COMMON CAUSE & ANRversusUNION OF INDIA & ANR.

                        [2019] 3 S.C.R. 1067                             1067


                    COMMON CAUSE & ANR.                                  A
                                  v.
                    UNION OF INDIA & ANR.
                 (Writ Petition (C) No. 54 of 2019)
                       FEBRUARY 19, 2019                                 B
          [ARUN MISHRA AND NAVIN SINHA, JJ.]
      Delhi Special Police Establishment Act, 1946:
       s. 4A – Appointment of interim Director of CBI – Challenged
in petition u/Art. 32 of the Constitution – Seeking quashing of the      C
order appointing interim Director and also seeking direction to
appoint a regular Director of CBI – Plea taken that the appointment
of interim Director was not as per s.4A and was arbitrary and illegal
– Held: It is apparent from the resolution passed by the High
Powered Selection Committee constituted u/s. 4A that appointment
                                                                         D
of the interim Director was authorised by the Committee – Therefore,
the appointment was not unauthorised or illegal – The petition was
filed in undue haste without verifying the fact as to whether the
appointment was authorised – Since the regular Director has been
appointed, the main prayer of the writ also stands satisfied.
      Dismissing the Writ petition, the Court                            E

       HELD: It is clear from the resolution passed by the High
Powered Selection Committee on 9/10th January, 2019 that the
appointment of interim Director had been authorised by the
Committee under section 4A of Delhi Special Police Establishment
Act, 1946. Thus, the plea that the Committee has not authorised          F
the appointment of interim Director is totally misconceived and
petitioners have failed to verify the aforesaid facts and the petition
has been filed in undue haste without verifying the fact whether
the appointment has been authorised by the Committee for
appointment of Director constituted under section 4A of the Act.         G
[Paras 14 and 16][1074-G; 1075-C]
      2. Petitioner had also prayed for disclosure as to what was
the process being adopted by the Government to shortlist the
candidates. In reply to the application, Petitioner No.2 was advised
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                                1067
1068                SUPREME COURT REPORTS                      [2019] 3 S.C.R.


 A     to take recourse to appeal before the appellate authority under
       the RTI Act. It appears that the petitioner has not filed any appeal/
       s. Therefore, there is no ground to interfere in the matter on the
       said ground too. [Paras 18 and 19][1076-B; F]
             3. Since the regular Director has been appointed, the main
 B     prayer of the petitioner stands satisfied and there is absolutely
       no justification to continue with this writ petition in the aforesaid
       circumstances. [Para 20][1076-G]
             Vineet Narain & Ors. v. Union of India & Anr. (1998) 1
             SCC 226 : [1997] 6 Suppl. SCR 595 ; Union of India
 C           v. Namit Sharma (2013) 10 SCC 359 : [2013] 13
             SCR 96 ; Centre for PIL & Anr. v. Union of India &
             Anr. 2011 (4) SCR 445 – referred to.
                               Case Law Reference
       [1997] 6 Suppl. SCR 595           referred to              Para 5
 D
       [2013] 13 SCR 96                  referred to              Para 12
       [2011] 4 SCR 445                  referred to              Para 12
             CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
       No. 54 of 201.
 E           Under Article 32 of the Constitution of India
             K. K. Venugopal, Attorney General, Tushar Mehta, ASG,
       Rajat Nair, R. Balasubramaniam, Ms. Shraddha Deshmukh,
       Kanu Agrawal, Rajeev Ranjan, A. K. Sharma, Ankur Talwar,
       Ms. Uttara Babbar, Ms. Bhavana Duhoon, Prashant Bhushan,
 F     Rohit Kumar Singh, Ms. Cheryl D’Souza, Advs. for the appearing parties.
             The Judgment of the Court was delivered by
             ARUN MISHRA, J.
             1. The writ petition has been filed under Article 32 of the
 G     Constitution of India seeking issuance of a writ of mandamus to direct
       Union of India to appoint a regular Director of CBI forthwith by following
       the procedure laid down in section 4A of the Delhi Special Police
       Establishment Act, 1946. Prayer has also been made to quash the order
       dated 10.1.2019 issued by Union of India appointing Mr. Nageshwar
       Rao as the interim Director of CBI. A further prayer has been made to
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    COMMON CAUSE & ANR. v. UNION OF INDIA & ANR.                               1069
                [ARUN MISHRA, J.]

issue appropriate writ or direction to the Union of India to ensure that all   A
records of deliberations and rational criteria of shortlisting and selection
of the Director, CBI be properly recorded and made available to citizens
in consonance with the provisions of the RTI Act. A further prayer has
been made to direct Union of India to ensure transparency in shortlisting,
selection and appointment process of Director, CBI.
                                                                               B
       2. It is averred in the petition that the Government of India has
failed to appoint Director of CBI as per section 4A of the Delhi Special
Police Establishment Act, 1946, and has instead appointed Mr.
Nageshwar Rao as the interim Director of CBI in an arbitrary and illegal
manner.
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       3. It is further averred that petitioner no.1, Common Cause is a
registered society and petition has been filed in bona fide public interest.
However, the average annual income of the society in the last 3 financial
years is approximately Rs.1.17 crores. Petitioner No.2 is an RTI activist
and had filed applications under the Right to Information Act, 2005
seeking information about the process of appointment of the new Director       D
of CBI in terms of the process adopted for shortlisting candidates, if any,
minutes of meetings of the search and selection committee, none of
which were provided to her in violation of the RTI Act. The average
annual income of petitioner No.2 for the last three financial years is
about Rs.5 lakhs. The petitioners have no private/oblique motive.              E
Petitioners have not made any representation to the respondent in this
regard because of extreme urgency of the matter in issue except for the
letter written by Common Cause on 9.1.2019 for initiating the process of
appointment of regular Director, CBI.
       4. It is also averred that CBI is the premier investigation agency in   F
the country. It investigates corruption-related offenses connected with
the Central Government and also cases connected with State Government
entities. This Court has entrusted important cases of corruption and
violation of human rights to CBI for investigation. The Director of CBI
is the head of the organisation. He supervises all the work and is
responsible for the constitution of investigating teams for probing cases.     G
This Court and the Parliament have made determined efforts to enhance
the functional autonomy of CBI Director and limit the extent of executive
discretion in the matter of appointment of this key functionary.

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1070                SUPREME COURT REPORTS                     [2019] 3 S.C.R.


 A            5. In the case of Vineet Narain & Ors. v. Union of India &
       Anr. (1998) 1 SCC 226, this Court issued directions to insulate the CBI
       from extraneous influence. This Court directed that there should be a
       selection committee to identify a panel of names for appointment of
       Director, CBI and thereafter the final selection is to be made by the
       Appointments Committee of Cabinet (ACC). CBI Director would have
 B
       a fixed tenure of 2 years. Said direction was issued by this Court to
       ensure that ad-hocism in the appointment and functioning of CBI Director
       is eliminated and independence is maintained.
              6. Accordingly, in 2003 amendments were made to the DSEP Act
       following Vineet Narain’s case (supra). The provisions were further
 C     amended in 2013 to the DSPE Act through the Lokpal and Lokayuktas
       Act to further insulate the selection committee from government
       influence. The CBI Director is to be appointed by the Central Government
       on the recommendations of a committee comprising (a) the Prime
       Minister-Chairperson, (b) the Leader of Opposition (Member) and (c)
 D     the Chief Justice of India or any Judge of Supreme Court nominated by
       him. The Act was further amended in November 2014 to provide for the
       Leader of the single largest Opposition Party in Lok Sabha to be a member
       of the selection committee in case no Leader of Opposition is recognised.
            7. Section 4A of the Act provides for constitution of the committee.
 E     Same is extracted hereunder:
                   “4A. Committee for appointment of Director –
             (1)   The Central Government shall appoint the Director on the
                   recommendation of the Committee consisting of –

 F           (a)   the Prime Minister – Chairperson.
             (b)   the Leader of Opposition 12 recognised as such in the House
                   of the People or where there is no such Leader of Opposition,
                   then, the Leader of the single largest Opposition Party in
                   that House – Member
 G           (c)   the Chief Justice of India or Judge of the Supreme Court
                   nominated by him – Member.
             (2)   No appointment of a Director shall be invalid merely by
                   reason of any vacancy or absence of a Member in the
                   Committee.
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    COMMON CAUSE & ANR. v. UNION OF INDIA & ANR.                              1071
                [ARUN MISHRA, J.]

      (3)   The Committee shall recommend a panel of officers –               A
      (a)   on the basis of seniority, integrity, and experience in the
            investigation of anti-corruption cases; and
      (b)   chosen from amongst officers belonging to the Indian Police
            Service constituted under the All-India Services Act, 1951
            (61 of 1951)                                                      B

            for being considered for appointment as the Director.”
       8. This Court in C.A. No.4303/2002 has clarified that as regards
seniority mentioned in section 4A of the Delhi Special Police Establishment
Act, 1946, ordinarily all the IPS officers of the seniormost four batches     C
in the service on the date of retirement of CBI Director, irrespective of
their empanelment, shall be eligible for consideration for appointment to
the post of Director, CBI.
       9. Challenge has been made to the appointment of Mr. Nageshwar
Rao as interim Director of CBI on the ground that on 23.10.2018, 2            D
separate orders were issued by the Central Vigilance Commission and
the Govt. of India. The then Director of CBI Mr. Alok Verma was divested
of his powers and vide another order issued by the Government of India
Mr. Nageshwar Rao was made Director, CBI as an interim measure.
The appointment of Mr. Nageshwar Rao as interim Director was not
recommended by the selection committee. The Government bypassed               E
the High Powered Selection Committee and in complete contravention
of the established procedure unilaterally made the interim appointment.
The order dated 23.10.2018 regarding the appointment of Mr. Nageshwar
Rao was challenged in this Court in W.P. [C] No.1315/2018. Vide
judgment dated 8.1.2019 this Court quashed the order regarding the            F
appointment of Mr. Nageshwar Rao and relating to Mr. Alok Verma this
Court observed :
      “37. There is yet another issue of significance that arises from
      the weighty arguments advances in the course of the long debate
      that has taken place. This is with regard to the application of
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      Section 14, 15 and 16 of the General Clauses Act, 1897 so as to
      confer power in the Central Government to pass the impugned
      orders including the order of appointment of an acting Director of
      the CBI. The preceding discussions and our views on the true

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1072                 SUPREME COURT REPORTS                    [2019] 3 S.C.R.


 A           and correct meaning of the provisions contained in Sections 4A &
             4B of the DSPE Act leaves us convinced that the aforesaid
             provisions of the General Clauses Act will have no application to
             the present case in view of the clear and apparent intention to the
             contrary that unequivocally flows from the aforesaid provisions
             of the DSPE Act.
 B
             10. In Writ Petition (C) No.1315 of 2018, this Court granted the
       following reliefs:
                     “39. Consequently, in the light of our views as expressed
                     above we set aside the following orders dated 23rd October
 C                   2018.
             (i)     of the CVC divesting the powers, functions, duties,
                     supervisory role etc. of Shri Alok Kumar Verma as Director,
                     CBI.
             (ii)    of the Government of India, Ministry of Personnel, Public
 D                   Grievances and Pensions, Department of Personnel &
                     Training divesting Shri Alok Kumar Verma, Director, CBI
                     of his functions, powers, duties and supervisory role with
                     immediate effect and until further orders.
             (iii)   of the Government of India, Ministry of Personnel, Public
 E                   Grievances and Pensions, Department of Personnel &
                     Training by which one Shri M. Nageshwar Rao, IPS, Joint
                     Director, CBI has been asked to look after the duties and
                     functions of Director, CBI with immediate effect.”
              It is averred in the petition that the appointment of Mr.Nageshwar
 F     Rao as interim CBI Director was not made on the recommendations of
       the High Powered Selection Committee. The committee was completely
       bypassed and had no role in the appointment of Mr. Nageshwar Rao
       thereby rendering the appointment as illegal as it is in violation of the
       procedure for appointment of Director, CBI. The order dated 10.1.2019
       states that the appointments committee of the Cabinet has approved the
 G
       appointment of Mr. Nageshwar Rao “as per the earlier arrangement”.
       As the said arrangement had been quashed by this Court as it was made
       in violation of procedure for CBI Director as defined in the DSPE Act,
       Government still invoked its earlier order which stood quashed to once

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    COMMON CAUSE & ANR. v. UNION OF INDIA & ANR.                              1073
                [ARUN MISHRA, J.]

again make appointment of CBI Director, even though it is not the             A
competent authority and does not have any authority to make appointment,
without following the due procedure laid down in the DSPE Act. The
recommendation of High Powered Selection Committee was necessary,
thus, the Government has acted completely in an arbitrary manner and
in contravention of DSPE Act to appoint Mr. Nageshwar Rao.
                                                                              B
      11. It is further submitted that there is a lack of transparency in
the appointment of CBI Director. This Court has given various directions
to ensure transparency in the process of shortlisting, selection and
appointment of functionaries of various independent bodies like the Central
Vigilance Commission and Information Commissions to prevent the
appointment process being undermined behind a cloak of secrecy.               C

       12. It is further averred that this Court in Anjali Bhardwaj &
Ors. v. Union of India vide its order dated 13.12.2018 directed the
Central Government to proactively disclose the details of shortlisted
candidates and the criteria followed. Transparency has to be maintained
as observed in Union of India v. Namit Sharma (2013) 10 SCC 359.              D
Reliance has also been placed on Centre for PIL & Anr. v. Union of
India & Anr. — W.P. [C] Nos.348 & 355/2010. So far as the
appointment of Director CBI is concerned, the Government of India has
failed to follow proper procedure for selection and appointment. In
December 2018 as reported by the media the Government initiated the           E
process of appointment of Director, CBI as the tenure of Mr. Alok Verma
was set to finish on 31.1.2019. Petitioner No.2 filed applications under
the RTI Act seeking information about meetings of the Selection
Committee, including the date of the meetings, copy of the agenda of
meetings, copy of Minutes of meetings, details of the persons who attended
each meeting, details of the procedure adopted by the Government to           F
shortlist candidates for consideration by the Selection Committee etc.
but no such information had been disclosed. No such copy of shortlisted
candidate was provided. Government has responded summarising the
directions of this Court in C.A. No.4303/2002 regarding clarification of
seniority amongst all the IPS officers of senior-most 4 batches in service    G
on the date of retirement of the Director, CBI which were needed to be
considered for filling up the post and giving information about the
composition of the Selection Committee under the DSPE Act. Request
dated 19.12.2018 (P5) has been placed on record. On 9.1.2019 prayer

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1074                 SUPREME COURT REPORTS                     [2019] 3 S.C.R.


 A     was made to the Prime Minister and the Leader of the largest party in
       Opposition to initiate the process for appointment of regular CBI Director
       hence the petition has been filed.
              13. After several recusals by different Benches, ultimately, the
       case was taken up on 1.2.2019 by this Court on which date the arguments
 B     were heard at some length. It was pointed out by Mr. K.K. Venugopal,
       learned Attorney General for India that High Powered Committee was
       scheduled to meet on the same day in connection with the appointment
       of Director of CBI. The case was adjourned to 6.2.2019. However,
       during hearing on 1.2.2019, the Minutes of the High Powered Selection
       Committee were placed before the court and it was made clear by the
 C     Attorney General for India that the said Committee by majority has
       decided to authorise Government of India to appoint an interim Director
       while passing a resolution and the counsel for the petitioner was told by
       the Court of such resolution having been passed by the Committee. On
       that, he had conceded that the ground that Committee under Section 4A
 D     has not authorised appointment does not survive. Following is the operative
       part of the resolution dated 9th /10th January, 2019:
              “(i) Shri Alok Kumar Verma be transferred from the post of
             Director, CBI and given a suitable assignment for the residual
             period of his present term ending on 31.01.2019.
 E             (ii) the Central Government may post a suitable officer to look
             after the duties of the Director, CBI till the appointment of a new
             Director, CBI.”
              14. It is apparent from the decision of the committee under Section
       4A that the Government was authorised to post a suitable officer as
 F     interim Director due to the vacancy caused by shifting of Mr. Alok Verma.
       Thus, the submission raised in the petition on behalf of the petitioners
       that the HPSC has not authorised the appointment of interim Director is
       totally misconceived and petitioners have failed to verify the aforesaid
       facts and the petition has been filed in undue haste without verifying the
 G     fact whether the appointment has been authorised by the Committee for
       appointment of Director constituted under section 4A of the DSPE Act.
              15. Unfortunately after what transpired in the court on 1.2.2019
       certain tweets were made by learned counsel appearing on behalf of

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   COMMON CAUSE & ANR. v. UNION OF INDIA & ANR.                             1075
               [ARUN MISHRA, J.]

Common Cause and another with respect to which the Attorney General         A
has filed contempt petition as well as the Union of India. It was tweeted
that the Minutes of the said meeting had been forged, the Court was
misled and there had been no authorisation by the Committee constituted
under section 4A about appointment of interim Director. As to the tweets
made, the contempt petitions have been filed in which notice has been
                                                                            B
issued. Effect of the tweets during the pendency of the writ petition is
the subject matter of the contempt petition and the same is to be
considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as such we
refrain to comment in the petition on the submission as to tweets.
       16. It is clear from the resolution passed by the Committee on 9/
10th January, 2019 that the appointment of interim Director had been        C
authorised by the Committee under section 4A. Thus, it cannot be said
to be unauthorised and illegal in any manner whatsoever. The submission
raised that the Selection Committee had not authorised the appointment
of interim Director is fallacious on the face of the record and is
misconceived in view of the said resolution. We need not go into the        D
larger question whether in such exigency it was necessary to have such
a resolution for the appointment of Interim Director by Selection
Committee as that does not arise for decision in this case as Committee
has passed the aforesaid resolution.
      17. With respect to RTI application that was filed by petitioner      E
No.2, it had been replied on 19.12.2018 as follows :
       “Please refer to your online RTI application bearing registration
      No. DOP&T/R/2018/56336 dated 5.12.2018 information under
      RTI Act, 2005.
      2. It is informed that as per this Department’s Executive Order       F
      No.230/14/99-DSPE dated 8.7.2004 issued in pursuance of
      Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA
      No. 4303/2002, all the IPS officers of the senior most 4 batches in
      service on the date of retirement of the (incumbent) Director,
      CBI are needed to be considered for selection to the post of          G
      Director, CBI. It is further informed that as per Section 4(A)(1)
      of the DSPE Act, 1946, as amended by the Lokpal and Lokayuktas
      Act, 2013 (No.1 of 2014) (copy enclosed), the Central Government
      appoints the Director, CBI on the recommendation of the

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1076                 SUPREME COURT REPORTS                        [2019] 3 S.C.R.


 A            Committee consisting of members as prescribed for the purpose
              under the ibid section.
              3. As per Section 19 of RTI Act, 2005, an appeal against the
              above decision would lie before the 1st Appellate Authority Ms.
              Ashwini Dattatraya Thakre, Deputy Secretary (AVD-II), North
 B            Block, New Delhi within 30 days of receipt of this letter.”
              18. Petitioner had filed yet another application on 25.12.2018 in
       which it was prayed that what was the process being adopted by the
       Government to shortlist of the candidates, a copy of shortlisting prepared
       be disclosed, following reply was sent on 2.1.2019 :
 C             “Please refer to your online RTI application bearing registration
              No. DOP&T/R/2018/56394 & DOP&T/R/2018/56397 dated
              25.12.2018 information under RTI Act, 2005.
              2. It is informed that as per this Department’s Executive Order
              No.230/14/99-DSPE dated 8.7.2004 issued in pursuance of
 D            Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA
              No. 4303/2002, amongst all the IPS officers of the senior most 4
              batches in service on the date of retirement of the (incumbent)
              Director, CBI are needed to be considered for filling up the post
              of new Director, CBI. The process of selection of new Director
 E            in CBI has not attained finality.
              3. As per Section 19 of RTI Act, 2005, an appeal against the
              above decision would lie before the 1st Appellate Authority Ms.
              Ashwini Dattatraya Thakre, Deputy Secretary (AVD-II), North
              Block, New Delhi within 30 days of receipt of this letter.”
 F            19. Petitioner No.2 was advised by the aforesaid communication
       in case she was aggrieved, to take recourse to appeal before the appellate
       authority under the RTI Act. It appears that the petitioner has not filed
       any appeal/s. In view of letters, we find no ground to interfere in the
       matter on the said ground too.
 G            20. On the one hand the petitioner asked on 10.1.2019 for an
       appointment of regular Director and that meeting be convened at the
       earliest to appoint regular Director. We find that since the regular Director
       has been appointed the main prayer of the petitioner stands satisfied and
       there is absolutely no justification to continue with this writ petition in the
       aforesaid circumstances. In case the due process has not been followed
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    COMMON CAUSE & ANR. v. UNION OF INDIA & ANR.                                1077
                [ARUN MISHRA, J.]

in the appointment, it is always open to any incumbent, if so advised, to       A
question the appointment in accordance with law but not in the routine
manner and undue haste as shown in the petition.
       21. Accordingly, we find no ground to interfere with this writ
petition and the same is hereby dismissed. Parties are left to bear their
own costs as incurred.                                                          B

Kalpana K. Tripathy                                  Writ petition dismissed.




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