, the HPC performs a statutory duty - The
word 'recommendation' in the proviso stands for an informed F
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 - The object and
purpose of the 2003 Act is to have an integrity Institution like
eve which is in-charge of vigilance administration and which G
constitutes an anti-corruption mechanism - The 2003 Act
confers autonomy and independence to the institution of eve
so that the Central Vigilance Commissioner could act without
fear or favour - The institution is more important than an
445 H
446 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A individual - 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 - The HPC has, therefore, to take
B into consideration the values, independence and impartiality
of the Institution - In the instant case, this vital aspect was not
taken into account by the HPC while recommending the name
of respondent no.2 (Shri P.J. Thomas) as Central Vigilance
Commissioner - The entire emphasis was placed by the
c eve, the DoPT and the HPC only on the bio-data of the
empanelled candidates - None of these authorities looked
at the matter from the larger perspective of institutional
integrity including institutional competence and functioning of
CVC - All the notings of DoPT observed that penalty
proceedings may be initiated against respondent no.2 -
0
However, such notings were not considered in juxtaposition
with the clearance of CVC - Even in the brief submitted to
the 1-IPC by DoPT, there was no reference to the said notings
- In the C. V. of respondent no.2 also there was no reference
E to the earlier notings of DoPT recommending initiation of
penalty proceedings against him - Therefore, even on
personal integrity, the HPC did not consider the relevant
material and, therefore, the recommendation of name of
respondent no. 2 was non est in law - Penal Code, 1860 -
s.120-B - Prevention of Corruption Act - s.13(1)(d).
F
s.4(1) - Advice tendered to the President by the Prime
Minister regarding appointment of the Central Vigilance
Commissioner - Binding effect of - Held: Central Vigilance
Commissioner is appointed uls.4(1) by the President by
G warrant under her hand and seal after obtaining the
recommendation of the HPC, consisting of the Prime Minister
as {he Chairperson and two other Members - Although under
the Act, the Central Vigilance Commissioner is appointed
after obtaining the recommendation of the HPC, such
H recommendation has got to be accepted by the Prime
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
447
Minister, who is the concerned authority u/Article 77(3), and A
if such recommendation is forwarded to the President ul
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 B
Minister regarding appointment of the Central Vigilance
Commissioner will be binding on the President - Constitution
of India, 1950 - Articles 74, 77.
s.4(1), proviso, s.4(2) - Unanimity or consensus uls.4(2)
- Held: Under proviso to s.4(1), Parliament has put its faith C
in the HPC consisting of the Prime Minister, the Minister for
Home Affairs and the Leader of the Opposition in the House
of the People - Such Committee, entrusted with wide
discretion to make a choice, is expected to exercise its powers
in accordance with toe Act, objectively and in a fair and D
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 intentiop, that such Committee will act in a bipartisan ·
manner and shall perform its statutory duties keeping in view E
the larger national interest - Each member is presumed by
the legislature to act in public interest - If veto power is given
to one of the three Members, the working of the Act would
become unworkable - Moreover, s. 4(2) stipulates that the
vacancy in the Committee shall not invalidate the F
appointment - This provision militates against the argument
. of the petitioner that the recommendation uls.4 has to be
unanimous - To accept such contention would mean
conferment.pf,a "veto right" on one of the members of the HPC
- To confer such a power on one of the members would G
amount to judicial legislation - Therefore, it is incorrect to
state that the recommendation/decision of name of
respondent no.2 (P.J. Thomas) stood vitiated on the ground
that it was not unanimous - Doctrine of reasonableness or
equality.
H
A
448 SUPREME COURT REPORTS [2011) 4 S.C.R.
Chapter Ill - Central Vigilance Commission - Functions
•
and powers of - Discussed.
s. 3(3)(a) - Appointment of Central Vigilance
Commissioner, Vigilance Commissioner - Eligibility criteria
- Discussed.
B
Setting up of CVC - Historical background and purpose
behind the setting up of CVC - Discussed.
Concept of integrity institution - Held: Exists in Australia,
C US, UK, Canada, Hongkong - CVC is an integrity institution
- It is an institution statutorily created under the Act - It is to
supervise vigilance administration - The Act provides for a
mechanism by which the eve retains control over CBI - It is
given autonomy and insulation from external influences under
the Act.
0
s. 4(2) - Appointment of Central Vigilance Commissioner,
Vigilance Commissioner - Guidelines - There is no
prescription of unanimity or consensus uls. 4(2) - Therefore,
if one Member of the Committee dissents, that Member
E should give reasons for the dissent and if the majority
disagrees with the dissent, ·:ie majority shall give reasons for
overruling the dissent - This would bring about fairness-in-
action - In future, the zone of consideration should be in terms
of s.3(3) - It shall not be restricted to civil servants - All the
F civil servants and other persons empanelled shall be
outstanding civil servants or persons of impeccable integrity
- 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 -
G The empanelment shall be carried out by a person not below
the rank of Secretary to the Government of India in the
concerned Ministry - The empanelling authority, while
forwarding the names of the empanelled officers/persons,
shall enclose complete information, material and data of the
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
concerned officer/person, whether favourable or adverse -
449
A
Nothing relevant should be withheld from the Selection
Committee - It would 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 B
adverse remarks is specifically brought to the notice of the
Selection Committee - The Selection Committee may adopt
a fair and transparent process of consideration of the
empanelled officers - Guidelines.
Administrative law: Judicial review and merit review - C
Difference between - Held: Government is not accountable
Jo 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. D
Writ: Writ of Quo Warranto - Appointment of respondent
no.2 (Shri P.J. Thomas) as Central Vigilance Commissioner
on recommendation of the High Powered Committee - Writ
of Quo Warranto challenging the appointment - Held: The E
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 F
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 - In the instant G
petition, a declaratory relief was sought besides seeking a writ
of quo warranto - In the main writ petition, the petitioner prayed
for issuance of any other writ, direction or order which the Court
may deem fit and proper in the facts and circumstances of
the case - Thus, nothing prevented the Court from issuing a H
450 SUPREME COURT REPORTS [2011] 4 S.C.R.
e
A writ of declaration - Further, recommendation of the HPC and,
consequently, the appointment of respondent no. 2 was in
contravention of the provisions of the 2003 Act - If public
duties are to be enforced and rights and interests are to be
protected, then the court may, in furtherance of public interest,
B consider it necessary to inquire into the state of affairs of the
subject matter of litigation in the interest of justice - Central
Vigilance Commission Act, 2003.
Words and phrases: Word 'recommendation' -
C Connotation of, in the context of Central Vigilance
Commission Act, 2003.
In the instant writ petitions filed under Article 32 of
the Constitution of India, the legality of the appointment
of respondent no.2 (Shri P.J. Thomas) as the Central
D Vigilance Commissioner under Section 4(1) of the Central
Vigilance Commission Act, 2003 was challenged.
Respondent no.2 was appointed to IAS (Kerala
Cadre), 1973 batch where he served in different
E capacities with the State Government. During that period,
15000 MT of palmolein oil was imported. There was
allegation of irregularities committed in the said import.
An FIR was registered against the then Chief Minister and
six others including respondent no.2 under Section 13(2)
F r.w. Section 13(1)(d) of the Prevention of Corruption Act,
1988 and Section 1208, IPC. The State Government
accorded sanction for prosecution. In the charge sheet
before the trial court, definite role was attributed to
respondent no.2. On 18th January, 2001, a note was put
that departmental enquiry should be held against
G respondent no.2 and another. On 3rd June, 2003, the eve
conveyed its opinion to the DOPT that DOPT should
initiate major penalty proceedings against respondent
no.2. The matter was still kept pending despite receipt of
opinion of the eve. In the meanwhile, the State of Kerala
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
451
by letter dated 24th January, 2005, wrote to the DOPT its A
desire to withdraw the request for according sanction for
prosecution of the officers including respondent no.2.
However, on 10th October, 2006, State Government again
wrote a letter to Government of India informing them
about its decision to continue the prosecution launched 8
by it and it sought to withdraw letter dated 24th January,
2005. By order dated 18th September, 2007, respondent
no.2 was appointed as the Chief Secretary. There were
at least six notings of DoPT between 26th June, 2000 and
2nd November, 2004 which recommended initiation of C
penalty proceedings against respondent no.2 and yet
clearance was given by CVC on 6th October, 2008 and
in the Brief prepared by DoPT dated 1st September, 2010
and placed before HPC, there was no reference to the
earlier notings of the then DoPT nor any reason was
given as to why eve had changed its views while 0
granting vigilance clearance on 6th October, 2008. On
23rd January, 2009, respondent no.2 was appointed as
Secretary, Parliamentary Affairs to the Government of
India. The DoPT empanelled three officers on 1st
September, 2010 for the post of Central Vigilance E
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 and
disagreement was recorded by the Leader of the
Opposition. Despite the disagreement, the name of F
respondent no.2 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, G
the same note was submitted to the President who also
approved it on the same day. Consequently, respondent
no.2 was appointed as Central Vigilance Commissioner.
The instant writ petitions were filed challenging the
legality of the appointment of respondent no.2. H
452 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A Allowing the writ petitions, the Court
HELD: 1. The recommendation dated 3rd September,
2010 of the High Powered Committee recommending the
name of respondent no.2 as Central Vigilance
Commissioner under the proviso to Section 4(1) of the
8 Central Vigilance Commission Act, 2003 is non est in law
and, consequently, the impugned appointment of
respondent no.2 as Central Vigilance Commissioner is
quashed. [Para 56] (507-H; 508-A]
C 2. Setting-up of CVC: 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)
o Domestic Vigilance Units in the Ministries/ Departments,
Government companies, Government Corporations,
nationalized banks and PSUs (iv) CVC.Thus, eve as an
integrity institution was set up by the Government of India
in 1964 vide Government Resolution pursuant to the
E 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
F eve was to improve the vigilance administration of the
country. 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
G 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
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
Sabha. It also recommended that the appointment shall
453
A
be made by the President of India on the specific
recommendations made by the HPC. That, the eve shall
be responsible for the efficient functioning of CBI; CBI
shall report to eve about cases taken up for
investigations; the appointment of CBI Director shall be B
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 c
Enforcement. On 18th December, 1997, the judgment in
the case of *Vineet Narain was 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 0
given a statutory status as recommended by
Independent Review Committee. The judgment in *Vineet
Narain's case was followed by the 1999 Ordinance under
which CVC became a multi-member Commission headed
by Central Vigilance Commissioner. The 1999 Ordinance E
conferred statutory status on CVC. The said Ordinance
incorporated the directions given by this Court in *Vineet
Narain's case. The 1999 Ordinance stood promulgated to
improve the vigilance administration and to create a
culture of integrity as far as government administration
is concerned. The said 1999 Ordinance was ultimately F
replaced by the enactment of the 2003 Act which came
into force with effect from 11th September, 2003.[ [Para
20-25) [476-C-H; 477-A-H; 478-A]
*Vineet Narain v. Union of India (1998) 1 SCC 226 - G
relied on.
3.1. Analysis of the 2003 Act: The 2003 Act was
enacted to provide for the constitution of a Central
Vigilance Commission as an institution to inquire or H
454 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A 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
s and local authorities owned or controlled by the Central
Government and for matters ..connected therewith or
incidental thereto. In Australia, US, UK and Canada, there
exists a concept of integrity institutions. Hongkong has
an Independent Commission against corruption. In
c Western Australia, there exists a statutory Corruption
Commission. Queensland has Misconduct Commission.
In New South Wales, there is Police Integrity
Commission. All these come within the category of
· integrity institutions. CVC is an integrity institution. The
D 2003 Act gives a statutory status to CVC. It stands
established as an Institution. eve stands established to
inquire into offences alleged to have been committed
under the Prevention of Corruption Act, 1988 by certain
categories of public servants. Under Section 3(3)(a), the
E 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
F 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. The said words 'who have
been or who are' indicate the eligibility criteria and further
G 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 which is
highlighted is that the constitution of eve as a statutory
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
455
body under Section 3 shows that CVC is an Institution. A
The key word is "Institution". The emphasis on the key
word is for the simple reason that in the instant case, the
recommending authority (High Powered Committee) had
gone by personal integrity of the officers empanelled and
not by institutional integrity. [Paras 26, 28] [478-B-E; 484- B
E-H; 485-A-B]
N. Kannadasan v. Ajoy Khose and Others (2009) 7 SCC
1 - relied on.
3.2. Section 4 refers to appointment of Central C
Vigilance Commissioner and Vigilance Commissioners.
Under Section 4(1 ), they are to be appointed by the
President by warrant under her hand and seal. Sectio11
4(1) indicates the importance of the post. Section 4(1) has
a proviso. Every appointment under Section 4(1) is to be '.O
made after obtaining the recommendation of a committee
consisting of the Prime Minister as Chairperson; the
Minister of Home Affairs as Member and the Leader of the
Opposition in the House of the People as Member. The
key word in the proviso is the word "recommendation". E
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 F
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 G
of the 2003 Act. 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 H
456 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A 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
B competency into account. If the selection adversely
affects institutional competency and functioning then it
shall be the duty of the HPC to not recommend such a
candidate. Thus, the institutional integrity is the primary
consideration which the HPC is required to consider
c while making recommendation under Section 4 for
appointment of Central Vigilance Commissioner. In the
instant case, this vital aspect was not taken into account
by the HPC while recommending the name of respondent
no.2 for appointment as Central Vigilance Commissioner.
The HPC has also to keep in mind the object and the
0
policy behind enactment of the 2003 Act. The 2003 Act
indicates 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
E Institution of eve 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. The HPC has, therefore,
F to take into consideration the values, independence,
impartiality of the Institution and the institutional
competence. [Paras 29, 30] [485-C-H; 486-A-H; 487-A-C]
3.3. Chapter Ill refers to functions and powers of the
G Central Vigilance Commission. eve 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
H which a public servant specified in sub-section (2) may,
• CENTRE FOR PIL & ANR. v. UNION GF INDIA & 457
ANR.
under the Code of Criminal Procedure, 1973 be charged A
with at the trial. Thus, eve 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 B
committed under the Prevention of Corruption Act, 1988
or under the Code of Criminal Procedure by a public
servant. eve is also empowered to exercise
superintendence over the vigilance administration of
various ministries of the Central· Government, PSUs, c
Governn~ent companies etc. The powers and functions
discharged. by eve is the sole reason for giving the
institution the a~ministrative autonomy, independence
and insulation from external influences. [Para 31] (487·0·
H] D
4.1. Validity of the recommendation dated 3rd
September, 2010: 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. Appointment to E
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. The decision to recommend has got to
be an informed decision keeping in mind th~ fact that eve F
as an institution has to perform an im'portant 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 G
then its decision would stand vitiated on the ground of
official arbitrariness. 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. When
institutional integrity is in question, the touchstone should H
458 SUPREME COURT REPORTS [2011) 4 S.C.R. •
A be "public interest" which has got to be taken into
consideration by the HPe and in such cases the HPe
may not insist upon proof. However, it is not that the
personal integrity is not relevant. It certainly has a co-
relationship with institutional integrity. In the instant case,
s the entire emphasis was placed by the eve, the DoPT
and the HPe only on the bio-data of the empanelled
candidates. None of these authorities looked at the
matter from the larger perspective of institutional integrity
including institutional competence and functioning of
c eve. Moreover, 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 respondent no.2.
Whether State should initiate such proceedings or the
0
Centre should initiate such proceedings was not relevant.
What was relevant was that such notings were not
considered in juxtaposition with the clearance of eve
granted on 6th October, 2()_08. Even in the brief submitted
to the HPe !>Y ·DoPT, ther,e"was no reference to the said
E notings.' betWeen the years 2000 and 2004. Even in the
C.V. of re~pondent no.2, there was no reference to the
earlier riotings of DoPT recommending initiation of
penalty proceedings against him. Therefore, even on
personal integrity, the HPC did not consider the relevant
F material. 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
G through various statutory bodies like eve which is
empowered to perform the function of vigilance
administration. It is the independence and impartiality of
the institution like eve which has to be maintained and
preserved in larger interest of the rule of law. [Para 33]
H [488-A-H; 489-A-H; 490-A-C]
• CENTRE FOR PIL & ANR. v. UNION OF INDIA & 459
ANR.
State of Andhra Pradesh v. Na/la Raja Reddy (1967) 3 A
SCR 28, relied on.
4.2. If the institutional competency would be
adversely affected by pending proceedings and if by that
touchstone the candidate stands disqualified then it shall
8
be the duty of the HPC not to recommend such a
candidate. In the instant case, apart from the pending
criminal proceedings, between the period 2000 and 2004
various notings of DoPT recommended disciplinary
proceedings against respondent no.2 in respect of
Palmolein case. Those notings were not considered by C
the HPC. 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. The
institution is more important than an individual. This was the D
test laid down in N. Kannadasan's case. In the instant case,
the HPC failed to take this test into consideration. The
recommendation dated 3rd September, 2010 of HPC was
entirely premised on the blanket clearance given by eve
on 6th October, 2008 and on the fact of respondent No. E
2 being"~'ppointed as Chief Secretary of Kerala on 18th
September, 2007; his appointment as Secr~.tary 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 F
pendency of Palmolein case'--before the Special Judge;
the sanction accorded by the Government of Kerala on
30th November, 1999 under Section 197 Cr.P.C. for
prosecuting inter alia respondent no.2 for having
committed alleged offence under Section 120-B IPC read G
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 Kera/a in
which this Court observed that, "the registration of the
FIR against Shri Karunakaran and others cannot be held H
460 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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
B with law". The clearance of CVC dated 6th October, 2008
was not binding on the HPC. However, the judgment of
the Supreme Court in the case of **K. Karunakaran vs.
State of Kera/a was certainly binding on the HPC and, in·
any event, required due weightage to be given while
c making recommendation, particularly when the said
judgment had emphasized the importance of probity in
high offices. Thl!refore, the recommendation made by the
HPC on 3rd September, 2010 is non-est in law. [Para 33]
[490-D-H; 491-A-G]
D **K. Karunakaran vs. State of Kera/a and Another 2000(2)
SCR 735 - referred to.
5.1. Is Writ of Quo Warranto invocable? The
procedure of quo warranto confers jurisdiction and
E 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
F 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. In the instant petition, a
G declaratory relief is also sought besides seeking a writ
of quo warranto. 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
H prevented this Court, if so satisfied, from issuing a writ
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
461
of declaration. If public duties are to be enforced and A
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. [Paras 35-37]
[491-G; 492-F-H; 493-A] . B
Ashok Lanka v. Rishi Dixit (2005) 5 SCC 598; Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417; R.K.
Jain v. Union of India (1993) 4 SCC 119; Hari Bansh Lal v.
Sahodar Prasad Mahto (2010) 9 SCC 655 - relied on .
c
5.2. Difference between judicial review and merit
review. 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 D
jurisdiction. [Paras 44, 45] [496-H; 497-A; D-E]
6. Appointment of Central Vigilance Commissioner at
the President's discretion: The Central Vigilance
Commissioner is appointed under Section 4(1) of the E
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. Although under the 2003 Act, the
Central Vigilance Commissioner is appointed after F
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 G
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. There is H
462 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 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 t'resident is not to act on the advice of the
Council of Ministers as is provided in Article 74 of the
B Constitution. [Para 48] [501-D-H; 502-A-E]
Bhuri Nath v. State of J & K (1997) 2 SCC 745; Hardwari
Lal v. G.D. Tapase AIR 1982 P&H 439 - held inapplicable.
Samsher Singh v. State of Punjab (1974) 2 SCC 831 -
C referred to.
7. 'lnanimity or consensus under Section 4(2) of the
2003 Act: Under the proviso to Section 4(1), Parliament
has put its faith in the High Powerert Committee
0 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 entru:;ted with wide discretion to make a
choice will exercise its powers in accordance with the
E 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
F 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
G 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.
H To accept such contention would mean conferment of a
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
463
"veto right" on one of the members of the HPC. To confer A
such a power on one of the members would amount to
judicial legislation. Therefore, it is incorrect to state that
the recommendation/decision dated 3rd September, 201 O
stood vitiated on the ground that it was not unanimous.
[Paras 50, 53] [503-E-H; 504-A-C; 505-G] B
Grindley and Another v. Barker 1 Bos. & Pul. 229 -
referred to.
Halsbury's Laws of England - referred to.
c
8. Guidelines/DirectiOns of this Court: 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 D
civil post under the Union having requisite knowledge
and experience as indicated in Section 3(3)(a); ru:
(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 E
in finance including insurance and banking, law, vigilance
and investigations. No reasons were given as to why in
the instant case, the zone of consideration stood
restricted only to the civil service. Therefore following
directions are passed:
F
(i) 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 tha High Powered Committee. As in the instant G
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 legality of the H
464 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A choice or selection is open to judicial review, 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
B
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
c 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
D by the empanPllir1i1 authority.
(v) The empanefrne .. t shall be carried out by a person
not below the rank of Secretary to the Government
of India in tne conc.:rned Ministry.
E (vi) The emp ... nelling 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
F 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 of,ficer under
G 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
H
• CENTRE FCR PIL & ANR. v. UNION OF INDIA &
,_
ANR.
465
empanelled officers. (Paras 54, 55] (505-H; 506-A-H; A
507-A-G]
•. ':t.
Case Law Reference:
(1998) 1 sec 226 relied on Paras 23, 24,
33, 49 B
(2009) 1 sec 1 relied on Paras 28, 33
(1967) 3 SCR 28 relied on·
Para 33
c
2000(2) SCR 735 referred to Para 33
(2005) 5 sec 598 relied on Paras 37, 38
(1985) 4 sec 417 relied on Para 39, 44
(201 O) 9 sec 655 relied on Para 43 D
(1993) 4 sec 119 relied on Para 42, 45, 48
(1974) 2 sec 831 referred to Para 48
(1997) 2 sec 745 held inapplicable Para 48 E
AIR 1982 P&H 439 held inapplicable Para 48
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
348 of 2010 etc.
F
Under Article 32 of the Constitution of India.
WITH
Writ Petition (C) No. 355 of 2010.
G
Goolam E. Vahanvati, AG, K.K. Venugopal, Prashant
Bhushan, Pranav Sachdeva, Siddharth Bhatnagar, Prashant
Kumar, B.S. lyenger (for AP & J Chambers), Devadatt Kamat,
T.A. Khan, Anoopam N. Prasad, Nishanth Patil, Rohit Sharma,
Naila Jung, Anil Katiyar, S.N. Terdal, Gopal Sankaranarayanan, H
Wills Mathews, Rajdipa Behura, Shyam Mohan, D.K. Tiwari, A.
466 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A Venayagam Balan, Wills Mathews, Braj Kishore Mishra,
Aparna Jha, Vikas Malhotra, M.P. Sahay, Abhisehk Yadav,
Vikram for the appearing parties.
The Judgemnt of the Court was delivered by
B S. H. KAPADIA, CJI.
Introduction
1. The two writ petitions filed in this Court under Article 32
C 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).
0
2. Government is not accountable to the courts in respect
of policy decisions. However, they are accountable for the
legality of :;uch 1ecisions. While deciding this case, we must
keep in mind the difference between legality and merit as also
E betweE 1 judicial ~eview 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 recomme11ded tr1e name of ~hri P.J. Thomas for
appointment to the post of Central Vigilance Commissioner.
F 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
G purposes and in the manner envisaged by the said Act,
otherwise such recommendation will have no existence in the
eye of law.
Clarification
H 3. At the very outset we wish to clarify that in this case our
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
467
judgment is strictly confined to the legality of the A
recommendation dated 3rd September, 2010 and the
appointment based thereon. As of dcite, Shri P.J. Thomas is
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 B
Prevertion of Corruption Act, 1988 and under Section 1208 of
the Indian Penal Code ("IPC" for short) [hereinafter referred to
as the "Palmolein case"]. According to the petitioners herein,
Shri P.,1. Th0mas allegedly has played a big part in the cover-
up of the 2G spectrum allocation which matter is subjudice. c
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 D
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 E
served in di'ferent 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 F
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 G
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 H
468 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 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
B 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
c 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
D to permit the State to import 15,000 MT of Palmolein on the
terms anrl conditions stipulated in the Ministry's circular of even
number dated 6th Novernher, 1991 It was specifically stated
that the service charges up to a maximum of 15% in Indian
rupees may be paid. Pfter some further correspondence, the
E 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.
F 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
G 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
H Kerala Legislative Assembly - Committee on Public
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJL]
469
Undertakings dated 19th March, 1996, inter afia, referred to the A
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 8
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 Mis. Power and Energy Pvt. Ltd., the C
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 D
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 E
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.
F
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 G
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 H
470 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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 De'Tlocratic Front formed the government.
8
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 1208 of the IP.C. The State of Kerala
C 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 Palmolejn, including respondent
No. 2 on 30th November, 1999.
9. Shri Karunakaran, the then Chief Minister filed a petition
D 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
E 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, Thiruvananth.apuram
and in this background the State of Kerala, vide its letter dated
31st December, 1999 wrote to the Department of Personnel
F 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.
G 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
H keeping in view the rival submissions made before us, we are
• CENTRE FOR PIL & ANR. v. UNION OF INDIA u.
ANR. [S.H. KAPADIA, CJI.]
of the opinion that the registration of the FIR against the
471
A
appellants and others cannot be held to be the ·esult of mala
tides 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-1 in that petition) was also upheld by this B
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 c
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, 0
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 E
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 F
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 G
prosecution of Shri Jiji Thomson. On 18th February, 2003, the
Do PT had made a reference to the· Central Vigilance
Commission ("CVC" for short) on the cited subject, which was
responded to by the eve vide their letter dated 3rd June, 2003
and it conveyed its opinion as follows: - H
472 SUPREME COURT REPORTS [201'i] 4 S.C.R.
A "Department of Personnel o. 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
B
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 10.
c 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
D 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
E 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
F the position that the allegations made by the Investigating
Agency were invalid and the cases and request for sanction
against Srri P.J. Thomas should be withdrawn.
14. On 18th May, 2006 again, the Left Democratic Front
G 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
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA & 473
ANR. [S.H. KAPADIA, CJI.]
Secretary to the Government of Kerala again wrote a letter to A
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 B
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 c
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 D
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
compet.i<.... jurisdiction.
'.'.' ,. The request of the State Government for E
sanctioti_qy,, 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 eve 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 F
Government should come in th,e way of empanelment of these
officers for appointment to higher post in the Government.
Rather than rendering the advice asked for, the eve vide its
letter dated 25th June, 2007 informed the Ministry as follows :
G
"Department of Personnel & Training may refer to their note
dated 17.05.2007, in file No.107/1/2000-AVD-1, on the
above subject.
2. The case has been re-examined and Commission
H
474 SUPREME COURT REPORTS [2011] 4 S.e.R. •
A 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
B 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
c 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.
D 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."
E
16. It may be noticed that neither in the above reply nor
on the file any reasons are available as to why eve had
changed its earlier opinion/stand as conveyed to the Ministry
vide its letter dated 3rd June, 2003. After receiving the above
advice of eve, the Ministry on 6th July, 2007 had recorded a
F note in the file that as far as eve·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.
G 17. The legality and correctness of the order of the Kera la
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
H vide its order dated 6th December, 2006. However, the parties
• CENTRE FOR PIL & ANR. v. UNION OF !NOIA & 475
ANR. [S.H. KAPADIA, CJI.]
were given liberty to raise the plea of mala fides before the High A
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 B
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 c
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 eve accorded
vigilance clearance to all officers except Smt. Parminder M. D
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 E
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 F
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 G
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 H
476 SUPREME COURT REPORTS [2011] 4 S.C.R. e
A 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
B 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
c Commissioner and he took oath of his office.
Setting-up of eve
20. Vigilance is an integral part of all government
institutions. Anti-corruption measures are the responsibility of
D the Central Government. Towards this end the Government set
up the following departments :
(i) CBI
(ii) Administrative Vigilance Division in DoPT
E
(iii) Domestic Vigilance Units in the Ministries/
Departments, Government companies, Government
Corporations, nationalized banks and PSUs
F
(iv) eve
21. Thus, CVC as an integrity institution was set up by the
Government of India in 1964 vide Government Resolution
pursuant to the recommendations of Santhanam Committee.
However, it was not a statutory body at that time. According to
G 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 eve was to improve
the vigilance administration of the country.
H 22. In September, 1997, the Government of India
• CENTRE FOR PIL & ANR. v. UNION OF INDIA & 477
ANR. [S.H. KAPADIA, CJI.)
established the Independent Review Committee to monitor the A
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 eve be given a
statutory status. It also recommended that the selection of
Central Vigilance Commissioner shall be made by a High B
Powered Committee comprising of the Prime Minister, the
Home Minister and the Leader of Opposition in Lok Sabha. It
also recommended that the appointment shall be made by the
President of India on the specific recommendations made by
the HPC. That, the CVC shall be responsible for the efficient c
functioning of CBI; CBI shall report to eve 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 D
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 E
Article 142, this Court in order to implement an important
constitutional principle of the rule of law ordered that eve 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 F
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 G
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 H
far as government administration is concerned.
478 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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
B 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
C 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
D 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
E 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
F the Act. It is to supervise vigilance administration. The 2003
Act provides for a mechanism by which the eve retains control
.. over CBI. That is the reason why it is given autonomy and
insulation from external influences under the 2003 Act.
27. For the purposes of deciding this case, we need to
G quote the relevant provisions of the 2003 Act.
3. Constitution of Central Vigilance Commission.-
(2) The Commission shall consist of-
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
479
(a) a Central Vigilance Commissioner - Chairperson; A
(b) not more than two Vigilance Commissioners -
Members.
(3) The Central Vigilance Commissioner and the Vigilance
Commissioners shall be appointed from amongst 8
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 C
to vigilance, policy making and administration including
police administration;
4. Appointment of Central Vigilance Commissioner and
Vigilance Commissioners. -
D
(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 E
shall be made after obtaining the recommendation of a
Committee consisting of-
(a) the Prime Minister - Chairperson;
(b) the Minister of Home Affairs - Member; F
(c) the Leader of the Opposition in the
House of the People -Member.
Explanation.-For the purposes of this sub-section, "the G
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.
H
480 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A (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. -
B
(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,
c 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
D 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.
E (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
F 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.
G
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
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
481
only by order of the President on the ground of proved A
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. B
(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 C
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 D
(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
(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 F
Commission-
(1) The functions and powers of the Commission shall be
to-
G
(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- H
482 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A 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
B
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
c 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
D 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
E
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
F 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
G 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:-
H (a) members of All-India Services serving in connection
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
483
with the affairs of the Union and Group 'A' officers of the A
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
B
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 C
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 0
(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 follc;iwing matters,
namely:-
(a) summoning and enforcing the attendance of any E
person from any part of India and examining him on
oath;
(b) requiring the discovery and production of any.
document; F
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from
any court or office;
G
(e) issuing commissions for the examination of
witnesses or other documents; And
(f) any other matter which may be prescribed.
H
484 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A THE SCHEDULE
[See section 5(3)]
Form of oath or affirmation to be made by the Central
Vigilance Commissioner or Vigilance Comm-
B issioner:-
"I, A. B., having been appointed Central Vigilance
Commissioner (or Vigilance Commissioner) of the Central
Vigilance Commission do swear in the name of god/
c 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
D 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. eve stands established to inquire
E 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
F 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
G 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
H eligibility criteria and further they indicate that such past or
• CENTRE FOR PIL & ANR. v. UNION OF INDIA & 485
ANR. [S.H. KAPADIA, CJI.]
present eligible persons should be without any blemish A
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 eve
as a statutory body under Section 3 shows that eve is an
Institution. The key word is Institution. We are emphasizing the B
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 C
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 D
recommendation of a committee consisting of- .
(a) The Prime Minister - Chairperson;
(b) The Minister of Home Affairs Member; E
(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 F
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 G
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 H
486 SUPREME COURT REPORTS [2011] 4 S.C.R. e
A 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,
B 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
c 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
0
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
E 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
F 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
G 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
H reference made to it by the President, has on inquiry reported
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
that the Central Vigilance Commissioner be removed. These
487
A
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 eve to work in a
free and fair environment. The prescribed form of oath under B
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 c
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 Ill refers to functions and powers of the Central D
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) E
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 F
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, G
Government companies etc. The powers and functions
discharged by eve is the sole reason for giving the institution
the administrative autonomy, independence and insulation from
external influences.
H
488 SUPREME COURT REPORTS [2011] 4 S.C.R.
A Validity of the recommendation dated 3rd September,
•
2010
32. One of the main contentions advanced on behalf of
Union of India and Shri P.J. Thomas before us was that once
B 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
C 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
D 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
E 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
F (supra)]. The decision to recommend has got to be an informed
decision keeping in mind the fact that eve 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
G circumstances then its decision would stand vitiated on the
ground of official arbitrariness [see State of Andhra Pradesh
v. Na/la 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
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA & 489
ANR. [S.H. KAPADIA, CJI.]
[see para 93 of N. Kannadasan (supra)]. When institutional A
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 B
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 c
of institutional integrity including institutional competence and
functioning of CVC. Moreover, we are surprised to fir.J that
between 2000 and 2004 the notings of DoPl dated 26th June,
2000, 18th January, 2001, 20th June, 2003, 24th February,
2004, 18th October, 2004 and 2nd November, 2004 have all
0
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 CVc1granted on 6th October, E
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 F
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 G
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 H
A
490 SUPREME COURT REPORTS [2011] 4 S.C.R.
Parliament and administer the country through various statutory
•
bodies like eve 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
s 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 eve which has to be
maintained and preserved in larger interest of the rule of law
[see Vineet Narain (supra)]. While making recommendations,
c 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
0
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
E 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 eve.
F 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
G into consideration. The recommendation dated 3rd September,
2010 of HPC is entirely premised on the blanket clearance
given by eve 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
H Parliamentary Affairs and his subsequent appointment as
• CENTRE FOR PIL & ANR. v. UNION OF INDIA & 491
ANR. [S.H. KAPADIA, CJI.]
Secretary, Telecom. In the process, the HPC, for whatever A
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 s
having committed alleged offence under Section 120-8 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 Kera/a and Another in
which this Court observed that, "the registration of the FIR c
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 D
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
eve
of dated 6th October, 2008 was not binding on the HPC.
However, the aforestated judgment of the Supreme Court dated. E
29th March, 2000 in the case of K. Karunakaran vs. State of
Kera/a 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 F
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.
G
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 H
492 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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
B 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
C 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
D 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.
E 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.
F 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
G 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.
H If public duties are to be enforced and rights and interests are
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
493
to be protected, then the court may, in furtherance of public A
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 8
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 C
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 D
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 E
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
F
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
t'1at not only was it not competent to the Court on the existing G
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. H
494 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 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
B 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
c 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
D 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
E 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 ~urt to
hold that such appointments were invalid on the ground that the
F 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
G 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
H maintainable.
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJl.J
495
42. In R.K. Jain v. Union of India [(1993) 4 SCC 119] Shri A
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 s
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 Ghandra 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 c
Shri Harish Chandra has been in the past proposed for
agpointment as a Judge of the Delhi High Court. His
appointment, however, did not materiali.ze due to certain
adverse reports. It was held by this Court that judicial review is
concerned with whether the incumbent possessed requisite
0
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 E
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 F
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 I
were factually accurate, still, this Court cannot sit in judgment
over the choice of the person made by the Central Government G
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 H
496 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 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 appointm ..mt of Shri Hari Bansh
B Lal as Chairman, Jharkhand State Electricity Board stood
challenged on the ground that the board had been constituted
in an arbitrar,y 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
C circumstances the appointment stood challenged. On the
question of m~intainability, the Division Bench of this Court held
that a writ of quo warranto lies only when the appointment is
contrary to a statutory provisiori. 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
D 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 1-lari Bansh Lal who was
appointed as the Chairperson of Jharkhand State Electricity
E 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
F 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
G 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,
H the High Court had failed to keep in mind the difference between
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
497
judicial and merit review. Further, this Court found that the A
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 B
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
ex'raneous considerations or if such selection is made in
breach of the statute or the rules. c
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 D
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. E
Appointment of Central Vigilance Commissioner at the
President's discretion
46. On behalf of respondent No. 2 it was submitted that F
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 G
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. H
498 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A 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
B 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
c 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,
D 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
E · 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
F 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
G 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
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
499
appointment of the Central Vigilance Commissioner would be A
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.
B
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 C
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 D
of Shri Mata VaishrJ 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 E
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 F
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 G
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 H
500 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 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
B 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
c 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
0
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
E 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
F 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
G 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
H Bench of the High Court, after elaborate consideration of the
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
provisions of the Act, observed that under the Maharshi
501
A
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 B
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 c
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 eve is constituted under Section
3(1) of the 2003 Act. The Central Vigilance Commissioner is 0
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
E
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 F
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 G
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 ?Judges of this Court H
A
502 SUPREME COURT REPORTS [2011] 4 S.C.R.
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
B 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
c 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
0 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
E 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
F 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
G 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
H Act was with a purpose, namely, to introduce an element of
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
bipartisanship and political neutrality in the process of
503
A
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 8
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 C
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 eve would be selected by a three member 0
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.
E
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) F
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 G
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 H
504 SUPREME COURT ~EPORTS (2011) 4 S.C.R.
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
B 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
C 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
D 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."
E 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
F 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
G 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,
H except the argument from the nature of the subject. The
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
leather being subject to seizure in every stage of the
505
A
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 B
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 c
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 0
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 E
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 F
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. G
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 H
506 SUPREME COURT REPORTS ••
[2011] 4 S.C.R.
A 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
B
under the Union having requisite knowledge and
experience as indicated in Section 3(3)(a); .Q!
(b) who have held office or are holding office in a
corporation established by or under any Central Act
c or a Central Government company and persons
who have experi~nce in finance including insurance
and banking, law, vigilance and investigations.
55. No reason has been given as to why in the present
D 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
E 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
F 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
G 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
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR. [S.H. KAPADIA, CJI.]
507
terms of Section 3(3) of the 2003 Act. It shall not A
be restricted to civil servants.
(iji) All the civil servants and other persons empanelled
shall be outstanding civil servants or persons of
impeccable integrity.
B
(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.
c
(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
D
names of the empanelled officers/persons, shall
enclose complete information, ma.terial 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 E
interest and enhance public confidence if the
contemporaneous service record and acts of
outstanding performance of the officer 'Jnder
consideration, even with adverse remarks is
specifically brought to the notice of the Selection F
Committee.
(vii) The Selection Committee may adopt a fair and
transparent process of consideration of the
empanelled officers. G
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. H
508 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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
8
as to costs.
D.G. Writ petitions allowed.
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