Holding

The 1996 Recruitment Rules are inconsistent with the Supreme Court’s Vineet Narain directions and are superseded by the Central Vigilance Commission Act, 2003; consequently, no mandamus can be issued under Article 136 to appoint the retired respondent.

Summary

The Union of India appealed against the Karnataka High Court’s affirmation of a Central Administrative Tribunal order that quashed the appointment of R.K. Raghavan as Director of the CBI and directed a fresh selection process. The first respondent, C. Dinakar, a senior IPS officer who had retired, claimed that the appointment ignored his seniority and violated the Supreme Court’s directions in Vineet Narain. The Supreme Court held that the CBI (Senior Police Posts) Recruitment Rules, 1996 are inconsistent with the Vineet Narain directions and have been superseded by the Central Vigilance Commission Act, 2003, which amended the Delhi Special Police Establishment Act by inserting Section 4A. Consequently, the Rules cannot survive, and no relief can be granted to the retired respondent; the Court also ruled it cannot issue a mandamus under Article 136 to appoint him retrospectively. The Court clarified that, for seniority, the four most senior IPS batches at the time of the incumbent Director’s retirement are eligible, irrespective of empanelment, and disposed of the appeal.

Issues considered

The consistency of the CBI (Senior Police Posts) Recruitment Rules, 1996 with the Supreme Court’s directions in Vineet Narain and subsequent parliamentary legislation.
Whether the Supreme Court, exercising jurisdiction under Article 136, can issue a writ of mandamus directing the appointment of a retired officer as Director of the CBI.
The validity of the Central Administrative Tribunal and Karnataka High Court orders quashing the appointment of R.K. Raghavan.
The interpretation of Section 4A of the Delhi Special Police Establishment Act, 1946 regarding seniority eligibility for the post of Director, CBI.

Legislation cited

Central Vigilance Commission Act, 2003s. 26
Constitution of Indias. Article 136, s. Article 141, s. Article 142, s. Article 144, s. Article 32
Delhi Special Police Establishment Act, 1946s. 4, s. 4A

Subjects

CBI Director appointmentseniorityrecruitment rulesVineet Narain directionsArticle 136mandamusCentral Vigilance Commission ActDelhi Special Police Establishment ActCentral Administrative Tribunalretirement benefits

Judgment

A UNION OF INDIA AND ANR ..
v.
C. DINAKAR, l.P.S. AND ORS.

APRIL 20, 2004

B (V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Service Law:

Delhi Special Police Establishment Act, 1946-Section 4A (as amended
C by Section 26 of Central Vigilance Commission Act, 2003)-C.B.J. (Senior
Police Posts) Recruitment Rules, 1996-Appointment-Post ofDirector, CB/-
Appointment of junior officer ignoring the senior-Appointment questioned
as violative of directions given by Supreme Court in Vineet Narain's case
and as approved by Parliamentary Act-Tribunal held that the appointment
D not in accordance with the directions-On appeal held: Appointment not
justified-Procedure in the Rules inconsistent with the directions-Directions
having been approved by Parliamentary Act and the same having laid down
the procedure for appointment, the Rules would not survive-However, no
relief granted since the aggrieved as well as the appointee have retired

E Constitution of India, 1950--Artic/e 136-Scope of the jurisdiction--
Held, in exercise of the jurisdiction, Court cannot issue a writ of or in the
nature of mandamus.

A panel was prepared for promotion to the post of Director, CBI.
Respondent No.1 though was the senior-most officer, was not included in the
F panel Respondent No.6 was appointed to the post. Respondent No.1 chaUenged
the appointment in Central Administrative Tribunal alleging that the
appointment was done ignoring his case and that the procedure of the same
was in violation of directions of Supreme Court for appointment of Director,
CBI in Vineet Narain and Ors. v. Union ofIndia and Anr., [1998) 1 SCC 226.
G Tribunal allowed the application quashing th~ appointment and directing
initiation of fresh process of selection in the light of the Court's direction. In
writ petition, High Court, by majority held against respondent No. 1.

In appeal to this Court appellant-State contended that C.B.I. (Senior
Police Posts) Recruitment Rules, 1996 framed under constitutional provision,
II 470
U.0.1. v. C. DINAKAR 471
having not been declared invalid, the provisions thereof were required to be A
complied with and the same can co-exist with the directions of the Court, hence
both should be given effect to; that the directions have been approved by
legislature by promulgation of Central Vigilance Commission Ordinance,
1998 (later enacted by Parliament as Central Vigilance Commission Act,
2003) amending Delhi Special Police Establishment Act, 1946 by substituting B
Section 4 and inserting Section 4A.

Respondent No. I contended that despite the fact that he had retired from
service, the Court should direct that he be promoted to the post of Director, '
CBI with retrospective effect so that he gets consequential retiral benefits.

Disposing of the appeals, the Court
c
HELD: I.I. The procedu~~ laid down in the C.B.I. (Senior Police Posts)
Recruitment Rules, 1996 is inconsistent with the directions issued by this
Court in Vineet Narain case. The said directions were issued pending ·
legislation in this behalf by the Parliament Once by reason of a Parliame~tary D
Act, the procedure for appointment of the Director, CBI has been laid down,
the 1996 Rules would not survive. [478-D-F)

Vineet Narain and Ors. v. Union of India and Anr., [1998) I SCC 226,
referred to.
E
1.2. First respondent as also R-6 have retired. Therefore no relief in
favour of the first respondent, as prayed for by him, can be granted as for all
intent and purpose the directions issued by the Tribunal have been rendered '
infructuous. This Court cannot in exercise of its jurisdiction under Article
136 of the Constitution of India, issue a writ of or in the nature of mandamus
directing Union of India to appoint the first respondent as Director, CBI with : F
retrospective effect Moreover, the first respondent was never empanelled and,
therefore, no question for issuing direction as regards to his appointment to
the post of Director could arise. [479-D-F]

2. In the interest of justice, it is clarified as regards seniority of the
otTtcers who are eligible for consideration therefor to the effect that ordinarily G
all the IPS officers of the senior-most four batches in service on the date of'
retirement of CBI Director, irrespective of their empanelment shall be eligible
for consideration for appointment to the post of Director, CBI. The
clarification would not lead the Committee to consider the cases of a large
number of officers unnecessarily and further would act as an insulation to H
472 SUPREME COURT REPORTS (2004) SUPP. l S.C.R.

A th_e possible misuse or arbitrary exercise of the power of the concerned
authority. Therefore, it is directed that as regards seniority rnentioned."in
Section 4A of Delhi Police Establish~ent Act, 1946 ordinarily all the JPS
Officers of the senior-most four batches in the service on the date .of
retirement of CBI Director, irrespectiv,e oftheir empanelment, shall be eligi"ble
B for consideration for appointttteiJt~O-'ftht(>ost of Director, CBI. This directiOn
is in the nature of ~pfa~~tl~n ·to Section 4A of the Act. [479-A-C] .

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4303 of2002.
'
. From the Judgment and Order dated I I. I 0.200 i of the Karnatakil High
C Court in W.P. No. 5765 of200I (S. CAT)
Soli J. Sorabjee, Attomery General, Dhruv Mehta and P. Panneswaran
for the Appellants.

Respondent-In-person

D The Judgment of the Court was delivered by

V.N. KHARE, CJ. Union of India herein is in appeal before us being
aggrieved by and dissatisfied with the judgment and order dated 1 I. I 0.200 I
passed by the Karnataka High Court in Writ Petition No.5765 of200I whereby
E the High Court has affinned the order dated 8.2.200 I passed by the Central
Administrative Tribunal, Bangalore Bench in O.A. No.I020 of I999.

The first respondent herein was a member of the Indian Police Service
(IPS) of I 963 batch. He although was said to be one of the senior-most
officers for the purpose Of consideration orhis claim for promotion to the post
F of Director, Central Bureau oflnvestigation (CBI), ignoring his case, Shri R.K.
Raghavan, Respondent No.6 herein was appointed therein. Questioning the
said appointment as also the procedure adopted by the Committee being
violative of the directions of this Court for appointment of Director, CBI in
Vineet Narain and Ors. v. Uni<in of India Anr., [1998] I SCC 226, the first
respondent filed an original application before the Tribunal.
G
The Committee constituted for the aforementioned purpose was required
to draw a panel of IPS officers on the basis of their seniority, integrity and
experience in investigation and anti-corruption work. Final selection, however,
was to be made by the Appointment Committee of the Cabinet (ACC) from
the panel recommended by the Committee. The name of the first respondent
H herein was admittedly not included in the panel prepared by the appellant
U.0.1. v. C. DINAKAR [KHARE, CJ.) 473
herein for the purpose of consideration of his case for promotion to the post A
of Director, CBI. The panel of IPS officers which was placed before the
Committee for its consideration consisted names of 33 IPS officers, out of
which 17 officers did not have the requisite background or experience in anti-
corruption activities. Out of the remaining 16 officers, a panel of three names
was prepared by the Committee. The first respondent questioned the selection B
process adopted by the Central Government as regard empanelment of the so-
called eligible officers, inter alia, on the ground that the same was contrary
to and inconsistent with the directions of this Court in Vineet Narain 's case
(supra). The stand of the Central Govemmei:it, however, was that such a .
procedure was supplemental to the directions of this Court which had already
been in existence for .appointment to the post of Director of CBI as on the C
date of the judgment thereof, namely, 18.12.1997. The said stand was taken,
purported to ·be relying on or on the basis of doctrine of sub silentio, to
which this Court in Vineet Narain (supra) apparently did not advert.

The question which, inter alia, arose for consideration before the
Central Administrative Tribunal (Tribunal) was as to whether directions issued D
by this Court in Vineet Narain (supra) were required to be complied with
rigidly till such time, the legislature steps in and substitutes the same by an
appropriate legislation.

The Tribunal allowed the original application filed by the first respondent
herein quashing the appointment of the seventh respondent and directing E
initiation of a fresh process of selection in the light of the decision of this
Court in Vineet Narain (supra), holding that statutory rules or executive
instructions pertaining to the post of Director, CBI could not be resorte~
therefor. The judgment and order of the Tribunal came to be questioned by
the appellant herein by filing a writ petition before the Kamataka High Court p
which was marked as Writ Petition No. 5765 of 200 l. The first responderit
herein also filed a writ petition questioning some findings arrived at by the
Tribunal which was marked as Writ Petition No. 6361 of 2001.

The matter came up for hearing before a Division Bench of the High
Court comprising Ashok Bhan, l (as His Lordship then was) and Chidananda G
Ulla!, J. The learned Judges differed in their opinion while delivering an order
dated 8.2.2001. Whereas Bhan, J. held that the appointment of the 6th
Respondent herein as Director of CBJ was in accordance with the rules and
the directions issued by this Court as also Official Memorandum dated
20.5.1998; Ullal, J. held contra. Having regard to the difference of opinion H
474 SUPREME COURT REPORTS [2004] SUPP. I s:c.R.

A between two learned Judges of the Karnataka High Court, the matter ultimately
was placed before a third Judge, by Hon'ble the Chief Justice of Karnataka
High Court. The learned Judge in terms of his judgment dated 11.10.2001
agreed with the view of Justice Ullal although for different reasons.

Mr. Soli J. Sorabjee, learned Attorney General,_ appearing on behalf of.
B the appellants, assailed the impugned majority decision of the High Court,
inter alia, contending that the first respondent herein did not question the
applicability of the C.B.I. (Senior Police Posts) Recruitment Rules, 1996
(hereinafter referred to as 'the 1996 Rules') and filed t1le original application
primarily on the ground that he had not been appointed on extraneous
C reasons, despite his empanelment as Director 9eneral of Police (DGP) at the
Centre, which plea was found to be not correct. The l~arned Attorney General
contended that the 1996 Rules which were framed under Proviso to Article
309 of the Constitution of India specifically provided for the grade from which
promotion/deputation/transfer to the post of Director, CBI was to be made
from amongst the officers who had been approved for appointment as DGP
D under the Government of India and, thus, the observations of the Tribunal
as also the majority decision of the High Court to the effect that the directions
of this Court regulating the appointment of the CBI Director must be construed
as being limited to the subsequent stages of selection from amongst the IPS
Officers who had already been empanelled for the post of DGP at the Centre
E by the concerned Selection Committee is erroneous: According to the learned
Attorney General, the directions of this Court should have been construed
as an additional step in the process of selection of the Director of CBI with
a view to insulate the sensitive post from political interference.

Mr. Sorabjee submitted that the rules framed under the constitutional
F provisions having not been declared invalid, the provisions thereof were
required to be complied with and in any event as the provisions thereof can
co-exist with the directions of this Court in Vineet Narain (supra); both
should be given effect to.

The learned Attorney General also urged that the third Hon'ble Judge
G committed an error in concurring with the opinion of Ullal, J. for additional
' I
reasons that such requirement has been approved by the legislature in the
form of Central Vigilance Commission Ordinance, 1998 which was promulgated
by the President of India amending Delhi Special Police Establishment Act,
1946 by substituting Section 4 and inserting Section 4A therein as thereby
H directions of this Court were mainly sought to be implemented; and as even
U.O.I. v. C. DINAKAR [KHARE, CJ.) 475

in terms thereof the 1996 Rules were not superseded expressly. A
The First Respondent herein who appeared in person had drawn our
attention to the interim orders passed by the High Court as also this Court
and submitted that despite the fact that he had retired from service, this Court
should direct that he be promoted to the post of Director, CBI with retrospectivct
effect so that he may get the consequential retiral benefits. B
Mr. Dinakar urged that this Court in Vineet Narain (supra) ha(,i
highlighted that CBI had not been functioning properly necessitating
constitution of an Independent Review Committee (IRC). Had it been the
intention of this Court in Vineet Narain (supra) that the procedure laid down C
in the 1996 Rules should be followed, it would not have directed that the
matter be considered by an independent committee which was not
contemplated under the 1996 Rules. He furthermore urged that in that view
of the matter, it would not be incorrect to invoke the doctrine of 'sub silentio'
in Vineet Narain (supra).
D
Vineet Narain (supra) arose out of a writ petition filed before this Court
under Article 32 of the Constitution of India as a public interest litigatioµ.
This Court since the initiation of the writ proceedings which took place in
1993 had passed several orders relating to the functioning of the CBI and
other Government agencies, which according to this Court had not carried out
their public duties to investigate the offences disclosed by taking recourse E
to doctrine of continuous mandamus. It was observed :

" ... The constitution and working of the investigating agencies revealed
the lacuna of its inability to perform whenever powerful persQns w~re
involved. For this reason, a close examination of the constitution of
these agencies and their control assumes significance. No doubt, the F
overall control of the agencies and responsibility of their functionipg
has to be in the executive, but then a scheme giving the needed
insulation from extraneous influences even of the controlling executive
is imperative... "

This Court noticed the relevant mies as also the functioning of IRC \:mt G
despite the same considered the need for court's intervention in para 26 and
history of CBI in para 30, the validity of Directive No.4.7(3) of the Single
Directive as also the power of this Court under Articles 32 and 142 of .the
Constitution of India stating : ,.
H

-.
476 SUPREME COURT REPORTS (2004) SUPP. I S.C.R.

A "There are ample powers conferred by Article 32 read with Article
142 to make orders which have the effect of law by virtue of Article
141 and there is mandate to all authorities to act in aid of the orders
of this Court as provided in Article 144 of the Constitution. In a
catena of decisions of this Court, this power has been recognised and ·'
exercised, if need be, by issuing necessary directions to fill the vacuum
B- till such time the legislature steps in to cover the gap or the executive
discharges its role ..."

Noticing that this Court in exercise of its power under Article 32 read
with Article 142 of the Constitution of India had issued guidelines and
C directions in a large number of cases, it was held.that the directions which
were enumerated therein required rigid compliance till such time the legislature
steps in to substitute them by appropriate.legislatiim. The requisite directions
were thereafter issued which are contained in para 58 of the reported judgment.

The High Court in its impugned judgment noticed that the appointment
D to the post Of CBI can be made by way of transfer or deputation from amongst
the officers of IPS who have been approved for appointment as DGP .under
the Government of India as regulated in terms of IPS Rules. The High Court
further noticed that the Central Government issued an official memorandum
after Vineet Narain (supra) which is to the following effect :

E "The Selection Board shall make recommendations/decide matters
strictly in accordance with the relevant rules, policy ~d guidelines
having a bearing on the matter concerned. Recommendations regarding
deviations from established policy, practices and guidelines require to
be specifically brought to the notice of the ACC, giving reasons
therefor. The decisions of the CBI Selection Board which involve
F relaxation of relevant rules, policy and guidelines shall be only
recommendatory."

Taking note of the promulgation of the Ordinance by the President of
India known as 'the Central Vigilance Commission Ordinance, 1998 which
G came into force on or about 25.8.1998, the High Court observed that the
directions of this Court were issued with the express object of providing a
scheme to insulate the investigating agencies from extraneous influences of
the executive, which reveals that this Court had issued directions having
carefully and thoroughly examined the entire structure and mode of functioning
of the CBI and felt need to improve and innovate the procedure and fructify
H the new ideas for betterment of the polity.
U.0.1. v. C. DINAKAR [KHARE, CJ.] 477
It is not in dispute that on the basis of the judgment in Vineet Narain A
(supra) the appellant did intervene by promulgation of the aforementione!i
Ordinance and, thus, a subordinate legislation in the form of the 1996 Rules
would cease to exist as the Ordinance provides for the process of selection
r to the post of Director, CBI.

It is not in dispute that the Parliament had since given its approval to B
the said Ordinance enacting the Central Vigilance Commission Act, 20031
which received the assent of the President of India on 11.9.2003. By reason
of Section 26 of the said Act, the Delhi Special Police Establishment Act, 1946
was amended which is to the following effect :

"26. In the Delhi Special Police Establishment Act, 1946, - c
(a) after section I, the following section shall be inserted, namely :-

"IA. Words and expressions used hereiri and not defined but
defined.in the Central Vigilance Commission Act, 2003, shall have
the me<!Dings, respectively,_ assigned to them in that. Act"; D
(b) for section 4, the following sections shall be substituted, namely:~

"4(1) The superintendence of the Delhi Special Police Establishment
in so far as it relates to investigation of offences alleged to have been
committed under the Prevention of Corruption Act, 1988, shall vest in
the Commission. E
(2) Save as otherwise provided in sub-section (I), the
superintendence of the said police establishment in all other matters
shall vest in the Central Government.

(3) The administration of the said police establishment shall vest F
in an officer appointed in this behalf by the Central Government
(hereinafter referred to as the Director) who shall exercise in respect'
of that police establishment such of the powers exercisable by an
Inspector-General of Police in respect of the police force in a State as
the Centrat Government may specify in this behalf.
G
4A.( 1) The Central Government shall appoint the Director on the
recommendation of the Committee consisting of -

(a) the Central Vigilance Commissioner - Chairperson;

(b) Vigilance Commissioners - Members;
H
478 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A (c) Secretary to the Government of India
in-charge of the Ministry of Home t
Affairs in the Central Government - Member; : ~

(d) Secretary (Coordination and Public
;
Grievances) in the Cabinet
B Secretariat -Member.
(2) While making any recommendation under I sub-section (I), the
Committee shall take into consideration the views. of the outgoing
Director.

(3) The Committee shall recommend a panel of officers
c (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

D for being considered for appointment as the Director."

From the above it is clear that the procedure laid down in the Rules is
inconsistent with the directions issued by this Court in Vineet Narain (supra).
As noticed hrreinbefore, the said directions were issued pending legislation
E in this behalf by the Parliament. Once by reason of a Parliamentary Act, the
.-
procedure for appointment of the Director, CBI has been laid.down, it is idle 1
...
to contend that the 1996 Rules would still survive. The composition C'f the
Committee for the purpose of preparation of panel has been laid down in sub-
section (I) of Section 4A. While making the recommendation by preparing a
panel of officers, the Committee is not only to take into consideration the
F views of the outgoing Director but the same would also be based on clauses
(a) and (b) of sub-section (3) of Section 4A of the Act.

However, it commends to us that if in terms of Section 4A of the Delhi
Special Police Establishment Act, all the eligible JPS officers are required to
be considered, the same may give rise to practical difficulties. It is not in
G dispute that the post of Director, CBI, is considered to be a superior post. It
is a tenure post and on the expiry of the period specified therefor, the officer
may be transferred to any other post or reverted to his own post. Seniority
although is a criteria but merit indisputably would play a decisive role which 1

is required to be determined with other relevant considerations, namely, integrity ;
H and experience in the investigation in anti-corruption cases.
U.0.1. v. C. DINAKAR [KHARE, CJ.] 479
We, therefore, feel that in the interest of justice, a clarification is required A
to be issued as regard seniority of the officers who are eligible for consideration
therefor to the effect that ordinarily all the IPS officers of the senior-most four
batches in service on the date of retirement of CBI Director, irrespective of
their empanelment shall be eligible for consider~tion for appointment to the
post of Director, CBI. The aforementioned clarification, in our considered B
opinion, would not lead the Committee to consider the cases of a large
number of officers unnecessarily and further would act as an insulation to the
possible misuse or arbitrary exercise of the power of the concerned authority.
We, therefore, direct that as regards seniority mentioned in Section 4A of the
Act, ordinarily all the IPS Officers of the senior-most four batches in the
service on the date of retirement of CBI Director, irrespective of their C
empanelment, shall be eligible for consideration for appointment to the post
of Director, CBI. This direction is in the nature of explanation to Section 4A
of the Act. Learned Attorney General consented to the said direction.

Coming to the question as to what relief(s) the first respondent is
entitled to, we find that the first respondent as also Shri Raghavan h.llve D
retired. We are, therefore, of the opinion that no relief in favour of the first
respondent, as prayed for by him, can be granted as for all intent and purpose
the directions issued by the Tribunal have been rendered infructuous. This
Court cannot in exercise of its jurisdiction under Article 136 of the Constitution
oflndia, issue a writ of or in the nature of mandamus directing Union of India E
to appoint the first respondent as Director, CBI with retrospective effect.
Moreover, the first respondent was never empanelled and, therefore, no
question for issuing direction as regards to his appointment to the post of
Director could arise. We, therefore, modify the order and judgment under
appeal to the aforementioned extent.
F
With the aforesaid modification, the appeal stands disposed of. There
shall be no order as to costs.

K.K.T. Appeal disposed of.