COMMON CAUSEversusUNION OF INDIA AND OTHERS

                            [2017] 1 l S.C.R. 154



A                            COMMON CAUSE
                                      v.
                     UNION OF INDIA AND OTHERS
                   (Writ Petition (Civil) No. 1088of2017)
B                          NOVEMBER 28, 2017
       [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
            Delhi Special Police Establishment Act. I 946 - s.4C -
    Appointment of respondent no.2 as Special Director of CBI -
    Challenged on the ground that no decision was taken by Selection
c   Committee in its meeting regarding appointment of respondent no.2
    on the post of Special Director of CBI and, therefore, order of
    appointment was illegal - Held: s.4C provides for procedure for
    appointment of Superintendent of Police - s.4C envisages that the
    appointment on the post of Superintendent of Police and above has
D   to be made by the Selection Committee in consultation with the
    Director. CBI - There cannot be any doubt that ifthe statute provides
    for consultation with any person before making recommendation
    for appointment to any post, consultation with that person has to
    be made - The question of giving primacy to the opinion expressed
    by the person with whom the consultation has 10 be made depends
E
    upon various factors - If there is no Selection Committee and the
    appointing authority is required to consult with some other
     Constitutional/Statutory authority then the question of giving
    primacy to the opinion expressed by the person with whom the
     consultation is to be made exists - However. in cases, where a
F   Selection Commillee has been constituted which consists of high
     officials and consultation has to be made with another person of
     the Department for which recommendation for appointme/1/ is to be
     made, in 1hat eve/I/, the consultation is only a process of discussion
     which has lo be taken into consideration while making
     recommendation by the Selection Committee - It cannot be said to
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    have a primacy - In the Minutes of the Meeting of the Selection
     Cammi/lee held on 21.I0.2017. the Selection Commillee had
    discussed the note submitted by the Director, CBI and also discussed
    the same with him - The Minllles show that the Directo1; CBI had
    furnished a secret/confidential letter enclosing an unsigned note
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                                     154
     COMMON CAUSE v. UNION OF INDIA AND OTHERS                             155


 referring to respondent no.2 - The Committee had considered the           A
  note and the matter was also discussed with the Director, CBI - The
  Committee found that there were no findings in the papers that the
 person mentioned therein is the same person under consideration
 for appointment and there is nothing about the veracity of the
 contents of the document - The Committee further found the fact           B
  that the CBI_ itse(f moved the proposal on 06.07.2017 categorically
 mentioning that respondent no.2 is suitable to hold the post ofSpecial
 Director, CBI - The Committee also held that no further verified
  material has been brought on record and the Committee decided to
 recommend the name of respondent no.2 for appointment as Special
  Director, CBI - The Committee has also kept in view the fact that        C
  the Vigilance Commission does not take cognizance of complaints
  received just on the verge of appointments or promotions unless
  they are proven misconducts - The decision taken by the Selection
  Committee was unanimous - Once there is consultation, the content
  of that consultation is beyond the scope of judicial review though       D
  lack of effective consultation could fall within the scope ofjudicial
  review - Further, even in the FIR filed by the CBI, the name of
  respondent no.2 was not mentioned at ail - Thus, lodging of FIR
  will not come in the way of considering respondent no.2 for the
  post of Special Director.. after taking into consideration his service
  record and work and experience - The Minutes of the Meeting              E
  (MoM) of the Selection Committee shows that the news items reported
  in the print and electronic media that no decision was taken with
  respect to the appointment on the post of Special Director, CBI in
  the meeting of the Selection Committee held on 21.10.2017 are
  factual(v incorrect - Likewise, the statement of the Professor of the
   University of London reported in the Indian Express appears to be       F
  based on the newspaper reports which have been foiind to be
·factually incorrect, and therefore, it has no substance -Appointment
  of Respondent No. 2 to the post of Special Director, CBI does not
  suffer from any illegality.
       Mahesh Chandra Gupta v. Union of India and Others                   G
       (2009) 8 SCC 273 : [2009) 10 SCR 921 - relied on.
       Vineet Narain and Others v. Union of India and Another
       (1998) 1 SCC 226: [1997) 6 Suppl. SCR 595; Supreme
       Court Advocates-on-Record Association and Others v.
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156            SUPREME COURT REPORTS                         (20 l 7] 11 S.C.R.


A           Union of India (1993) 4 SCC 441 : (1993) 2 Suppl.
            SCR 6591 Centre for PIL and Another v. Union of India
            and A11vlher (2011) 4 SCC 1 : (20111 4 SCR 445 -
            referred to.
                                 Case Law Reference
B
      [1997) 6 Snppl. SCR 595          referred to               Para3
      (19931 2 Suppl. SCR 659          referred to               Para8
      [2011] 4 SCR 445                 referred to               Para9
C     [2009) 10 SCR 921                relied on                 Para 17
            CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
      1088 of2017.
            Under Aiticle 32 of the Constitution of India.
D          Prashant Bhushan, Ms. Neha Rathi, Amiy Shukla, Pranav
      Sachdeva, Shakti V. Sharma, Advs. for the Petitioner.
             K. K. Venugopal, AG, Tushar Mehta, ASG, R. Balasubramanian,
      Ms. Aarti Sharma, Santosh Kr. Vishwakarma, S. S. Shamshery, R. Bala,
      Rajat Nair, M. K. Maroria, Saurab Shamsheri, Ms. Tatini Basu, Advs.
E     for the Respondents.
            The Order of the Court was delivered by
          R. K. AGRAWAL, J. I. By means of the present public interest
  litigation (PIL ), the petitioner, Common Cause, a Registered Society,
  through its President Shri Kamal Kant Jaswal, questions the validity of
F the order dated 22.10.2017 issued by Secretariat of the Appointments
  Committee of the Cabinet, Department ofPersonnel and Training (DoPT)
  appointing Shri Rakesh Asthana-Respondent No. 2 herein as the Special
  Director, Central Bureau oflnvestigation (CBI) on the ground that the
  appointment has been made illegally, arbitrarily, ma/afide and in violation
G ofthe principles-Of impeccable and institutional integrity.
             2. We have heard learned Shri Prashant Bhushan, leamed counsel
      for the petitioner and Mr. K.K. Venugopal, learned Attorney General
      appearing for the Union oflndia.

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      COMMON CAUSE v. UNION OF INDIA AND OTHERS                                 157



3. Shri Prashant Bhushan, learned counsel contended· that this Court in         A
Vineet Narain and Others vs. Union of India and Another (1998) 1
SCC 226 has laid down the procedure for appointment of Director, CBI
which is as under:-
       ."58. 6. Recommendations for appointment of the Director, CBI
       shall be made by a Committee headed by the Central Vigilance             B
        Commissioner with the Home Secretary and Secretary
        (Personnel) as· members. The views of the incumbent Director
        shall be considered by the Committee for making the best choice.
        The Committee shall draw up a panel ofIPS officers on the basis
        of their seniority, integrity, experience in investigation and anti-
        corruption work. The final selection shall be made by the               C
        Appointments Committee of the Cabinet (ACC) from the panel
        recommended by the Selection Committee. If none ,among the
        panel is found suitable, the reasons thereof shall be recorded and
        the Committee asked to draw up a fresh panel."
         4. Learned counsel further contended that the CBI has been             D
  established under the Delhi Special Police Establishment Act, 1946 (in
  short 'the DSPE Act') and to give statutory effects to the directions
  given in Vi11eet Narai11 (supra), the DSPE Act was amended in 2003
  vide Central Vigilance Commission Act, 2003 to provide that the Director,
  CBfand officers above the post of Superintendent of.Police shall be           E
  appointed by the Central Government on the recommendations of the
  Central Vigilance Commissioner, the, Vigilance Commissioners and two
· Secretaries to the Government of India.
        5. The DSPE Act was further amended by the Lokpal and
 Lokayuktas Act, 2013 to provide for a mech~ism for the appointment             F
 of Director"CBI as well as for the appointment of officers to the post
 above the Superintendent ofPolice. As in the present petition, the selection
 and appointment of the Special Director, CBI is under challenge and not
 the selection and appointment of the Director, CBI, only Section 4C, <IS
 substituted by the Act of2013, has to be considered. Section 4C of the
 DSPE Act provides for the procedure for appointment of Superintendent          G
 of Police and above reads as under:-
        "4C. Appointment for posts of Superintendent of Police and
        above extension and curtailment of their tenure, etc.-

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158              SUPREME COURT REPORTS                       [2017] I I S.C.R.


A           (I) The Central Government shall appoint officers to the posts of
                the level of Superintendent of Police and above except
                Director, and also recommend the extension or curtailment
                of the tenure of such officers in the Delhi Special Police
                Establishment, on the recommendation of a Committee
                consisting of:-
B
            a)    The Central Vigilance Commissioner            - Chairperson
            b)    Vigilance Commissioners                           Members
            c) Secretary to the Government of India in charge of the Ministry
               of Home                                         Member, and
c
            d) Secretary to the Government of India in charge of the
               Department of Personnel                      Member
                 Provided that the Committee shall consult the Director before
                 submitting its recommendation to the Central Government.
D           (2) On receipt of the recommendation under sub-Section ( 1), the
                Central Government shall pass such orders as it thinks fit to
                give effect to the said recommendation."
             6. Thus,, the appointment on the post of Superintendent of Police
      and above has to be made by the Selection Committee in consultation
E     with the Director, CBI. Shri Prashant Bhushan, relying upon the news
      reports dated22.I0.2017 in the India Today and reported on23.I0.2017
      in 'The Pioneer' and the 'The Hindu' as also the newspaper report
      dated 24. I 0.2017 published in 'The Pioneer' submitted that no decision
      was taken by the Selection Committee in its meeting held on 21.10.2017
      regarding the appointment of Shri Rakesh Asthana- Respondent No. 2
F
      on the post of Special Director, CBI, and therefore, the order dated
      22.10.2017 issued by the Appointments Committee of the Cabinet (ACC)
      is wholly illegal and contrary to law.
             7. Learned counsel for the petitioner, relying upon the diaries and
      other papers seized in the raid conducted in the premises of Sterling
G     Biotcch and Sandesara Group of Companies where on some pages of
      the diary, the name of Shri Rakesh Asthana - Respondent No. 2 herein
      finds place as also in the FIR dated 30.08.2017 filed by the CBI, in the
      column of details of known/suspected/unknown accused with full
      particulars, a mention has been made for "other unknown public servant
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     COMMON CAUSE v. UNION OF INDIA AND OTHERS                                 159
                [R. K. AGRAWAL, J.]

 and private persons", contended that in any event Respondent No. 2            A
 could not have been recommended for appointment as Special Director,
 CBI as the matter is under investigation.
         8. He relied upon a 9-J udges Bench decision of this Court in
  Snp1·e111e Court Advocates-on-Record Association ·a11d Others vs.
  Unio11 ofllldia ( 1993) 4 SCC 441 to submit that consultation is to be       B
· effective and primacy has to be given to the views of the persons
  consulted.
       9. Learned counsel for the petitioner further relied upon a decision
of this Court in Centre for PIL and A11other vs. U11ion of l11dia aml
Another (2011) 4 SCC 1 in support of his submission that institution is        C
more important than an individual and the decision to recommend has
got to be an informed decision keeping in mind that the institution has to
perform an impo1tant function.
        10. Learned counsel further contended that the son of Respondent
 No. 2, viz., AnkushAsthana has worked for 2 years, 11 months with Ml          D
 s Sterling Bio tech as Assistant Manager (papers and diaries of which
 Company had been seized) and the cocktail party of the wedding of the
 daughter of Respondent No. 2 was held in the farm house of Mis
 Sandesaran Group of Companies. He also relied upon a news reported
 in the Indian Express dated 21.11.201 7 wherein a Professor of the
 University of London had expressed donbt and concern about the working        E
 of the Vigilance Commission concerning CBI's Additional Director's
 recent effort to win promotion to bring home the point that the appointment
 of Shri Rakesh Asthana - Respondellt No. 2 as Special Director could
 not have been made at all.
        11. Learned Attorney General for India placed before us the            F
 Minutes of the Selection Committee Meeting held on 21.10.2017 in the
 Office of the Central Vigilance Commissioner and submitted that the
 Selection Committee had considered the confidential letter dated
 21.10.2017 submitted by the Director, CBI and had discussed the same
 in the meeting. The Selection Committee had given good reasons for            G
 not accepting the contents of the letter submitted by the Director, CBI
 and recommended Shri Rakesh Asthana for appointment as Special
 Director. CBI. He further submitted that the CBI itself had moved the
 proposal on 06.07.2017 for appointment of Shri Rakcsh Asthana as a
 suitable candidate to hold the post of Special Director, CBI. According
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160             SUPREME COURT REPORTS                        (2017] I l S.C.R.


A     to him, Shri Rakesh Asthana was holding the post ofAdditional Director,
      CBI before being appointed as Special Director, CBI and had been
      supervising functions of l I Zones, viz., STF Zone, MOMA Zone, Delhi
      Zone, Lucknow Zone, Patna Zone, EoZ-11 Zone, Mumbai, EoZ-III Zone,
      Kolkata Zone, North East Zone, Chennai Zone & Chandigarh Zone. In
      the above capacity, he is supervising the investigation/trial of a number
B
      ofscan1 cases includingAugusta Westland Case, Ambulance Scam Case,
      Kingfisher Cases, Hassan Ali Khan Case, Mo in Qureshi Case, J.P. Singh
      Bribery Case, Paramount Airways Case, Coal Scam Cases, AHO and
      Bitumen Scani Cases ofBihar and Jharkhand. He is also supervising a
      number of Special Crime cases which were registered on the orders of
c     Courts or on the request of State Governments besides cases against
      Ministers/officials of Delhi Government. He thus submitted that no fault
      can be found in the recommendations made by the Selection Committee.
      Respondent No. l had rightly accepted the recommendation for
      appointment of Shri Rakesh Asthana as Special Director, CBI.
D            12. We have given .our thoughtful consideration to the various
      pleas raised by learned counsel for the parties.
             13. There cannot be any doubt that if the Statute provides for
      consultation with any person before making recommendation for
      appointment to any post, consultation with that person has to be made.
E     The question of giving primacy to the opinion expressed by the person
      with whom the consultation has to be made depends upon various factors.
      Ifthere is no Selection Committee and the appointing authority is required
      to consult with some other Constitutional/Statutory authority then the
      question of giving primacy to the opinion expressed by the person with
      whom the consultation is to be made exists.
F
             14. However, in cases, where a Selection Committee has been
      constituted which consists of high officials and consultation has to be
      made with another person of the Department for which recommendation
      for appointment is to be made, in that event, the consultation is only a
      process of discussion which has to be taken into consideration while
G     making recommendation by the Selection Committee. It cannot be said
      to have a primacy.
            15. In the Minutes of the Meeting of the Selection Committee
      held on 21.10.2017, the Selection Committee had discussed the note
      submitted by the Director, CBI and also discussed the same with him as
H     would be clear from the Minutes reproduced hcreinbelow:-
    COMMON CAUSE v. UNION OF INDIA AND OTHERS                                 161
               [R. K. AGRAWAL, J.]

      "Item No. II: Induction of IPS officers as Special Director,            ~.
      CBI.
      The Agenda papers have been considered. · The Director
      CBI has furnished a Secret/Confidential letter ID No. 30/
      2017/VC(CVC) 15211552 dated 21.10.2017 in the meeting,
      enclosing an unsigned note on Sterling Biotcch Ltd. and B
      related entities. It is mentioned by the Director, CBI that
      the entries in the· note refer, inter alia, to one Shri Rakesh
      Asthana. The Committee considered the note and the
      matter was also discussed with the Director, CBI. Keeping
      in view that there Is no finding in these papers that the
      person mentioned therein is the same person under. c
      consideration for appointment and there is nothing about
      the veracity of the contents of the document and the further
      fact that the CBI itself moved the present proposal on
      06.07.2017 wherein it has been categorically mentioned that
      ShriRakesh Asthana JPS (GJ:1984) is suitable to hold the D
      post of Special Director, CBI and no further verified material
      has been brought on record, the Committee decided to
      recommend him for appointment as Special Director, CBI.
      The Committee has also kept in view the fact that the
      Vigilance Commission docs not take cognizance of
      complaints received just on the verge of appointments or · E
      promotions unless they arc proved misconducts. The
      Committee has also noted the decisions of the Courts in
       respect of such documents."
       16. From a perusal of the aforesaid Minutes, we find as under:-
                                                                              F
       (i) The Director, CBI had furnished a secret/confidential letter
dated 21.10.2017 enclosing an unsigned note on.Mis Sterling Bio)ech
Ltd. and related entities and that the entries in the note referred, inter
alia, to one Shri Rakesh Asthana.
       (ii) The Committee had considered the note and the matter was          G
also discussed with the Directo_r, CBI.
       (iii) The Committee found that there are no findings in the papers .
that the person mentioned therein is the same person under consideration
for appointment and there is nothing about the veracity of the contents
of the document.
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162             SUPREME COURT REPORTS                           [2017] 11 S.C.R.


A            (iv) The Committee further foWld the fact that the CBI itself moved
      the present proposal on 06.07.2017 categorically mentioning that Shri
      Rakesh Asthana IPS (GJ:J984) is suitable to hold the post of Special
      Director, CBI.
            (v) The Committee also held that no further verified material has
B     been brought on record and the Committee decided to recommend the
      name ofShri RakeshAsthana for appointment as Special Director, CBI.
            (vi) The Committee has also kept in view the fact that the Vigilance
      Commission does not take cognizance ofcomplaints received just on the
      verge of appointments or promotions unless they are proven misconducts.
c           (vii) The decision taken by the Selection Committee was
      Wlallmous.
              17. Further, this Court, in Mahesh Clrandra Gupta vs. Union of
      India and Others (2009) 8 SCC 273 has highlighted the fact that there
      is vital difference between judicial review and merit review. Once there
D     is consultation. the content of that consultation is beyond the scope of
      judicial review though lack of effective consultation could fall within the
      scope ofjudicial review.
             18. We cannot question the decision taken by the Selection
      Committee \Vhich is Wlanimous and before taking the decision, the
E     Director, CBI, had participated in the discussions and it is based on relevant
      materials and considerations. Further, even in the FIR filed by the CBI,
      the name of Shri Rakesh Asthana has not been mentioned at alt. Thus,
      lodging of FIR will not come in the way of considering Shri Rakesh
      Asthana for the post of Special Director, after taking into consideration
      his service record and work and experience. From the Minutes of the
F
      Meeting (MoM) of the Selection Committee, we find that the news items
      reported in the print and electronic media that no decision was taken
      with respect to the appointment on the post of Special Director, CBI in
      the meeting of the Selection Committee held on 21.10.2017 are factually
      incorrect. Likewise, the statement of the Professor of the University of
G     London reported in the Indian Express appears to be based on the
      newspaper reports which have been found to be factually incorrect, and
      therefore, it has no substance.
            19. Jn view of the foregoing discussion, we are of the considered
      opinion that the appointment ofShri Rakcsh Asthana- Respondent No. 2
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     COMMON CAUSE v. UNION OF INDIA AND OTHERS                               163
                [R. K. AGRAWAL, J.]

herein to the post of Special Director, CBI docs not suffer from any         A
illegality. The writ petition fails and is dismissed.


Devika Gujral                                     Writ Petition dismissed.