{"id":246834,"date":"2011-03-03T00:00:00","date_gmt":"2011-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/centre-for-pil-anr-vs-union-of-india-anr-on-3-march-2011"},"modified":"2018-01-05T10:37:54","modified_gmt":"2018-01-05T05:07:54","slug":"centre-for-pil-anr-vs-union-of-india-anr-on-3-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/centre-for-pil-anr-vs-union-of-india-anr-on-3-march-2011","title":{"rendered":"Centre For Pil & Anr vs Union Of India & Anr on 3 March, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Centre For Pil & Anr vs Union Of India & Anr on 3 March, 2011<\/div>\n
Bench: S.H. Kapadia, K.S. Panicker Radhakrishnan, Swatanter Kumar<\/div>\n
                                                                                       1\n\n\n                                                            REPORTABLE\n\n                  IN THE SUPREME COURT OF INDIA\n\n                       CIVIL ORIGINAL JURISDICTION\n\n                  WRIT PETITION (C) No. 348 OF 2010\n\n\n\nCentre for PIL & Anr.                                       ... \n\nPetitioner(s)\n\n\n\n        versus\n\n\n\nUnion of India & Anr.                                       ... \n\nRespondent(s)\n\n\n\n                                     with\n\n                       Writ Petition (C) No. 355 of 2010\n\n\n\n                              J U D G M E N T\n<\/pre>\n
S. H. KAPADIA, CJI<\/p>\n
Int
\n       roduction   <\/p>\n
1.          The two writ petitions filed in this Court under Article <\/p>\n
32   of   the   Constitution   of   India   give   rise   to   a   substantial <\/p>\n
question of law and  of public  importance  as to the  legality  of <\/p>\n
the   appointment   of   Shri   P.J.   Thomas   (respondent   No.   2   in <\/p>\n
W.P.(C)   No.   348   of   2010)   as   Central   Vigilance   Commissioner <\/p>\n
under   Section   4(1)   of   the   Central   Vigilance   Commission   Act, <\/p>\n
2003 (“2003 Act” for short).\n<\/p>\n
2.          Government   is   not   accountable   to   the   courts   in <\/p>\n
respect of policy decisions.  However, they are accountable for <\/p>\n
                                                                               2<\/span><\/p>\n
the   legality   of   such   decisions.     While   deciding   this   case,   we <\/p>\n
must keep in mind the difference between legality and merit as <\/p>\n
also   between   judicial   review   and   merit   review.     On   3rd <\/p>\n
September,   2010,   the   High   Powered   Committee   (“HPC”   for <\/p>\n
short),   duly   constituted   under   the   proviso   to   Section   4(1)   of <\/p>\n
the 2003 Act, had recommended the name of Shri P.J. Thomas <\/p>\n
for   appointment   to   the   post   of   Central   Vigilance <\/p>\n
Commissioner.     The   validity   of   this   recommendation   falls   for <\/p>\n
judicial   scrutiny   in   this   case.     If   a  duty  is   cast   under   the <\/p>\n
proviso   to   Section   4(1)   on   the   HPC   to   recommend   to   the <\/p>\n
President   the   name   of  the   selected  candidate,   the   integrity   of <\/p>\n
that decision making process is got to ensure that the powers <\/p>\n
are exercised for the purposes and in the manner envisaged by <\/p>\n
the   said   Act,   otherwise   such   recommendation   will   have   no <\/p>\n
existence in the eye of law.\n<\/p>\n
Clarification<\/p>\n
3.        At the very outset we wish to clarify that in this case <\/p>\n
our   judgment   is   strictly   confined   to   the   legality   of   the <\/p>\n
recommendation   dated   3rd             September,   2010   and   the <\/p>\n
appointment   based   thereon.     As   of  date,   Shri   P.J.   Thomas   is <\/p>\n
                                                                               3<\/span><\/p>\n
Accused  No.   8   in   criminal   case   CC   6   of   2003   pending   in  the <\/p>\n
Court   of   Special   Judge,   Thiruvananthapuram   with   respect   to <\/p>\n
the offences  under Section 13(2) read with Section  13(1)(d)  of <\/p>\n
the   Prevention   of   Corruption   Act,   1988   and   under   Section <\/p>\n
120B   of   the   Indian   Penal   Code   (“IPC”   for   short)   [hereinafter <\/p>\n
referred   to   as   the   “Palmolein   case”].     According   to   the <\/p>\n
petitioners herein, Shri P.J. Thomas allegedly has played a big <\/p>\n
part   in   the   cover-up   of   the   2G   spectrum   allocation   which <\/p>\n
matter   is   subjudice.     Therefore,   we   make   it   clear   that   we   do <\/p>\n
not   wish   to   comment   in   this   case   on   the   pending   cases   and <\/p>\n
our judgment herein should be strictly understood to be under <\/p>\n
judicial review on the legality of the appointment of respondent <\/p>\n
No. 2 and any reference in our judgment to the Palmolein case <\/p>\n
should   not   be   understood   as   our   observations   on   merits   of <\/p>\n
that case.\n<\/p>\n
Facts<\/p>\n
4.        Shri   P.J.   Thomas   was   appointed   to   the   Indian <\/p>\n
Administrative   Service   (Kerala   Cadre)   1973   batch   where   he <\/p>\n
served   in   different   capacities   with   the   State   Government <\/p>\n
including as Secretary, Department of Food and Civil Supplies, <\/p>\n
                                                                              4<\/span><\/p>\n
State of Kerala in the year 1991.  During that period itself, the <\/p>\n
State of Kerala decided to import 30,000 MT of palmolein.  The <\/p>\n
Chief Minister of Kerala, on 5th October, 1991, wrote a letter to <\/p>\n
the   Prime   Minister   stating   that   the   State   was   intending   to <\/p>\n
import Palmolein oil and that necessary permission should be <\/p>\n
given   by   the   concerned   Ministries.     On   6th  November,   1991, <\/p>\n
the Government of India issued a scheme for direct import of <\/p>\n
edible oil for Public Distribution System (PDS) on the condition <\/p>\n
that an ESCROW account be opened and import clearance be <\/p>\n
granted   as  per   the   rules.       Respondent  No.   2 wrote  letters   to <\/p>\n
the   Secretary,   Government   of   India   stating   that   against   its <\/p>\n
earlier   demand   for   import   of   30,000   MT   of   Palmolein   oil,   the <\/p>\n
present  minimum   need   was 15,000   MT and  the  same   was  to <\/p>\n
meet   the   heavy   ensuing   demand   during   the   festivals   of <\/p>\n
Christmas   and  Sankranti,   in   the   middle   of   January,   1992, <\/p>\n
therefore,   the   State   was   proposing   to   immediately   import   the <\/p>\n
said   quantity   of   Palmolein   on   obtaining   requisite   permission.\n<\/p>\n
The  price   for   the  same   was   fixed   on  24th  January,  1992,   i.e., <\/p>\n
56   days   after   the   execution   of   the   agreement.       The   Kerala <\/p>\n
State Civil Supplies Corporation Ltd. was to act as an agent of <\/p>\n
                                                                                5<\/span><\/p>\n
the  State   Government   for  import   of  Palmolein.       The   value   of <\/p>\n
the   Palmolein   was   to   be   paid   to   the   suppliers   only   in   Indian <\/p>\n
rupees.     Further,   the   terms   governing   the   ESCROW   account <\/p>\n
were to be as approved by the Ministry of Finance.   This letter <\/p>\n
contained   various   other   stipulations   as   well.     This   was <\/p>\n
responded   to   by   the   Joint   Secretary,   Government   of   India, <\/p>\n
Ministry   of   Civil   Supplies   and   Public   Distribution,   New   Delhi <\/p>\n
vide   letter   dated   26th  November,   1991   wherein   it   was   stated <\/p>\n
that it had been decided to permit the State to import 15,000 <\/p>\n
MT of Palmolein on the terms and conditions stipulated in the <\/p>\n
Ministry’s circular of even number dated 6th  November, 1991.\n<\/p>\n
It   was   specifically   stated   that   the   service   charges   up   to   a <\/p>\n
maximum   of  15%  in  Indian  rupees  may   be  paid.     After  some <\/p>\n
further   correspondence,   the   order   of   the   State   of   Kerala   is <\/p>\n
stated   to   have   been   approved   by   the   Cabinet   on   27th <\/p>\n
November,   1991,   and   the   State   of   Kerala   actually   imported <\/p>\n
Palmolein   by   opening   an   ESCROW   account   and   getting   the <\/p>\n
import clearance at the  rate  of US $ 405  per MT in  January, <\/p>\n
1992.\n<\/p>\n
5.        The   Comptroller   and   Auditor   General   (`CAG’),   in   its <\/p>\n
                                                                              6<\/span><\/p>\n
report dated 2nd February, 1994 for the year ended 31st March, <\/p>\n
1993   took   exception   to   the   procedure   adopted   for   import   of <\/p>\n
Palmolein   by   the   State   Government.     While   mentioning   some <\/p>\n
alleged   irregularities,   the   CAG   observed,   “therefore,   the <\/p>\n
agreement entered into did not contain adequate safeguards to <\/p>\n
ensure  that  imported   product  would  satisfy  all the  standards <\/p>\n
laid   down   in   Prevention   of   Food   Adulteration   Rules,   1956”.\n<\/p>\n
This   report   of   the   CAG   was   placed   before   the   Public <\/p>\n
Undertaking   Committee   of   the   Kerala   Assembly.     The   38th <\/p>\n
Report   of   the   Kerala   Legislative   Assembly   –   Committee   on <\/p>\n
Public   Undertakings   dated   19th  March,   1996,  inter   alia,  <\/p>\n
referred to the alleged following irregularities:-\n<\/p>\n
   a. That   the   service   fee   of   15%   to   meet   the   fluctuation   in <\/p>\n
      exchange   rate   was   not   negotiated   and   hence   was <\/p>\n
      excessive.     Even   the   price   of   the   import   product   ought <\/p>\n
      not to have been settled in US Dollars.\n<\/p>\n
   b. That the concerned department of the State of Kerala had <\/p>\n
      not invited tenders and had appointed M\/s. Mala Export <\/p>\n
      Corporation,   an   associate   company   of   M\/s.   Power   and <\/p>\n
      Energy   Pvt.   Ltd.,   the   company   upon   which   the   import <\/p>\n
                                                                                   7<\/span><\/p>\n
         order was placed as handling agent for the import.\n<\/p>\n
      c. That   the   delay   in   opening   of   ESCROW   accounts   and   in <\/p>\n
         fixation   of   price,   which   were   not   in   conformity   with   the <\/p>\n
         circular issued by the Central Government had incurred <\/p>\n
         a loss of more than Rupees 4 crores to the Exchequer.\n<\/p>\n
6.          The   Committee   also   alleged   that  under   the   pretext   of <\/p>\n
plea of urgency, the deal was conducted without inviting global <\/p>\n
tenders   and   if   the   material   was   procured   by   providing   ample <\/p>\n
time by inviting global tenders, other competitors  would have <\/p>\n
emerged with lesser rates for the import of the item, which in <\/p>\n
turn, would have been more beneficial.\n<\/p>\n
7.          The   Chief   Editor   of   the   Gulf   India   Times   even   filed   a <\/p>\n
writ   petition   being   O.P.   No.   3813   of   1994   in   the   Kerala   High <\/p>\n
Court praying that directions be issued to the State to register <\/p>\n
an   FIR   on   the   ground   that   import   of   Palmolein   was   made   in <\/p>\n
violation   of   the   Government   of   India   Guidelines.     However,   it <\/p>\n
came   to   be   dismissed   by   the   learned   Single   Judge   of   the <\/p>\n
Kerala   High   Court   on   4th  April,   1994.     Still   another   writ <\/p>\n
petition came to be filed by one Shri M. Vijay Kumar, who was <\/p>\n
                                                                             8<\/span><\/p>\n
MLA   of   the   Opposition   in   the   Kerala   Assembly   praying   for <\/p>\n
somewhat similar relief.  This writ petition was dismissed by a <\/p>\n
learned Single Judge of the Kerala High Court and even appeal <\/p>\n
against that order was also dismissed by the Division Bench of <\/p>\n
that Court vide order dated 27th September, 1994.\n<\/p>\n
8.        Elections were held in the State of Kerala on 20th May, <\/p>\n
1996   and   the   Left   Democratic   Front   formed   the   government.\n<\/p>\n
An FIR was registered against Shri Karunakaran, former Chief <\/p>\n
Minister and six others in relation to an offence under Section <\/p>\n
13(2)   read   with   Section   13(1)   (d)   of   the   Prevention   of <\/p>\n
Corruption Act, 1988 and Section 120B of the IPC.   The State <\/p>\n
of   Kerala   accorded   its   sanction   to   prosecute   the   then   Chief <\/p>\n
Minister   Shri   Karunakaran   and   various   officers   in   the   State <\/p>\n
hierarchy,   who   were   involved   in   the   import   of   Palmolein, <\/p>\n
including respondent No. 2 on 30th November, 1999.\n<\/p>\n
9.        Shri   Karunakaran,   the   then   Chief   Minister   filed   a <\/p>\n
petition   before   the   High   Court   being   Criminal   Miscellaneous <\/p>\n
No.1353\/1997 praying for quashing of the said FIR registered <\/p>\n
against   him   and   the   other   officers.     Shri   P.J.   Thomas   herein <\/p>\n
was   not   a   party   in   that   petition.     However,   the   High   Court <\/p>\n
                                                                               9<\/span><\/p>\n
dismissed   the   said   writ   petition   declining   to   quash   the   FIR <\/p>\n
registered   against   the   said   persons.     In   the   meanwhile,   a <\/p>\n
challan   (report   under   Section   173   of   the   Code   of   Criminal <\/p>\n
Procedure)   had   also   been   filed   before   the   Court   of   Special <\/p>\n
Judge, Thiruvananthapuram and in this background the State <\/p>\n
of   Kerala,   vide   its   letter   dated   31st  December,   1999   wrote   to <\/p>\n
the   Department   of   Personnel   and   Training   (DoPT)   seeking <\/p>\n
sanction   to   prosecute   the   said   person   before   the   Court   of <\/p>\n
competent   jurisdiction.     Keeping   in   view   the   investigation   of <\/p>\n
the case conducted by the agency, two other persons including <\/p>\n
Shri P.J. Thomas were added as accused Nos. 7 and 8.\n<\/p>\n
10.       Shri   Karunakaran   challenged   the   order   before   this <\/p>\n
Court   by   filing   a   Petition   for   Special   Leave   to   Appeal,   being <\/p>\n
Criminal     Appeal   No.   86   of   1998,   which   also   came   to   be <\/p>\n
dismissed by this Court on 29th March, 2000.  This Court held <\/p>\n
that   “after   going   through   the   pleadings   of   the   parties   and <\/p>\n
keeping in view the rival submissions made before us, we are <\/p>\n
of   the   opinion   that   the   registration   of   the   FIR   against   the <\/p>\n
appellants and others cannot be held to be the result of mala <\/p>\n
fides   or   actuated   by   extraneous   considerations.     The   menace <\/p>\n
                                                                                  10<\/span><\/p>\n
of   corruption   cannot   be   permitted   to   be   hidden   under   the <\/p>\n
carpet   of   the   legal   technicalities…”.     The   Government   Order <\/p>\n
granting   sanction   (Annexure   R-I   in   that   petition)   was   also <\/p>\n
upheld   by   this   Court   and   it   was   further   held   that   “our <\/p>\n
observations   with   respect   to   the   legality   of   the   Government <\/p>\n
Order are not conclusive regarding its constitutionality but are <\/p>\n
restricted   so   far   as   its   applicability   to   the   registration   of   the <\/p>\n
FIR  against the appellant is concerned.     We  are,  therefore,  of <\/p>\n
the opinion that the aforesaid Government Order has not been <\/p>\n
shown to be in any way illegal or unconstitutional so far as the <\/p>\n
rights of the appellants are concerned…”.   Granting liberty to <\/p>\n
the parties to raise all pleas before the Trial Court, the appeal <\/p>\n
was   dismissed.     In   the   charge-sheet   filed   before   the   Trial <\/p>\n
Court, in paragraph 7, definite role was attributed to Accused <\/p>\n
No.   8   (respondent   No.   2   herein)   and   allegations   were   made <\/p>\n
against him.\n<\/p>\n
11.       For a period of 5 years, the matter remained pending <\/p>\n
with   the   Central   Government   and   vide   letter   dated   20th <\/p>\n
December,   2004,   the   Central   Government   asked   the   State <\/p>\n
Government to send a copy of the report which had been filed <\/p>\n
                                                                          11<\/span><\/p>\n
before the Court of competent jurisdiction.  After receiving the <\/p>\n
request   of  the   State  Government,   it  appears  that  the   file  was <\/p>\n
processed   by   various   authorities   and   as   early   as   on   18th <\/p>\n
January,   2001,   a   note   was   put   up   by   the   concerned   Under <\/p>\n
Secretary that a regular departmental enquiry should be held <\/p>\n
against Shri P.J. Thomas and Shri Jiji Thomson for imposing a <\/p>\n
major penalty.  According to this note, it was felt that because <\/p>\n
of   lack   of   evidence,   the   prosecution   may   not  succeed   against <\/p>\n
Shri   P.J.   Thomas   but   sanction   should   be   accorded   for <\/p>\n
prosecution of Shri Jiji Thomson. On 18th February, 2003, the <\/p>\n
DoPT   had   made   a   reference   to   the   Central   Vigilance <\/p>\n
Commission (“CVC” for short) on the cited subject, which was <\/p>\n
responded to by the CVC vide their letter dated 3rd June, 2003 <\/p>\n
and it conveyed its opinion as follows: –\n<\/p>\n
            “Department   of   Personnel   &   Training <\/p>\n
            may   refer   to   their   DO  letter   No.107\/1 <\/p>\n
            \/2000-AVD.I dated 18.02.2003 on the <\/p>\n
            subject cited above.<\/p><\/blockquote>\n
\n<\/blockquote>\n
            2.        Keeping   in   view   the   facts   and <\/p>\n
            circumstances   of   the   case,   the <\/p>\n
            Commission            would         advise         the <\/p>\n
            Department of Personnel & Training to <\/p>\n
            initiate   major   penalty   proceedings <\/p>\n
            against   Shri   P.J.   Thomas,   IAS  (KL:73) <\/p>\n
                                                                          12<\/span><\/p>\n
            and   Shri   Jiji   Thomson,   IAS   (KL:80) <\/p>\n
            and   completion   of  proceedings   thereof <\/p>\n
            by appointing departmental IO.<\/p>\n<\/blockquote>\n
            3.        Receipt   of   the   Commission’s <\/p>\n
            advice may be acknowledged.”<\/p><\/blockquote>\n
12.      Despite   receipt   of   the   above   opinion   of   CVC,   the <\/p>\n
matter was still kept pending, though a note was again put up <\/p>\n
on   24th  February,   2004   on   similar   lines   as   that   of   18th <\/p>\n
January, 2001.  In the meanwhile, the State of Kerala, vide its <\/p>\n
letter   dated   24th  January,   2005   wrote   to   the   DoPT   that   for <\/p>\n
reasons   recorded   in   the   letter,   they   wish   to   withdraw   their <\/p>\n
request   for   according   the   sanction   for   prosecution   of   the <\/p>\n
officers, including respondent No. 2, as made vide their letter <\/p>\n
dated   31st  December,   1999.     The   matter   which   was   pending <\/p>\n
for all this period attained a quietus in view of the letter of the <\/p>\n
State of Kerala and the PMO had been informed accordingly.\n<\/p>\n
13.      In its letter dated  4th  November, 2005, the State took <\/p>\n
the   position   that   the   allegations   made   by   the   Investigating <\/p>\n
Agency   were   invalid   and   the   cases   and   request   for   sanction <\/p>\n
against Shri P.J. Thomas should be withdrawn.\n<\/p>\n
                                                                              13<\/span><\/p>\n
14.       On   18th  May,   2006   again,   the   Left   Democratic   Front <\/p>\n
formed   the   Government   in   the   State   of   Kerala   with   Mr. <\/p>\n
Achuthanandan   as   the   Chief   Minister.     This   time   the <\/p>\n
Government   of   Kerala   filed   an   affidavit   in   this   Court <\/p>\n
disassociating itself from the contents of the earlier affidavit.\n<\/p>\n
15.       Vide   letter   dated   10th  October,   2006,   the   Chief <\/p>\n
Secretary to the Government of Kerala again wrote a letter to <\/p>\n
the   Government   of   India   informing   them   that   the   State <\/p>\n
Government   had   decided   to   continue   the   prosecution <\/p>\n
launched   by   it   and   as   such   it   sought   to   withdraw   its   above <\/p>\n
letter dated 24th  January, 2005.   In other words, it reiterated <\/p>\n
its   request   for   grant   of   sanction   by   the   Central   Government.\n<\/p>\n
Vide   letter   dated   25th      November,   2006,   the   Additional <\/p>\n
Secretary to the DoPT wrote to the State of Kerala asking them <\/p>\n
for the reasons for change in stand, in response to the letter of <\/p>\n
the   State   of   Kerala   dated   10th  October,   2006.     This   action   of <\/p>\n
the   State   Government   reviving   its   sanction   and   continuing <\/p>\n
prosecution   against   Shri   Karunakaran   and   others,   including <\/p>\n
Respondent   No.   2,   was   challenged   by   Shri   Karunakaran   by <\/p>\n
filing   Criminal   Revision   Petition   No.   430   of   2001   in   the   High <\/p>\n
                                                                            14<\/span><\/p>\n
Court of Kerala on the ground that the Government Order was <\/p>\n
liable   to   be   set   aside   on   the   ground   of   mala   fide   and <\/p>\n
arbitrariness.  This petition was dismissed by the High Court.\n<\/p>\n
In its judgment, the High Court referred to the alleged role of <\/p>\n
Shri   P.J.   Thomas   in   the   Palmolein   case.     The   action   of   the <\/p>\n
State   Government   or   pendency   of   proceedings   before   the <\/p>\n
Special   Judge   at   Thiruvananthapuram   was   never   challenged <\/p>\n
by   Shri   P.J.   Thomas   before   any   court   of   competent <\/p>\n
jurisdiction.  The request of the State Government for sanction <\/p>\n
by   the   Central   Government   was   considered   by   different <\/p>\n
persons   in   the   Ministry   and   vide   its   noting   dated   10th  May, <\/p>\n
2007,   a   query   was   raised   upon   the   CVC   as   to   whether <\/p>\n
pendency   of   a   reply   to   Ministry’s   letter,   from   State <\/p>\n
Government   in   power,   on   a   matter   already   settled   by   the <\/p>\n
previous   State   Government   should   come   in   the   way   of <\/p>\n
empanelment of these officers for appointment to higher post <\/p>\n
in   the   Government.     Rather   than   rendering   the   advice   asked <\/p>\n
for, the CVC vide its letter dated 25th June, 2007 informed the <\/p>\n
Ministry as follows :\n<\/p>\n
             “Department   of   Personnel   &   Training   may <\/p>\n
                                                                          15<\/span><\/p>\n
             refer to their note dated 17.05.2007, in file <\/p>\n
             No.107\/1\/2000-AVD-I,   on   the   above <\/p>\n
             subject.\n<\/p><\/blockquote>\n
<\/blockquote>\n
            2.           The case has been re-examined and <\/p>\n
             Commission   has   observed   that   no   case   is <\/p>\n
             made   out   against   S\/Shri   P.J.   Thomas   and <\/p>\n
             Jiji   Thomson   in   connection   with   alleged <\/p>\n
             conspiracy   with   other   public   servants   and <\/p>\n
             private   persons   in   the   matter   of   import   of <\/p>\n
             Palmolein   through   a   private   firm.     The <\/p>\n
             abovesaid officers acted in accordance with <\/p>\n
             a   legitimately   taken   Cabinet   decision   and <\/p>\n
             no   loss   has   been   caused   to   the   State <\/p>\n
             Government and most important, no case is <\/p>\n
             made out that they had derived any benefit <\/p>\n
             from the transaction. (emphasis supplied)<\/p>\n<\/blockquote>\n
            3.           In   view   of   the   above,   Commission <\/p>\n
             advises   that   the   case   against   S\/Shri   P.J. <\/p>\n
             Thomas   and  Jiji   Thomson   may   be  dropped <\/p>\n
             and matter be referred once again thereafter <\/p>\n
             to   the   Commission   so   that   Vigilance <\/p>\n
             Clearance   as   sought   for   now   can   be <\/p>\n
             recorded.<\/p><\/blockquote>\n
\n<\/blockquote>\n
             4.          DOPT’s   file   No.107\/1\/2000-AVD-I <\/p>\n
             along   with   the   records   of   the   case,   is <\/p>\n
             returned   herewith.     Its   receipt   may   be <\/p>\n
             acknowledged.     Action   taken   in   pursuance <\/p>\n
             of Commission’s advice may be intimated to <\/p>\n
             the Commission early.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
16.      It may be  noticed that neither  in the above reply  nor <\/p>\n
on   the   file   any   reasons   are   available   as   to   why   CVC   had <\/p>\n
changed its earlier opinion\/stand as conveyed to the Ministry <\/p>\n
                                                                                 16<\/span><\/p>\n
vide its letter dated 3rd  June, 2003.   After receiving the above <\/p>\n
advice of CVC, the Ministry on 6th  July, 2007 had recorded a <\/p>\n
note in the file that as far as CVC’s advice regarding dropping <\/p>\n
all   proceedings   is   concerned,   the   Ministry   should   await   the <\/p>\n
action   to   be   taken   by   the   Government   of   Kerala  and   the <\/p>\n
relevant courts.\n<\/p>\n
17.       The legality and correctness of the order of the Kerala <\/p>\n
High Court dated 19th February, 2003 was questioned by  Shri <\/p>\n
Karunakaran   by   filing   a   petition   before   this   Court   on   which <\/p>\n
leave   was   granted   and   it   came   to   be   registered   as   Criminal <\/p>\n
Appeal   No.   801   of   2003.     This   appeal   was   also   dismissed   by <\/p>\n
this Court vide its order dated 6th  December, 2006.   However, <\/p>\n
the   parties   were   given   liberty   to   raise   the   plea   of   mala   fides <\/p>\n
before   the   High   Court.     Even   on   reconsideration,   the   High <\/p>\n
Court dismissed the petition filed by Shri Karunakaran raising <\/p>\n
the plea of mala fides vide its order dated 6th July, 2007.  The <\/p>\n
High   Court   had,   thus,   declined   to   accept   that   action   of   the <\/p>\n
State   Government   in   prosecuting   the   persons   stated   therein <\/p>\n
was actuated by mala fides.   The order of the High Court was <\/p>\n
again challenged by Shri Karunakaran by preferring a Petition <\/p>\n
                                                                                17<\/span><\/p>\n
for Special Leave to Appeal before this Court.  This Court had <\/p>\n
stayed further proceedings before the Trial Court.  This appeal <\/p>\n
remained   pending   till   23rd  December,   2010   when   it   abated <\/p>\n
because of unfortunate demise of Shri Karunakaran.\n<\/p>\n
18.       Vide   order   dated   18th            September,   2007,   the <\/p>\n
Government   of   Kerala   appointed   Shri   P.J.   Thomas   as   the <\/p>\n
Chief   Secretary.     Thereafter,   on   6th  October,   2008   CVC <\/p>\n
accorded   vigilance   clearance   to   all   officers   except   Smt.\n<\/p>\n
Parminder M. Singh.   We have perused the files submitted by <\/p>\n
the learned Attorney General for India.  From the said files we <\/p>\n
find   that   there   are   at   least   six   notings   of   DoPT   between   26th <\/p>\n
June, 2000 and 2nd November, 2004 which has recommended <\/p>\n
initiation of penalty proceedings against Shri P.J. Thomas and <\/p>\n
yet in the clearance given by CVC on 6th October, 2008 and in <\/p>\n
the   Brief   prepared   by   DoPT   dated   1st  September,   2010   and <\/p>\n
placed before HPC there is no reference to the earlier notings <\/p>\n
of the then DoPT and nor any reason has been given as to why <\/p>\n
CVC had changed its views while granting vigilance clearance <\/p>\n
on   6th  October,   2008.     On   23rd  January,   2009,   Shri   P.J.\n<\/p>\n
Thomas  was appointed   as  Secretary,   Parliamentary   Affairs  to <\/p>\n
                                                                        18<\/span><\/p>\n
the Government of India.\n<\/p>\n
19.      The DoPT empanelled three officers vide its note dated <\/p>\n
1st  September, 2010.   Vide the same note along with the Brief <\/p>\n
the matter was put up to the HPC for selecting one candidate <\/p>\n
out of the empanelled officers for the post of Central Vigilance <\/p>\n
Commissioner.     The   meeting   of   the   HPC   consisting   of   the <\/p>\n
Prime   Minister,   the   Home   Minister   and   the   Leader   of   the <\/p>\n
Opposition was held on 3rd September, 2010.   In the meeting, <\/p>\n
disagreement   was   recorded   by   the   Leader   of   the   Opposition, <\/p>\n
despite   which,   name   of   Shri   P.J.   Thomas   was   recommended <\/p>\n
for appointment to the post of Central Vigilance Commissioner <\/p>\n
by   majority.     A   note   was   thereafter   put   up   with   the <\/p>\n
recommendation   of   the   HPC   and   placed   before   the   Prime <\/p>\n
Minister   which   was   approved   on   the   same   day.     On   4th <\/p>\n
September,   2010,   the   same   note   was   submitted   to   the <\/p>\n
President   who   also   approved   it   on   the   same   day.\n<\/p>\n
Consequently,   Shri   P.J.   Thomas   was   appointed   as   Central <\/p>\n
Vigilance Commissioner and he took oath of his office.\n<\/p>\n
Setting-up of CVC<\/p>\n
                                                                          19<\/span><\/p>\n
20.             Vigilance   is   an   integral   part   of   all   government <\/p>\n
institutions.     Anti-corruption   measures   are   the   responsibility <\/p>\n
of the Central Government.  Towards this end the Government <\/p>\n
set up the following departments :\n<\/p>\n
        (i)          CBI\n\n\n\n        (ii)         Administrative Vigilance Division in DoPT\n\n\n\n        (iii)     Domestic   Vigilance   Units   in   the   Ministries\/ \n\n\n\n<\/pre>\n
                  Departments,   Government   companies,   Government <\/p>\n
                  Corporations, nationalized banks and PSUs<\/p>\n
        (iv)         CVC<\/p>\n
21.             Thus, CVC as an integrity institution was set up by the <\/p>\n
Government   of   India   in   1964   vide   Government   Resolution <\/p>\n
pursuant   to   the   recommendations   of   Santhanam   Committee.\n<\/p>\n
However, it was not a statutory body at that time.   According <\/p>\n
to   the   recommendations   of   the   Santhanam   Committee,   CVC, <\/p>\n
in   its   functions,   was   supposed   to   be   independent   of   the <\/p>\n
executive.  The sole purpose behind setting up of the CVC was <\/p>\n
to improve the vigilance administration of the country.\n<\/p>\n
22.             In   September,   1997,   the   Government   of   India <\/p>\n
established the Independent Review Committee to monitor the <\/p>\n
                                                                           20<\/span><\/p>\n
functioning of CVC and to examine the working of CBI and the <\/p>\n
Enforcement Directorate.  Independent Review Committee vide <\/p>\n
its   report   of   December,   1997   suggested   that   CVC   be   given   a <\/p>\n
statutory   status.     It   also   recommended   that   the   selection   of <\/p>\n
Central   Vigilance   Commissioner   shall   be   made   by   a   High <\/p>\n
Powered   Committee   comprising   of   the   Prime   Minister,   the <\/p>\n
Home Minister and the Leader of Opposition in Lok Sabha.  It <\/p>\n
also recommended that the appointment shall be made by the <\/p>\n
President   of   India   on   the   specific   recommendations   made   by <\/p>\n
the HPC.   That, the CVC shall be responsible for the efficient <\/p>\n
functioning of CBI; CBI shall report to CVC about cases taken <\/p>\n
up for investigations; the appointment of CBI Director shall be <\/p>\n
by   a   Committee   headed   by   the   Central   Vigilance <\/p>\n
Commissioner; the Central Vigilance Commissioner shall have <\/p>\n
a minimum fixed tenure and that a Committee headed by the <\/p>\n
Central   Vigilance   Commissioner   shall   prepare   a   panel   for <\/p>\n
appointment of Director of Enforcement.\n<\/p>\n
23.       On   18th  December,   1997   the   judgment   in   the   case   of <\/p>\n
Vineet Narain v. Union of India<\/a> [(1998) 1 SCC 226] came to <\/p>\n
be delivered.   Exercising authority under Article 32 read with <\/p>\n
                                                                                        21<\/span><\/p>\n
Article   142,   this   Court   in   order   to   implement   an   important <\/p>\n
constitutional   principle   of   the   rule   of   law   ordered   that   CVC <\/p>\n
shall   be   given   a   statutory   status   as   recommended   by <\/p>\n
Independent           Review         Committee.              All         the         above <\/p>\n
recommendations   of   Independent   Review   Committee   were <\/p>\n
ordered to be given a statutory status.\n<\/p>\n
24.       The   judgment   in  Vineet   Narain’s    case   (supra)   was <\/p>\n
followed   by   the   1999   Ordinance   under   which   CVC   became   a <\/p>\n
multi-member   Commission   headed   by   Central   Vigilance <\/p>\n
Commissioner.     The   1999   Ordinance   conferred   statutory <\/p>\n
status   on   CVC.     The   said   Ordinance   incorporated   the <\/p>\n
directions given by this Court in Vineet Narain’s case.  Suffice <\/p>\n
it   to   state,   that,   the   1999   Ordinance   stood   promulgated   to <\/p>\n
improve the  vigilance administration  and to create a culture of <\/p>\n
integrity  as far as government administration is concerned.\n<\/p>\n
25.       The   said   1999   Ordinance   was   ultimately   replaced   by <\/p>\n
the   enactment   of   the   2003   Act   which   came   into   force   with <\/p>\n
effect from 11th September, 2003.\n<\/p>\n
Analysis of the 2003 Act <\/p>\n
26.       The   2003   Act   has   been   enacted   to   provide   for   the <\/p>\n
                                                                              22<\/span><\/p>\n
constitution   of   a   Central   Vigilance   Commission   as   an <\/p>\n
institution   to   inquire   or  cause   inquiries   to   be   conducted   into <\/p>\n
offences alleged to have been committed under the Prevention <\/p>\n
of   Corruption   Act,   1988   by   certain   categories   of   public <\/p>\n
servants of  the  Central  Government,  corporations  established <\/p>\n
by or under any Central Act, Government companies, societies <\/p>\n
and   local   authorities   owned   or   controlled   by   the   Central <\/p>\n
Government and for matters connected therewith or incidental <\/p>\n
thereto  (see Preamble).   By way of an aside, we may point out <\/p>\n
that in Australia, US, UK and Canada there exists a concept of <\/p>\n
integrity   institutions.     In   Hongkong   we   have   an   Independent <\/p>\n
Commission   against   corruption.     In   Western   Australia   there <\/p>\n
exists a statutory Corruption Commission.  In Queensland, we <\/p>\n
have   Misconduct   Commission.     In   New   South   Wales   there   is <\/p>\n
Police   Integrity   Commission.   All   these   come   within   the <\/p>\n
category   of  integrity   institutions.     In   our   opinion,   CVC   is   an <\/p>\n
integrity   institution.     This   is   clear   from   the   scope   and   ambit <\/p>\n
(including   the   functions   of   the   Central   Vigilance <\/p>\n
Commissioner) of the 2003 Act.   It is an  Institution  which is <\/p>\n
statutorily created   under  the Act.   It is  to supervise  vigilance  <\/p>\n
                                                                                         23<\/span><\/p>\n
administration.     The   2003   Act   provides   for   a   mechanism   by <\/p>\n
which   the   CVC   retains   control   over   CBI.     That   is   the   reason <\/p>\n
why   it   is   given   autonomy   and   insulation   from   external <\/p>\n
influences under the 2003 Act.\n<\/p>\n
27.       For   the   purposes   of   deciding   this   case,   we   need   to <\/p>\n
quote the relevant provisions of the 2003 Act.\n<\/p>\n
             3.           Constitution   of   Central   Vigilance <\/p>\n
             Commission.-\n<\/p>\n
             (2)            The Commission shall consist of--\n\n\n\n             (a)          a   Central   Vigilance   Commissioner   -- \n\n                          Chairperson;\n\n             (b)          not more than two Vigilance Commissioners \n\n                          -Members.\n\n\n\n             (3)            The   Central   Vigilance   Commissioner   and \n\n<\/pre>\n
             the   Vigilance   Commissioners   shall   be   appointed <\/p>\n
             from amongst persons–\n<\/p>\n
             (a)            who   have   been   or   are   in   an   All-India <\/p>\n
             Service or in any civil service of the Union or in a <\/p>\n
             civil   post   under  the   Union   having  knowledge   and <\/p>\n
             experience   in   the   matters   relating   to   vigilance, <\/p>\n
             policy making and administration including police <\/p>\n
             administration;\n<\/p>\n
             4.           Appointment           of         Central         Vigilance <\/p>\n
             Commissioner and Vigilance Commissioners.-\n<\/p>\n
             (1)   The   Central   Vigilance   Commissioner   and   the <\/p>\n
             Vigilance   Commissioners   shall   be   appointed   by <\/p>\n
             the President by warrant under his hand and seal:\n<\/p>\n
             Provided   that   every   appointment   under   this   sub-\n<\/p>\n
                                                                        24<\/span><\/p>\n
section   shall   be   made   after   obtaining   the <\/p>\n
recommendation of a Committee consisting of–\n<\/p>\n
(a) the Prime Minister                                   -- \n\nChairperson;\n\n(b) the Minister of Home Affairs             -- Member;\n\n(c) the Leader of the Opposition in the \n\n     House of the People                     --Member.\n\n\n\n<\/pre>\n
Explanation.–For   the   purposes   of   this   sub-\n<\/p>\n
section,   “the   Leader   of   the   Opposition   in   the <\/p>\n
House  of  the   People”  shall,  when   no   such   Leader <\/p>\n
has been so recognized, include the Leader of the <\/p>\n
single   largest   group   in   opposition   of   the <\/p>\n
Government in the House of the People.\n<\/p>\n
(2)   No   appointment   of   a   Central   Vigilance <\/p>\n
Commissioner   or   a   Vigilance   Commissioner   shall <\/p>\n
be invalid merely by reason of any vacancy in the <\/p>\n
Committee.\n<\/p>\n
5.           Terms   and   other   conditions   of   service <\/p>\n
of Central Vigilance Commissioner. –\n<\/p>\n
(1)          Subject   to   the   provisions   of   sub-sections <\/p>\n
(3)   and   (4),   the   Central   Vigilance   Commissioner <\/p>\n
shall hold office for a term of four years from the <\/p>\n
date on which  he enters upon his  office or till he <\/p>\n
attains   the   age   of   sixty-five   years,   whichever   is <\/p>\n
earlier.   The   Central   Vigilance   Commissioner,   on <\/p>\n
ceasing   to   hold   the   office,   shall   be   ineligible   for <\/p>\n
reappointment in the Commission.\n<\/p>\n
(3)          The Central  Vigilance Commissioner or a <\/p>\n
Vigilance   Commissioner   shall,   before   he   enters <\/p>\n
upon   his   office,   make   and   subscribe   before   the <\/p>\n
President, or some other person appointed in that <\/p>\n
behalf by him, an oath or affirmation according to <\/p>\n
the   form   set   out   for   the   purpose   in   Schedule   to <\/p>\n
this Act.\n<\/p>\n
(6)          On   ceasing   to   hold   office,   the   Central <\/p>\n
                                                                        25<\/span><\/p>\n
Vigilance Commissioner and every other Vigilance <\/p>\n
Commissioner shall be ineligible for–\n<\/p>\n
(a)        any   diplomatic   assignment,   appointment <\/p>\n
as   administrator   of   a   Union   territory   and   such <\/p>\n
other   assignment   or   appointment   which   is <\/p>\n
required   by   law   to   be   made   by   the   President   by <\/p>\n
warrant under his hand and seal.\n<\/p>\n
(b)        further employment to any office of profit <\/p>\n
under the Government of India or the Government <\/p>\n
of a State.\n<\/p>\n
6. Removal of Central Vigilance Commissioner <\/p>\n
and Vigilance Commissioner.-  (1) Subject to the <\/p>\n
provisions of sub-section (3), the Central Vigilance <\/p>\n
Commissioner   or   any   Vigilance   Commissioner <\/p>\n
shall   be   removed   from   his   office   only   by   order   of <\/p>\n
the   President   on   the   ground   of   proved <\/p>\n
misbehaviour   or   incapacity   after   the   Supreme <\/p>\n
Court, on a reference made to it by the President, <\/p>\n
has,   on   inquiry,   reported   that   the   Central <\/p>\n
Vigilance   Commissioner   or   any   Vigilance <\/p>\n
Commissioner, as the case may be, ought on such <\/p>\n
ground be removed.\n<\/p>\n
(3)   Notwithstanding   anything   contained   in   sub-\n<\/p>\n
section   (1),   the   President   may   by   order   remove <\/p>\n
from office the Central Vigilance Commissioner or <\/p>\n
any   Vigilance   Commissioner   if   the   Central <\/p>\n
Vigilance   Commissioner   or   such   Vigilance <\/p>\n
Commissioner, as the case may be,–\n<\/p>\n
(a)        is adjudged an insolvent; or\n\n(b)        has   been   convicted   of   an   offence   which, \n\n<\/pre>\n
in the opinion of the Central Government, involves <\/p>\n
moral turpitude; or<\/p>\n
(c)        engages   during   his   term   of   office   in   any <\/p>\n
paid   employment   outside   the   duties   of   his   office;\n<\/p>\n
or<\/p>\n
(d)        is, in the opinion of the President, unfit to <\/p>\n
continue in office by reason of infirmity of mind or <\/p>\n
                                                                                    26<\/span><\/p>\n
body; or<\/p>\n
(e)         has   acquired   such   financial   or   other <\/p>\n
interest   as   is   likely   to   affect   prejudicially   his <\/p>\n
functions as a Central Vigilance Commissioner or <\/p>\n
a Vigilance Commissioner.\n<\/p>\n
8.          Functions   and   powers   of   Central <\/p>\n
Vigilance Commission-\n<\/p>\n
(1)   The   functions   and   powers   of   the   Commission <\/p>\n
shall be to–\n<\/p>\n
(a)         exercise         superintendence                   over         the <\/p>\n
functioning   of   the   Delhi   Special   Police <\/p>\n
Establishment   in   so   far   as   it   relates   to   the <\/p>\n
investigation   of   offences   alleged   to   have   been <\/p>\n
committed under the Prevention of Corruption Act, <\/p>\n
1988   or   an   offence   with   which   a   public   servant <\/p>\n
specified in sub-section (2) may, under the Code of <\/p>\n
Criminal Procedure, 1973, be charged at the same <\/p>\n
trial;\n<\/p>\n
(b)         give directions to the Delhi Special Police <\/p>\n
Establishment   for   the   purpose   of   discharging   the <\/p>\n
responsibility entrusted to it under sub-section (1) <\/p>\n
of   section   4   of   the   Delhi   Special   Police <\/p>\n
Establishment Act, 1946:\n<\/p>\n
(d)         inquire   or   cause   an   inquiry   or <\/p>\n
investigation   to   be   made   into   any   complaint <\/p>\n
against   any   official   belonging   to   such   category   of <\/p>\n
officials   specified   in   sub-section   (2)   wherein   it   is <\/p>\n
alleged   that   he   has   committed   an   offence   under <\/p>\n
the   Prevention   of   Corruption   Act,   1988   and   an <\/p>\n
offence   with   which   a   public   servant   specified   in <\/p>\n
subsection   (2)   may,   under   the   Code   of   Criminal <\/p>\n
Procedure, 1973, be charged at the same trial;<\/p>\n
\n\n\n\n(e)         review   the   progress   of   investigations \n\nconducted        by          the         Delhi         Special         Police \n\n<\/pre>\n
Establishment   into   offences   alleged   to   have   been <\/p>\n
committed under the Prevention of Corruption Act, <\/p>\n
1988 or the public servant may, under the Code of <\/p>\n
                                                                               27<\/span><\/p>\n
Criminal Procedure, 1973, be charged at the same <\/p>\n
trial;\n<\/p>\n
(f)         review   the   progress   of   applications <\/p>\n
pending   with   the   competent   authorities   for <\/p>\n
sanction   of   prosecution   under   the   Prevention   of <\/p>\n
Corruption Act, 1988;\n<\/p>\n
(h)         exercise         superintendence             over          the <\/p>\n
vigilance   administration   of   the   various   Ministries <\/p>\n
of   the   Central   Government   or   corporations <\/p>\n
established   by   or   under   any   Central   Act, <\/p>\n
Government   companies,   societies   and   local <\/p>\n
authorities   owned   or   controlled   by   that <\/p>\n
Government:\n<\/p>\n
(2)   The   persons   referred   to   in   clause   (d)   of   sub-\n<\/p>\n
section (1) are as follows:–\n<\/p>\n
(a)         members   of   All-India   Services   serving   in <\/p>\n
connection   with   the   affairs   of   the   Union   and <\/p>\n
Group `A’ officers of the Central Government;\n<\/p>\n
(b)         such   level   of   officers   of   the   corporations <\/p>\n
established   by   or   under   any   Central   Act, <\/p>\n
Government   companies,   societies   and   other   local <\/p>\n
authorities,   owned   or   controlled   by   the   Central <\/p>\n
Government,   as   that   Government   may,   by <\/p>\n
notification   in   the   Official   Gazette,   specify   in   this <\/p>\n
behalf:\n<\/p>\n
Provided that till such time a notification is issued <\/p>\n
under   this   clause,   all   officers   of   the   said <\/p>\n
corporations,   companies,   societies   and   local <\/p>\n
authorities   shall   be   deemed   to   be   the   persons <\/p>\n
referred to in clause (d) of sub-section (1).\n<\/p>\n
11.   Power   relating   to   inquiries.   –                           The <\/p>\n
Commission   shall,   while   conducting   any   inquiry <\/p>\n
referred to in clauses (c) and (d) of sub-section (1) <\/p>\n
of   section   8,   have   all   the   powers   of   a   civil   court <\/p>\n
trying   a   suit   under   the   Code   of   Civil   Procedure, <\/p>\n
1908 and in particular, in respect of the following <\/p>\n
                                                                    28<\/span><\/p>\n
matters, namely:–\n<\/p>\n
(a)     summoning and enforcing the attendance of <\/p>\n
        any   person   from   any   part   of   India   and <\/p>\n
        examining him on oath;\n<\/p>\n
(b)     requiring   the   discovery   and   production   of <\/p>\n
        any document;\n<\/p>\n
(c)        receiving evidence on affidavits;\n<\/p>\n
(d)     requisitioning   any   public   record   or   copy <\/p>\n
        thereof from any court or office;\n<\/p>\n
(e)     issuing   commissions   for   the   examination   of <\/p>\n
        witnesses or other documents; And <\/p>\n
(f)        any   other   matter   which   may   be <\/p>\n
prescribed.\n<\/p>\n
                     THE SCHEDULE<\/p>\n
                     [See section 5(3)]<\/p>\n
Form of  oath or  affirmation to  be made  by <\/p>\n
the   Central   Vigilance   Commissioner   or <\/p>\n
Vigilance Commissioner:–\n<\/p>\n
“I,   A.   B.,   having   been   appointed   Central <\/p>\n
Vigilance           Commissioner          (or         Vigilance <\/p>\n
Commissioner)   of   the  Central   Vigilance <\/p>\n
Commission do   swear   in   the   name   of <\/p>\n
god\/  solemnly affirm that I will bear true faith <\/p>\n
and   allegiance   to   the   Constitution   of   India   as <\/p>\n
by   law   established,   that   I   will   uphold   the <\/p>\n
sovereignty   and   integrity   of   India,   that   I   will <\/p>\n
duly   and   faithfully   and   to   the   best   of   my <\/p>\n
ability,   knowledge   and   judgment   perform   the <\/p>\n
duties   of   my   office   without   fear   or   favour, <\/p>\n
                                                                                   29<\/span><\/p>\n
              affection   or   ill-will   and   that   I   will   uphold   the <\/p>\n
              constitution and the laws.”.\n<\/p>\n
28.       On   analysis   of   the   2003   Act,   the   following   are   the <\/p>\n
salient   features.     CVC   is   given   a   statutory   status.     It   stands <\/p>\n
established   as   an   Institution.     CVC   stands   established   to <\/p>\n
inquire into offences alleged to have been committed under the <\/p>\n
Prevention   of   Corruption   Act,   1988   by   certain   categories   of <\/p>\n
public servants enumerated above.    Under Section  3(3)(a) the <\/p>\n
Central   Vigilance   Commissioner   and   the   Vigilance <\/p>\n
Commissioners are to be appointed from amongst persons who <\/p>\n
have been or are  in All India Service or in any civil service of <\/p>\n
the   Union   or  who  are   in   a  civil   post   under   the   Union  having <\/p>\n
knowledge and experience in the matters relating to vigilance, <\/p>\n
policy   making   and   administration   including   police <\/p>\n
administration.  The underlined words “who have been or who <\/p>\n
are”   in   Section   3(3)(a)   refer   to   the   person   holding   office   of   a <\/p>\n
civil   servant   or   who   has   held   such   office.     These   underlined <\/p>\n
words came up for consideration by this Court  in the case of <\/p>\n
N. Kannadasan v. Ajoy Khose and Others<\/a>  [(2009) 7 SCC 1] <\/p>\n
in   which   it   has   been   held   that   the   said   words   indicate   the <\/p>\n
                                                                               30<\/span><\/p>\n
eligibility   criteria   and   further   they   indicate   that   such   past   or <\/p>\n
present   eligible   persons   should   be   without   any  blemish  <\/p>\n
whatsoever   and   that   they   should   not   be   appointed   merely <\/p>\n
because   they   are   eligible   to   be   considered   for   the   post.     One <\/p>\n
more aspect needs to be highlighted.  The constitution of CVC <\/p>\n
as   a   statutory   body   under   Section   3   shows   that   CVC   is   an <\/p>\n
Institution.   The key word is Institution.   We are emphasizing <\/p>\n
the key word for the simple reason that in the present case the <\/p>\n
recommending   authority   (High   Powered   Committee)   has   gone <\/p>\n
by   personal   integrity   of   the   officers   empanelled   and   not   by <\/p>\n
institutional integrity.\n<\/p>\n
29.           Section   4   refers   to   appointment   of   Central   Vigilance <\/p>\n
Commissioner   and   Vigilance   Commissioners.     Under   Section <\/p>\n
4(1)   they   are   to   be   appointed   by   the   President   by   warrant <\/p>\n
under   her   hand   and   seal.     Section   4(1)   indicates   the <\/p>\n
importance     of   the   post.     Section   4(1)   has   a   proviso.     Every <\/p>\n
appointment under Section 4(1) is to be made after obtaining <\/p>\n
the recommendation of a committee consisting of-\n<\/p>\n
       (a)          The Prime Minister                       -         \n\n\n\n       Chairperson;\n\n\n                                                                             31<\/span>\n\n\n       (b)         The Minister of Home Affairs           -         Member;\n\n\n\n       (c)         The Leader of the Opposition \n\n                     in the House of the People                     -\n\n                   Member.\n\n\n\n<\/pre>\n
30.           For  the sake  of  brevity,  we may  refer  to  the  Selection <\/p>\n
Committee as High Powered Committee.   The key word in the <\/p>\n
proviso   is   the   word   “recommendation”.     While   making   the <\/p>\n
recommendation,   the   HPC   performs   a   statutory   duty.     The <\/p>\n
impugned   recommendation   dated   3rd  September,   2010   is   in <\/p>\n
exercise   of   the   statutory   power   vested   in   the   HPC   under   the <\/p>\n
proviso   to   Section   4(1).     The   post   of   Central   Vigilance <\/p>\n
Commissioner   is   a   statutory   post.     The   Commissioner <\/p>\n
performs statutory functions as enumerated in Section 8.  The <\/p>\n
word  `recommendation’  in the  proviso  stands  for   an  informed <\/p>\n
decision   to   be   taken   by   the   HPC   on   the   basis   of   a <\/p>\n
consideration   of   relevant   material   keeping   in   mind   the <\/p>\n
purpose,   object   and   policy   of   the   2003   Act.     As   stated,   the <\/p>\n
object   and   purpose   of   the   2003   Act   is   to   have   an   integrity <\/p>\n
Institution   like   CVC   which   is   in   charge   of             vigilance  <\/p>\n
administration         and   which   constitutes   an   anti-corruption <\/p>\n
mechanism.     In   its   functions,   the   CVC   is   similar   to   Election <\/p>\n
                                                                                     32<\/span><\/p>\n
Commission, Comptroller and Auditor General, Parliamentary <\/p>\n
Committees   etc.     Thus,   while   making   the   recommendations, <\/p>\n
the service conditions of the candidate being a public servant <\/p>\n
or   civil   servant   in   the   past   is   not   the   sole   criteria.     The   HPC <\/p>\n
must also take into consideration the question of institutional <\/p>\n
competency   into   account.     If   the   selection   adversely   affects <\/p>\n
institutional   competency   and   functioning   then   it  shall   be   the <\/p>\n
duty  of  the  HPC  not to  recommend  such  a candidate.     Thus, <\/p>\n
the   institutional   integrity   is   the   primary   consideration   which <\/p>\n
the HPC is required to consider while making recommendation <\/p>\n
under   Section   4   for   appointment   of   Central   Vigilance <\/p>\n
Commissioner.     In the  present  case,  this vital aspect   has not <\/p>\n
been taken into account by the HPC while recommending the <\/p>\n
name   of   Shri   P.J.   Thomas   for   appointment   as   Central <\/p>\n
Vigilance Commissioner.  We do not wish to discount personal <\/p>\n
integrity   of   the   candidate.     What   we   are   emphasizing   is   that <\/p>\n
institutional integrity of an institution like CVC has got to be <\/p>\n
kept in mind while recommending the name of the candidate.\n<\/p>\n
Whether   the   incumbent   would   or   would   not   be   able   to <\/p>\n
function?     Whether   the   working   of   the   Institution   would <\/p>\n
                                                                                  33<\/span><\/p>\n
suffer?     If   so,   would   it   not   be   the   duty   of   the   HPC   not   to <\/p>\n
recommend the person.   In this connection the HPC has also <\/p>\n
to keep in mind the object and the policy behind enactment of <\/p>\n
the   2003   Act.     Under   Section   5(1)   the   Central   Vigilance <\/p>\n
Commissioner   shall   hold   the   office   for   a   term   of   4   years.\n<\/p>\n
Under  Section  5(3)   the  Central  Vigilance   Commissioner   shall, <\/p>\n
before he enters upon his office, makes and subscribes before <\/p>\n
the President an oath or affirmation according to the form set <\/p>\n
out in the Schedule to the Act.  Under Section 6(1) the Central <\/p>\n
Vigilance Commissioner shall be removed from his office only <\/p>\n
by order of the President and that too on the ground of proved <\/p>\n
misbehaviour   or   incapacity   after   the   Supreme   Court,   on   a <\/p>\n
reference made to it by the President, has on inquiry reported <\/p>\n
that   the   Central   Vigilance   Commissioner   be   removed.     These <\/p>\n
provisions   indicate   that   the   office   of   the   Central   Vigilance <\/p>\n
Commissioner   is   not   only   given   independence   and   insulation <\/p>\n
from   external   influences,   it   also   indicates   that   such <\/p>\n
protections are given in order to enable the Institution of CVC <\/p>\n
to work in a free and fair environment.  The prescribed form of <\/p>\n
oath   under   Section   5(3)   requires   Central   Vigilance <\/p>\n
                                                                            34<\/span><\/p>\n
Commissioner   to   uphold   the   sovereignty   and  integrity  of   the <\/p>\n
country and to perform his duties without  fear or favour.   All <\/p>\n
these   provisions   indicate   that   CVC   is   an  integrity   institution.\n<\/p>\n
The HPC has, therefore, to take into consideration the values <\/p>\n
independence   and   impartiality   of   the   Institution.     The   said <\/p>\n
Committee   has   to   consider   the   institutional   competence.     It <\/p>\n
has   to   take   an   informed   decision   keeping   in   mind   the <\/p>\n
abovementioned   vital   aspects   indicated   by   the   purpose   and <\/p>\n
policy of the 2003 Act.\n<\/p>\n
31.       Chapter   III   refers   to   functions   and   powers   of   the <\/p>\n
Central Vigilance Commission. CVC exercises superintendence <\/p>\n
over the functioning of the Delhi Special Police Establishment <\/p>\n
insofar as it relates to investigation of offences alleged to have <\/p>\n
been committed under the Prevention of Corruption Act, 1988, <\/p>\n
or   an   offence   with   which   a   public   servant   specified   in   sub-\n<\/p>\n
section   (2)  may,   under   the  Code  of  Criminal Procedure,  1973 <\/p>\n
be   charged   with   at   the   trial.     Thus,   CVC   is   empowered   to <\/p>\n
exercise   superintendence   over   the   functioning   of   CBI.     It   is <\/p>\n
also empowered to give directions to CBI.  It is also empowered <\/p>\n
to review the progress of investigations conducted by CBI into <\/p>\n
                                                                        35<\/span><\/p>\n
offences alleged to have been committed under the Prevention <\/p>\n
of   Corruption   Act,   1988   or   under   the   Code   of   Criminal <\/p>\n
Procedure   by   a   public   servant.     CVC   is   also   empowered   to <\/p>\n
exercise   superintendence   over   the   vigilance   administration   of <\/p>\n
various   ministries   of   the   Central   Government,   PSUs, <\/p>\n
Government   companies   etc.     The   powers   and   functions <\/p>\n
discharged by CVC is the sole reason for giving the institution <\/p>\n
the   administrative   autonomy,   independence   and   insulation <\/p>\n
from external influences.\n<\/p>\n
Validity
\n             of the recommendation dated 3 rd
\n                                                      September, 2010 <\/p>\n
32.      One   of   the   main   contentions   advanced   on   behalf   of <\/p>\n
Union of India and Shri P.J. Thomas before us was that once <\/p>\n
the CVC clearance had been granted on 6th October, 2008 and <\/p>\n
once   the   candidate   stood   empanelled   for   appointment   at   the <\/p>\n
Centre and in fact stood appointed as Secretary, Parliamentary <\/p>\n
Affairs and, thereafter, Secretary Telecom, it was legitimate for <\/p>\n
the HPC to proceed on the basis that there was no impediment <\/p>\n
in the way of appointment of respondent No. 2 on the basis of <\/p>\n
the   pending   case   which   had   been   found   to   be   without   any <\/p>\n
substance.\n<\/p>\n
                                                                              36<\/span><\/p>\n
33.       We   find  no  merit  in  the  above  submissions.   Judicial <\/p>\n
review   seeks   to   ensure   that   the   statutory   duty   of  the   HPC   to <\/p>\n
recommend   under   the   proviso   to   Section   4(1)   is   performed <\/p>\n
keeping   in  mind  the   policy   and   the  purpose   of   the   2003   Act.\n<\/p>\n
We are not sitting in appeal over the opinion of the HPC.  What <\/p>\n
we have to see  is whether  relevant  material   and vital aspects <\/p>\n
having   nexus   to   the   object   of   the   2003   Act   were   taken   into <\/p>\n
account   when   the   decision   to   recommend   took   place   on   3rd <\/p>\n
September,   2010.     Appointment   to   the   post   of   the   Central <\/p>\n
Vigilance   Commissioner   must   satisfy   not   only   the   eligibility <\/p>\n
criteria of the candidate but also the decision making process <\/p>\n
of   the   recommendation   [see   para   88   of  N.   Kannadasan <\/p>\n
(supra)].     The   decision   to   recommend   has   got   to   be   an <\/p>\n
informed   decision   keeping   in   mind   the   fact   that   CVC   as   an <\/p>\n
institution   has   to   perform   an   important   function   of   vigilance <\/p>\n
administration.     If   a   statutory   body   like   HPC,   for   any   reason <\/p>\n
whatsoever,   fails   to   look   into   the   relevant   material   having <\/p>\n
nexus to the object and purpose of the 2003 Act or takes into <\/p>\n
account   irrelevant   circumstances   then   its   decision   would <\/p>\n
stand vitiated on the ground of official arbitrariness [see State <\/p>\n
                                                                              37<\/span><\/p>\n
of   Andhra   Pradesh   v.   Nalla   Raja   Reddy<\/a>  (1967)   3   SCR   28].\n<\/p>\n
Under   the   proviso   to   Section   4(1),   the   HPC   had   to   take   into <\/p>\n
consideration what is good for the institution and not what is <\/p>\n
good for the candidate [see para 93 of N. Kannadasan (supra)].\n<\/p>\n
When   institutional   integrity   is   in   question,   the   touchstone <\/p>\n
should   be   “public   interest”   which   has   got   to   be   taken   into <\/p>\n
consideration by the HPC and in such cases the HPC may not <\/p>\n
insist   upon   proof   [see   para   103   of  N.   Kannadasan  (supra)].\n<\/p>\n
We should not  be  understood to  mean that  the personal  <\/p>\n
integrity   is   not   relevant.     It   certainly   has   a   co-\n<\/p>\n
relationship   with   institutional   integrity.    The   point   to   be <\/p>\n
noted is that in the present case the entire emphasis has been <\/p>\n
placed by the CVC, the DoPT and the HPC only on the bio-data <\/p>\n
of the empanelled candidates.   None of these authorities have <\/p>\n
looked at the matter from the larger perspective of institutional <\/p>\n
integrity including institutional competence and functioning of <\/p>\n
CVC.     Moreover,   we   are   surprised   to   find   that   between   2000 <\/p>\n
and   2004   the   notings   of   DoPT   dated   26th  June,   2000,   18th <\/p>\n
January,   2001,   20th  June,   2003,   24th  February,   2004,   18th <\/p>\n
October, 2004 and 2nd  November, 2004 have all observed that <\/p>\n
                                                                            38<\/span><\/p>\n
penalty   proceedings   may   be   initiated   against   Shri   P.J.\n<\/p>\n
Thomas.     Whether   State   should   initiate   such   proceedings   or <\/p>\n
the Centre should initiate such proceedings was not relevant.\n<\/p>\n
What   is   relevant   is   that   such   notings  were   not  considered   in <\/p>\n
juxtaposition   with   the   clearance   of   CVC   granted   on   6th <\/p>\n
October,   2008.     Even   in   the   Brief   submitted   to   the   HPC   by <\/p>\n
DoPT,   there   is   no   reference   to   the   said   notings   between   the <\/p>\n
years 2000 and 2004.   Even in the C.V. of Shri P.J. Thomas, <\/p>\n
there   is   no   reference   to   the   earlier   notings   of   DoPT <\/p>\n
recommending   initiation   of   penalty   proceedings   against   Shri <\/p>\n
P.J.   Thomas.    Therefore,   even   on  personal   integrity,   the   HPC <\/p>\n
has   not   considered   the   relevant   material.     The   learned <\/p>\n
Attorney General, in his usual fairness, stated at the Bar that <\/p>\n
only   the   Curriculum   Vitae   of   each   of   the   empanelled <\/p>\n
candidates stood annexed to the agenda for the meeting of the <\/p>\n
HPC.   The fact  remains that  the HPC,  for  whatsoever reason, <\/p>\n
has   failed   to   consider   the   relevant   material   keeping   in   mind <\/p>\n
the   purpose   and   policy   of   the   2003   Act.     The   system <\/p>\n
governance   established   by   the   Constitution   is   based   on <\/p>\n
distribution of powers and functions amongst the three organs <\/p>\n
                                                                                  39<\/span><\/p>\n
of the State, one of them being the Executive whose duty is to <\/p>\n
enforce   the   laws   made   by   the   Parliament   and   administer   the <\/p>\n
country   through   various   statutory   bodies   like   CVC   which   is <\/p>\n
empowered to perform the function of vigilance administration.\n<\/p>\n
Thus,   we   are   concerned   with   the   institution   and   its   integrity <\/p>\n
including   institutional   competence   and   functioning   and   not <\/p>\n
the   desirability   of  the   candidate   alone   who  is   going  to  be   the <\/p>\n
Central   Vigilance   Commissioner,   though   personal   integrity   is <\/p>\n
an important quality.   It is the independence and impartiality <\/p>\n
of   the   institution   like   CVC   which   has   to   be   maintained   and <\/p>\n
preserved   in   larger   interest   of   the   rule   of   law   [see  Vineet <\/p>\n
Narain  (supra)].     While   making   recommendations,   the   HPC <\/p>\n
performs  a statutory  duty.    Its  duty  is  to  recommend.     While <\/p>\n
making recommendations, the criteria of the candidate being a <\/p>\n
public   servant   or   a   civil   servant   in   the   past   is   not   the   sole <\/p>\n
consideration.     The   HPC   has   to   look   at   the   record   and   take <\/p>\n
into  consideration   whether  the  candidate  would  or  would  not <\/p>\n
be   able   to   function   as   a   Central   Vigilance   Commissioner.\n<\/p>\n
Whether   the   institutional   competency   would   be   adversely <\/p>\n
affected by pending proceedings and if by that touchstone the <\/p>\n
                                                                            40<\/span><\/p>\n
candidate   stands  disqualified  then   it  shall   be   the   duty   of  the <\/p>\n
HPC not to recommend such a candidate.  In the present case <\/p>\n
apart from the pending criminal proceedings, as stated above, <\/p>\n
between   the   period   2000   and   2004   various   notings   of   DoPT <\/p>\n
recommended   disciplinary   proceedings   against   Shri   P.J.\n<\/p>\n
Thomas in respect of Palmolein case.   Those notings have not <\/p>\n
been   considered   by   the   HPC.     As   stated   above,   the   2003   Act <\/p>\n
confers autonomy and independence to the institution of CVC.\n<\/p>\n
Autonomy   has   been   conferred   so   that   the   Central   Vigilance <\/p>\n
Commissioner   could   act   without   fear   or   favour.    We   may <\/p>\n
reiterate   that  institution   is   more   important   than   an  <\/p>\n
individual.     This   is   the   test   laid   down   in   para   93   of  N.\n<\/p>\n
Kannadasan’s case (supra).  In the present case, the HPC has <\/p>\n
failed   to   take   this   test   into   consideration.                  The <\/p>\n
recommendation dated 3rd  September, 2010 of HPC is entirely <\/p>\n
premised   on   the   blanket   clearance   given   by   CVC   on   6th <\/p>\n
October,   2008   and   on   the   fact   of   respondent   No.   2   being <\/p>\n
appointed   as   Chief   Secretary   of   Kerala   on   18th  September, <\/p>\n
2007;   his   appointment   as   Secretary   of   Parliamentary   Affairs <\/p>\n
and   his   subsequent   appointment   as   Secretary,   Telecom.     In <\/p>\n
                                                                           41<\/span><\/p>\n
the process, the HPC, for whatever reasons, has failed to take <\/p>\n
into   consideration   the   pendency   of   Palmolein   case   before   the <\/p>\n
Special Judge, Thiruvananthapuram being case CC 6 of 2003;\n<\/p>\n
the   sanction   accorded   by   the   Government   of   Kerala   on   30th <\/p>\n
November,   1999   under   Section   197   Cr.P.C.   for   prosecuting <\/p>\n
inter   alia   Shri   P.J.   Thomas   for   having   committed   alleged <\/p>\n
offence under Section 120-B IPC read with Section 13(1)(d) of <\/p>\n
the Prevention of Corruption Act; the judgment of the Supreme <\/p>\n
Court dated 29th  March, 2000 in the case of  K. Karunakaran <\/p>\n
v. State of Kerala and Another in which this Court observed <\/p>\n
that,   “the   registration   of   the   FIR   against   Shri   Karunakaran <\/p>\n
and  others  cannot   be   held   to   be   the   result   of   malafides   or <\/p>\n
actuated   by   extraneous   considerations.     The   menace   of <\/p>\n
corruption cannot be permitted to be hidden under the carpet <\/p>\n
of legal technicalities and in such cases probes conducted are <\/p>\n
required   to   be   determined   on   facts   and   in   accordance   with <\/p>\n
law”.   Further, even the judgment of the Kerala High Court in <\/p>\n
Criminal   Revision   Petition   No.   430   of   2001   has   not   been <\/p>\n
considered.   It may be noted that the clearance of CVC dated <\/p>\n
6th  October, 2008 was not binding on the HPC.   However, the <\/p>\n
                                                                                    42<\/span><\/p>\n
aforestated judgment of the Supreme Court dated 29th  March, <\/p>\n
2000 in the case of  K. Karunakaran vs. State of Kerala and <\/p>\n
Another  in   Criminal   Appeal   No.   86   of   1998   was   certainly <\/p>\n
binding on the HPC and, in any event, required due weightage <\/p>\n
to   be   given   while   making   recommendation,   particularly   when <\/p>\n
the  said   judgment   had  emphasized  the  importance   of  probity <\/p>\n
in high offices.  This is what we have repeatedly emphasized in <\/p>\n
our   judgment   –  institution   is   more   important   than  <\/p>\n
individual(s).    For   the   above   reasons,   it   is   declared   that   the <\/p>\n
recommendation  made by the HPC on 3rd  September, 2010 is <\/p>\n
non-est in law.\n<\/p>\n
Is Writ
\n            of Quo Warranto invocable ?\n<\/p>\n
34.        Shri K.K. Venugopal, learned senior counsel appearing <\/p>\n
on behalf of respondent No. 2, submitted that the present case <\/p>\n
is neither a case of infringement of the statutory provisions of <\/p>\n
the   2003   Act   nor   of   the   appointment   being   contrary   to   any <\/p>\n
procedure   or   rules.       According   to   the   learned   counsel,   it   is <\/p>\n
well settled that a writ of quo warranto applies in a case when <\/p>\n
a person usurps an office and the allegation is that he has no <\/p>\n
title   to   it   or   a   legal   authority   to   hold   it.     According   to   the <\/p>\n
                                                                                    43<\/span><\/p>\n
learned  counsel for a writ  of quo warranto to be issued  there <\/p>\n
must be a clear infringement of the law.   That, in the instant <\/p>\n
case there has been no infringement of any law in the matter <\/p>\n
of appointment of respondent No. 2.\n<\/p>\n
35.        The   procedure   of   quo   warranto   confers   jurisdiction <\/p>\n
and   authority   on   the   judiciary   to   control   executive   action   in <\/p>\n
the   matter   of   making   appointments   to   public   offices   against <\/p>\n
the relevant statutory provisions.  Before a citizen can claim a <\/p>\n
writ of quo warranto he must satisfy the court inter-alia    that <\/p>\n
the   office   in   question   is   a   public   office   and   it   is   held   by   a <\/p>\n
person without legal authority and that leads to the inquiry as <\/p>\n
to   whether   the   appointment   of   the   said   person   has   been   in <\/p>\n
accordance with law or not.   A writ of quo warranto is issued <\/p>\n
to prevent a continued exercise of unlawful authority.\n<\/p>\n
36.        One   more   aspect   needs   to   be   mentioned.     In   the <\/p>\n
present petition, as rightly pointed by Shri Prashant Bhushan, <\/p>\n
learned   counsel   appearing   on   behalf   of   the   petitioner,   a <\/p>\n
declaratory  relief is also sought besides seeking  a writ of quo <\/p>\n
warranto.\n<\/p>\n
37.        At   the   outset   it   may   be   stated   that   in   the   main   writ <\/p>\n
                                                                               44<\/span><\/p>\n
petition   the   petitioner   has   prayed   for   issuance   of   any   other <\/p>\n
writ,   direction   or   order   which   this   Court   may   deem   fit   and <\/p>\n
proper   in   the   facts   and   circumstances   of   this   Case.     Thus, <\/p>\n
nothing prevents this Court, if so satisfied, from issuing a writ <\/p>\n
of declaration.  Further, as held hereinabove, recommendation <\/p>\n
of   the   HPC   and,   consequently,   the   appointment   of   Shri   P.J.\n<\/p>\n
Thomas   was   in   contravention   of   the   provisions   of   the   2003 <\/p>\n
Act, hence, we find no merit in the submissions advanced on <\/p>\n
behalf  of respondent  No. 2 on  non-maintainability  of the  writ <\/p>\n
petition.     If   public   duties   are   to   be   enforced   and   rights   and <\/p>\n
interests   are   to   be   protected,   then   the   court   may,   in <\/p>\n
furtherance of public interest, consider it necessary to inquire <\/p>\n
into the state of affairs of the subject matter of litigation in the <\/p>\n
interest   of   justice   [see  Ashok   Lanka   v.   Rishi   Dixit<\/a>  (2005)   5 <\/p>\n
SCC 598].\n<\/p>\n
38.       Keeping   in   mind   the   above   parameters,   we   may   now <\/p>\n
consider   some   of   the   judgments   on   which   reliance   has   been <\/p>\n
placed by the learned counsel for respondent No. 2.\n<\/p>\n
39.       In Ashok Kumar Yadav v. State of Haryana [(1985) 4 <\/p>\n
SCC 417], the Division Bench of the Punjab and Haryana High <\/p>\n
                                                                               45<\/span><\/p>\n
Court   had   quashed   and   set   aside   selections   made   by   the <\/p>\n
Haryana   Public   Service   Commission   to   the   Haryana   Civil <\/p>\n
Service and other Allied Services.\n<\/p>\n
40.       In   that   case   some   candidates   who   had   obtained   very <\/p>\n
high marks at the written examination failed to qualify as they <\/p>\n
had obtained poor marks in the viva voce test.   Consequently, <\/p>\n
they were not selected.   They were aggrieved by the selections <\/p>\n
made   by   Haryana   Public   Service   Commission.     Accordingly, <\/p>\n
Civil   Writ   Petition   2495   of   1983   was   filed   in   the   High   Court <\/p>\n
challenging the validity of the selections and seeking a writ for <\/p>\n
quashing   and   setting   aside   the   same.     There   were   several <\/p>\n
grounds   on   which   the   validity   of   the   selection   made   by   the <\/p>\n
Commission was assailed.  A declaration was also sought that <\/p>\n
they   were   entitled   to   be   selected.     A   collateral   attack   was <\/p>\n
launched.    It   was  alleged  that  the   Chairperson  and  members <\/p>\n
of  Public  Service  Commission   were  not  men  of  high integrity, <\/p>\n
calibre   and   qualification   and  they   were   appointed   solely   as  a <\/p>\n
matter of political patronage and hence the selections made by <\/p>\n
them were invalid.  This ground of challenge was sought to be <\/p>\n
repelled on behalf of the State of Haryana who contended that <\/p>\n
                                                                               46<\/span><\/p>\n
not only was it not competent to the Court on the existing set <\/p>\n
of  pleadings  to examine  whether  the Chairman  and members <\/p>\n
of   the   Commission   were   men   of   high   integrity,   calibre   and <\/p>\n
qualification but also there was no material at all on the basis <\/p>\n
of   which   the   Court   could   come   to   the   conclusion   that   they <\/p>\n
were men lacking in integrity, calibre or qualification.\n<\/p>\n
41.       The writ petition came to be heard by a Division Bench <\/p>\n
of the High Court of Punjab and Haryana.  The Division Bench <\/p>\n
held   that   the   Chairperson   and   members   of   the   Commission <\/p>\n
had   been   appointed   purely   on   the   basis   of   political <\/p>\n
considerations   and   that   they   did   not   satisfy   the   test   of   high <\/p>\n
integrity,   calibre   and   qualification.     The   Division   Bench   went <\/p>\n
to   the   length   of   alleging   corruption   against   the   Chairperson <\/p>\n
and members of the Commission and observed that they were <\/p>\n
not competent to validly wield the golden scale of viva voce test <\/p>\n
for   entrance   into   the   public   service.     This   Court   vide   para   9 <\/p>\n
observed that it was difficult to see how the Division Bench of <\/p>\n
the High Court could have possibly undertaken an inquiry into <\/p>\n
the   question   whether   Chairman   and   members   of   the <\/p>\n
Commission   were   men   of   integrity,   calibre   and   qualification;\n<\/p>\n
                                                                               47<\/span><\/p>\n
that   such   an   inquiry   was   totally   irrelevant   inquiry   because <\/p>\n
even   if   they   were   men   lacking   in   integrity,   calibre   and <\/p>\n
qualification, it would not make their appointments invalid so <\/p>\n
long   as   the   constitutional   and   legal   requirement   in   regard   to <\/p>\n
appointment   are   fulfilled.    It   was   held   that   none   of   the <\/p>\n
constitutional   provisions,   namely,   Article   316   and   319   stood <\/p>\n
violated   in   making   appointments   of   the   Chairperson  and <\/p>\n
members   of   the   Commission   nor   was   any   legal   provision <\/p>\n
breached.     Therefore,   the   appointments   of   the   Chairperson <\/p>\n
and   members   of   the   Commission   were   made   in   conformity <\/p>\n
with the constitutional and legal requirements, and if that be <\/p>\n
so,   it   was   beyond   the   jurisdiction   of   the   High   Court   to   hold <\/p>\n
that   such   appointments   were   invalid   on   the   ground   that   the <\/p>\n
Chairman   and   the   members   of   the   Commission   lacked <\/p>\n
integrity,   calibre   and   qualification.     The   Supreme   Court <\/p>\n
observed   that   it   passes   their   comprehension   as   to   how   the <\/p>\n
appointments   of   the   Chairman   and   members   of   the <\/p>\n
Commission   could   be   regarded   as   suffering   from   infirmity <\/p>\n
merely on the ground that in the opinion of the Division Bench <\/p>\n
of   the   High   Court   the   Chairperson   and   the   members   of   the <\/p>\n
                                                                             48<\/span><\/p>\n
Commission   were   not   men   of   integrity   or   calibre.     In   the <\/p>\n
present   case,   as   stated   hereinabove,   there   is   a   breach\/ <\/p>\n
violation of the proviso to Section 4(1) of the 2003 Act, hence, <\/p>\n
writ was maintainable.\n<\/p>\n
42.       In  R.K.   Jain   v.   Union   of   India<\/a>  [(1993)   4   SCC   119] <\/p>\n
Shri   Harish   Chandra   was   a   Senior   Vice-President   when   the <\/p>\n
question of filling up the vacancy of the President came up for <\/p>\n
consideration.   He was qualified for the post under the Rules.\n<\/p>\n
No challenge was made on that account.  Under Rule 10(1) the <\/p>\n
Central Government   was conferred the power to appoint one <\/p>\n
of  the  members  to   be  the  President.     The   validity   of  the   Rule <\/p>\n
was   not   questioned.     Thus,   the   Central   Government   was <\/p>\n
entitled   to   appoint   Shri   Harish   Chandra   as   the   President.     It <\/p>\n
was stated  that the track record of  Shri Harish  Chandra was <\/p>\n
poor.    He  was hardly  fit  to hold  the  post of  the  President.    It <\/p>\n
was   averred   that   Shri   Harish   Chandra   has   been   in   the   past <\/p>\n
proposed for appointment as a Judge of the Delhi High Court.\n<\/p>\n
His   appointment,   however,   did   not   materialize   due   to   certain <\/p>\n
adverse reports.  It was held by this Court that judicial review <\/p>\n
is concerned with whether the incumbent possessed requisite <\/p>\n
                                                                                  49<\/span><\/p>\n
qualification   for   appointment   and   the   manner   in   which   the <\/p>\n
appointment   came   to   be   made  or  the  procedure   adopted   was <\/p>\n
fair,   just   and   reasonable.     When   a   candidate   was   found <\/p>\n
qualified   and   eligible   and   is   accordingly   appointed   by   the <\/p>\n
executive   to   hold   an   office   as   a   Member   or   Vice   President   or <\/p>\n
President of a Tribunal, in judicial review the Court cannot sit <\/p>\n
over the choice of the selection.  It is for the executive to select <\/p>\n
the personnel as per law or procedure.   Shri Harish Chandra <\/p>\n
was   the   Senior   Vice   President   at   the   relevant   time.     The <\/p>\n
question of comparative merit which was the key contention of <\/p>\n
the   petitioner   could   not   be   gone   into   in   a   PIL;   that   the   writ <\/p>\n
petition   was   not   a   writ   of   quo   warranto   and   in   the <\/p>\n
circumstances the writ petition came to be dismissed.   It was <\/p>\n
held   that   even   assuming   for   the   sake   of   arguments   that   the <\/p>\n
allegations   made   by   the   petitioner   were   factually   accurate, <\/p>\n
still, this Court cannot sit in judgment  over the choice of the <\/p>\n
person made by the Central Government for appointment as a <\/p>\n
President   of   CEGAT   so   long   as   the   person   chosen   possesses <\/p>\n
the   prescribed   qualification   and   is   otherwise   eligible   for <\/p>\n
appointment.  It was held that this Court cannot interfere with <\/p>\n
                                                                              50<\/span><\/p>\n
the   appointment   of   Shri   Harish   Chandra   as   the   President   of <\/p>\n
CEGAT   on   the   ground   that   his   track   record   was   poor   or <\/p>\n
because of adverse reports on which account his appointment <\/p>\n
as a High Court Judge had not materialized.\n<\/p>\n
43.       In   the   case   of  Hari   Bansh   Lal   v.   Sahodar   Prasad <\/p>\n
Mahto<\/a>    [(2010)   9   SCC   655],   the   appointment   of   Shri   Hari <\/p>\n
Bansh   Lal   as   Chairman,   Jharkhand   State   Electricity   Board <\/p>\n
stood   challenged   on   the   ground   that   the   board   had   been <\/p>\n
constituted in an arbitrary manner; that Shri Hari Bansh Lal <\/p>\n
was a person of doubtful integrity; that he was appointed as a <\/p>\n
Chairman   without   following   the   rules   and   procedure   and   in <\/p>\n
the circumstances the appointment stood challenged.   On the <\/p>\n
question   of   maintainability,   the   Division   Bench   of   this   Court <\/p>\n
held   that   a   writ   of   quo   warranto   lies   only   when   the <\/p>\n
appointment   is   contrary   to   a   statutory   provision.     It   was <\/p>\n
further held that “suitability” of a candidate for appointment to <\/p>\n
a post is to be judged by the appointing authority and not by <\/p>\n
the court unless the appointment is contrary to the statutory <\/p>\n
rules\/provisions.   It is important to note that this Court went <\/p>\n
into   the   merits   of   the   case   and   came   to   the   conclusion   that <\/p>\n
                                                                           51<\/span><\/p>\n
there was no adequate  material to  doubt the integrity  of Shri <\/p>\n
Hari   Bansh   Lal   who   was   appointed   as   the   Chairperson   of <\/p>\n
Jharkhand   State   Electricity   Board.     This   Court   further <\/p>\n
observed   that   in   the   writ   petition   there   was   no   averment <\/p>\n
saying   that   the   appointment   was   contrary   to   statutory <\/p>\n
provisions.\n<\/p>\n
44.       As   stated   above,   we   need   to   keep   in   mind   the <\/p>\n
difference between judicial review and merit review.  As stated <\/p>\n
above, in this case the judicial determination is confined to the <\/p>\n
integrity   of   the   decision   making   process   undertaken   by   the <\/p>\n
HPC in terms of the proviso to Section 4(1) of the 2003 Act. If <\/p>\n
one   carefully   examines   the   judgment   of   this   Court   in  Ashok <\/p>\n
Kumar  Yadav’s  case   (supra)   the   facts   indicate   that   the   High <\/p>\n
Court   had   sat   in   appeal   over   the   personal   integrity   of   the <\/p>\n
Chairman   and   Members   of   the   Haryana   Public   Service <\/p>\n
Commission   in   support   of   the   collateral   attack   on   the <\/p>\n
selections   made   by   the   State   Public   Service   Commission.     In <\/p>\n
that   case,   the   High   Court   had   failed   to   keep   in   mind   the <\/p>\n
difference   between   judicial   and   merit   review.     Further,   this <\/p>\n
Court   found   that   the   appointments   of   the   Chairperson   and <\/p>\n
                                                                                 52<\/span><\/p>\n
Members   of   Haryana   Public   Service   Commission   was   in <\/p>\n
accordance   with   the   provisions   of   the   Constitution.     In   that <\/p>\n
case,   there   was   no   issue   as   to   the   legality   of   the   decision-\n<\/p>\n
making process.   On the contrary the last sentence of para 9 <\/p>\n
supports   our   above   reasoning   when   it   says   that   it   is   always <\/p>\n
open   to   the   Court   to   set   aside   the   decision   (selection)   of   the <\/p>\n
Haryana Public Service Commission if such decision is vitiated <\/p>\n
by   the   influence   of   extraneous   considerations  or   if   such <\/p>\n
selection is made in breach of the statute or the rules.\n<\/p>\n
45.       Even in  R.K. Jain’s  case (supra), this Court observed <\/p>\n
vide para 73 that judicial review is concerned with whether the <\/p>\n
incumbent   possessed   qualifications   for   the   appointment   and <\/p>\n
the   manner   in   which   the   appointment   came   to   be   made  or <\/p>\n
whether procedure adopted was fair, just and reasonable.  We <\/p>\n
reiterate that Government is not accountable to the courts for <\/p>\n
the choice made but Government is accountable to the courts <\/p>\n
in   respect   of   the   lawfulness\/legality   of   its   decisions   when <\/p>\n
impugned   under   the   judicial   review   jurisdiction.     We   do   not <\/p>\n
wish to multiply the authorities on this point.\n<\/p>\n
Appointment   of   Central   Vigilance   Commissioner   at   the <\/p>\n
                                                                            53<\/span><\/p>\n
President’s discretion<\/p>\n
46.       On   behalf   of   respondent   No.   2   it   was   submitted   that <\/p>\n
though under Section 4(1) of the 2003 Act, the appointment of <\/p>\n
Central   Vigilance   Commissioner   is   made   on   the   basis   of   the <\/p>\n
recommendation  of   a   High   Powered   Committee,   the   President <\/p>\n
of India is not to act on the  advice  of the Council of Ministers <\/p>\n
as   is   provided   in   Article   74   of   the   Constitution.     In   this <\/p>\n
connection,   it   was   submitted   that   the   exercise   of   powers   by <\/p>\n
the President in appointing respondent No. 2 has not been put <\/p>\n
in issue in the PIL, nor is there any pleading in regard to the <\/p>\n
exercise of powers by the President and in the circumstances <\/p>\n
it is not open to the petitioner to urge that the appointment is <\/p>\n
invalid.\n<\/p>\n
47.       Shri   G.E.   Vahanvati,   learned   Attorney   General <\/p>\n
appearing on behalf of Union of India, however, submitted that <\/p>\n
the   proposal   sent   after   obtaining   and   accepting   the <\/p>\n
recommendations   of   the   High   Powered   Committee   under <\/p>\n
Section   4(1)   was   binding   on   the   President.     Learned   counsel <\/p>\n
submitted   that   under   Article   74   of   the   Constitution   the <\/p>\n
                                                                                54<\/span><\/p>\n
President acts in exercise of her function on the aid and advice <\/p>\n
of   the   Council   of   Ministers   headed   by   the   Prime   Minister <\/p>\n
which advice is binding on the President subject to the proviso <\/p>\n
to   Article   74.     According   to   the   learned   counsel   Article   77   of <\/p>\n
the Constitution inter alia provides for conduct of Government <\/p>\n
Business.     Under   Article  77(3),   the  President  makes  rules  for <\/p>\n
transaction   of   Government   Business   and   for   allocation   of <\/p>\n
business   among   the   Ministers.     On   facts,   learned   Attorney <\/p>\n
General   submitted   that   under   Government   of   India <\/p>\n
(Transaction of Business) Rules, 1961 the Prime Minister had <\/p>\n
taken a decision on 3rd  September, 2010 to propose the name <\/p>\n
of   respondent   No.   2   for   appointment   as   Central   Vigilance <\/p>\n
Commissioner after the recommendation  of the High Powered <\/p>\n
Committee.     It  was  accordingly  submitted   on  behalf   of  Union <\/p>\n
of   India   that   this   advice   of   the   Prime   Minister   under   Article <\/p>\n
77(3), read with Article 74 of the Constitution is binding on the <\/p>\n
President.     That,   although   the   recommendation   of   the   High <\/p>\n
Powered   Committee   under   Section   4(1)   of   the   2003   Act   may <\/p>\n
not be binding on the President proprio vigore, however, if such <\/p>\n
recommendation   has   been   accepted   by   the   Prime   Minister, <\/p>\n
                                                                                 55<\/span><\/p>\n
who is the concerned authority under Article 77(3), and if such <\/p>\n
recommendation   is   then   forwarded   to   the   President   under <\/p>\n
Article   74,   then   the   President   is   bound   to   act   in   accordance <\/p>\n
with   the   advice   tendered.     That,   the   intention   behind   Article <\/p>\n
77(3)   is   that   it   is   physically   impossible   that   every   decision   is <\/p>\n
taken by the Council of Ministers.   The Constitution does not <\/p>\n
use   the   term   “Cabinet”.       Rules   have   been   framed   for <\/p>\n
convenient   transaction   and   allocation   of   such   business.\n<\/p>\n
Under   the   Rules   of   Business,   the   concerned   authority   is   the <\/p>\n
Prime   Minister.     The   advice   tendered   to   the   President   by   the <\/p>\n
Prime   Minister   regarding   the   appointment   of   the   Central <\/p>\n
Vigilance   Commissioner   would   be   thus   binding   on   the <\/p>\n
President.         Lastly,   it   was   submitted   that   unless   the <\/p>\n
Constitution expressly permits the exercise of discretion by the <\/p>\n
President, every decision of the President has to be on the aid <\/p>\n
and advice of Council of Ministers.\n<\/p>\n
48.       Shri   Venugopal,   learned   counsel   appearing   on   behalf <\/p>\n
of respondent No. 2 submitted that though the President has <\/p>\n
an   area   of   discretion   in   regard   to   exercise   of   certain   powers <\/p>\n
under   the   Constitution   the   Constitution   is   silent   about   the <\/p>\n
                                                                             56<\/span><\/p>\n
exercise of powers by the President\/Governor where a Statute <\/p>\n
confers   such   powers.     In   this   connection   learned   counsel <\/p>\n
placed reliance on the judgment of this Court in Bhuri Nath v.\n<\/p>\n
State   of   J   &   K  [(1997)   2   SCC   745].     In   that   case,   the <\/p>\n
appellants-Baridars challenged the constitutionality of Jammu <\/p>\n
and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 which <\/p>\n
was enacted to provide for better management, administration <\/p>\n
and   governance   of   Shri   Mata   Vaishno   Devi   Shrine   and   its <\/p>\n
endowments including the land and buildings attached to the <\/p>\n
Shrine.     By   operation   of   that   Act   the   administration, <\/p>\n
management   and   governance   of   the   Shrine   and   its   Funds <\/p>\n
stood vested in the Board.  Consequently, all rights of Baridars <\/p>\n
stood extinguished from the date of the commencement of the <\/p>\n
Act   by   operation   of   Section   19(1)   of   the   Act.     One   of   the <\/p>\n
questions   which   came   up   for   consideration   in   that   case   was <\/p>\n
that   when   the   Governor   discharges   the   functions   under   the <\/p>\n
Act, is it with the aid and advice of the Council of Ministers or <\/p>\n
whether   he  discharges   those  functions  in  his  official  capacity <\/p>\n
as   the   Governor.     This   question   arose   because   by   an   order <\/p>\n
dated 16th January, 1995, this Court had directed the Board to <\/p>\n
                                                                                57<\/span><\/p>\n
frame   a   scheme   for   rehabilitation   of   persons   engaged   in   the <\/p>\n
performance of Pooja at Shri Mata Vaishno Devi Shrine.  When <\/p>\n
that   matter   came   up   for   hearing   on   20th  March,   1995,   the <\/p>\n
Baridars stated that they did not want rehabilitation.  Instead, <\/p>\n
they preferred to receive compensation to be determined under <\/p>\n
Section 20 of the impugned Act 1988.  This Court noticed that <\/p>\n
in   the   absence   of   guidelines   for   determination   of   the <\/p>\n
compensation   by   the   Tribunal   to   be   appointed   under   Section <\/p>\n
20 it was not possible to award compensation to the Baridars.\n<\/p>\n
Consequently,   the   Supreme   Court   ordered   that   the   issue   of <\/p>\n
compensation   be   left   to   the   Governor   to   make   appropriate <\/p>\n
guidelines to determine the compensation.   Pursuant thereto, <\/p>\n
guidelines were framed by the Governor which were published <\/p>\n
in the State Gazette and placed on record on 8th May, 1995.  It <\/p>\n
is   in   this   context   that   the   question   arose   that   when   the <\/p>\n
legislature entrusted the powers under the Act to the Governor <\/p>\n
whether the Governor discharges the functions under the Act <\/p>\n
with the aid and advice of the Council of Ministers or whether <\/p>\n
he   acts   in   his   official   capacity   as   a   Governor   under   the   Act.\n<\/p>\n
After   examining   the   Scheme   of   the   1988   Act   the   Division <\/p>\n
                                                                               58<\/span><\/p>\n
Bench   of   this   Court   held   that   the   legislature   of   Jammu   & <\/p>\n
Kashmir,   while   making   the   Act   was   aware   that   similar <\/p>\n
provisions   in   the   Endowments   Act,   1966   gives   power   of   the <\/p>\n
State Government to dissolve the Board of Trustees of Tirupati <\/p>\n
Devasthanams and the Board of Trustees of other institutions.\n<\/p>\n
Thus,   it   is   clear   that   the   legislature   entrusted   the   powers <\/p>\n
under   the   Act   to   the   Governor   in   his   official   capacity.     On <\/p>\n
examination   of   the   1988   Act   this   Court   found   that   the <\/p>\n
Governor is  to preside  over  the meetings of the Board  and in <\/p>\n
his absence his nominee, a qualified Hindu, shall preside over <\/p>\n
the   functions.     That,   under   the   1988   Act   no   distinction   was <\/p>\n
made   between   the   Governor   and   the   Executive   Government.\n<\/p>\n
That, under the scheme of the 1988 Act there was nothing to <\/p>\n
indicate that the power  was given to the Council  of Ministers <\/p>\n
and the Governor was to act on its advice as executive head of <\/p>\n
the   State.     It   is   in   these   circumstances   that   this   Court   held <\/p>\n
that   while   discharging   the   functions   under   the   1988   Act   the <\/p>\n
Governor   acts  in   his  official   capacity.     In   the   same   judgment <\/p>\n
this Court has also referred to the judgment of the Full Bench <\/p>\n
of   the   Punjab   and   Haryana   High   Court   in  Hardwari   Lal   v.\n<\/p>\n
                                                                                59<\/span><\/p>\n
G.D. Tapase  [AIR 1982 P&H 439] in which a similar question <\/p>\n
arose   as   to   whether   the   Governor   in   his   capacity   as   the <\/p>\n
Chancellor   of   Maharshi   Dayanand   University   acts   under   the <\/p>\n
1975 Act in his official capacity as Chancellor or with the aid <\/p>\n
and advice of the Council of Ministers.   The Full Bench of the <\/p>\n
High   Court,   after   elaborate   consideration   of   the   provisions   of <\/p>\n
the   Act,   observed   that   under   the   Maharshi   Dayanand <\/p>\n
University Act 1975, the State Government would not interfere <\/p>\n
in   the   affairs   of   the   University.     Under   that   Act,   the   State <\/p>\n
Government   is   an   Authority   different   and   distinct   from   the <\/p>\n
authority   of   the   Chancellor.     Under   that   Act   the   State <\/p>\n
Government was not authorized to advise the Chancellor to act <\/p>\n
in a particular manner.   Under that Act the University was a <\/p>\n
statutory   body,   autonomous   in   character   and   it   had   been <\/p>\n
given   powers   exercisable   by   the   Chancellor   in   his   absolute <\/p>\n
discretion.     In   the   circumstances,   under   the   scheme   of   that <\/p>\n
Act   it   was   held   that   while   discharging   the   functions   as   a <\/p>\n
Chancellor, the Governor does everything in his discretion as a <\/p>\n
Chancellor   and   he   does   not   act   on   the   aid   and   advice   of   his <\/p>\n
Council of Ministers.  This judgment has no application to the <\/p>\n
                                                                                       60<\/span><\/p>\n
scheme   of   the   2003   Act.     As   stated   hereinabove,   the   CVC   is <\/p>\n
constituted   under   Section   3(1)   of   the   2003   Act.     The   Central <\/p>\n
Vigilance Commissioner is appointed under Section 4(1) of the <\/p>\n
2003 Act by the President by warrant under her hand and seal <\/p>\n
after obtaining the recommendation of a Committee consisting <\/p>\n
of   the   Prime   Minister   as   the   Chairperson   and   two   other <\/p>\n
Members.     As   submitted   by   the   learned   Attorney   General <\/p>\n
although   under   the   2003   Act   the   Central   Vigilance <\/p>\n
Commissioner             is         appointed         after         obtaining         the <\/p>\n
recommendation   of   the   High   Powered   Committee,   such <\/p>\n
recommendation has got to be accepted by the Prime Minister, <\/p>\n
who is the concerned authority under Article 77(3), and if such <\/p>\n
recommendation   is   forwarded   to   the   President   under   Article <\/p>\n
74, then the President is bound to act in accordance with the <\/p>\n
advice   tendered.         Further   under   the   Rules   of   Business   the <\/p>\n
concerned   authority   is   the   Prime   Minister.     Therefore,   the <\/p>\n
advice   tendered   to   the   President   by   the   Prime   Minister <\/p>\n
regarding appointment of the Central Vigilance Commissioner <\/p>\n
will   be   binding   on   the   President.     It   may   be   noted   that   the <\/p>\n
above submissions of  the  Attorney  General  find support  even <\/p>\n
                                                                           61<\/span><\/p>\n
in the  judgment  of the  Division Bench  of this Court in  Bhuri <\/p>\n
Nath’s  case (supra) which in turn has placed reliance on the <\/p>\n
judgment of this Court in  Samsher Singh v. State of Punjab <\/p>\n
[(1974) 2 SCC 831] in which a Bench of 7 Judges of this Court <\/p>\n
held   that   under   the   Cabinet   system   of   Government,   as <\/p>\n
embodied in our Constitution, the Governor is the formal Head <\/p>\n
of   the   State.     He   exercises   all   his   powers   and   functions <\/p>\n
conferred   on   him   by   or   under   the   Constitution   with   the   aid <\/p>\n
and advice of his Council of Ministers.  That, the real executive <\/p>\n
power is vested in the Council of Ministers of the Cabinet.  The <\/p>\n
same view is reiterated in R.K. Jain’s  case (supra).  However, <\/p>\n
in  Bhuri   Nath’s  case   (supra)   it   has   been   clarified   that   the <\/p>\n
Governor being the constitutional head of the State, unless he <\/p>\n
is required  to  perform the function  under  the Constitution  in <\/p>\n
his   individual   discretion,   the   performance   of   the   executive <\/p>\n
power, which is coextensive with the legislative power, is with <\/p>\n
the   aid  and   advice   of  the   Council  of  Ministers   headed   by  the <\/p>\n
Chief Minister.  Thus, we conclude that the judgment in Bhuri <\/p>\n
Nath’s  case  has no application as the scheme of the Jammu <\/p>\n
and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 as well <\/p>\n
                                                                          62<\/span><\/p>\n
as the scheme of Maharshi  Dayanand University Act, 1975 as <\/p>\n
well   as   the   scheme   of   the   various   Endowment   Acts   is   quite <\/p>\n
different from the scheme of the 2003 Act. Hence, there is no <\/p>\n
merit in the contention advanced on behalf of respondent No. <\/p>\n
2   that   in   the   matter   of   appointment   of   Central   Vigilance <\/p>\n
Commissioner   under   Section   4(1)   of   the   2003   Act   the <\/p>\n
President is not to act on the advice of the Council of Ministers <\/p>\n
as is provided in Article 74 of the Constitution.\n<\/p>\n
Unanimity   or   consensus   under   Section   4(2)   of   the   2003 <\/p>\n
Act<\/p>\n
49.      One   of   the   arguments   advanced   on   behalf   of   the <\/p>\n
petitioner before us was that the recommendation of the High <\/p>\n
Powered Committee under the proviso to Section 4(1) has to be <\/p>\n
unanimous.  It was submitted that CVC was set up under the <\/p>\n
Resolution dated 11th  February, 1964.   Under that Resolution <\/p>\n
the appointment of Central Vigilance Commissioner was to be <\/p>\n
initiated by the Cabinet Secretary and approved by the Prime <\/p>\n
Minister.     However,   the   provision   made   in   Section   4   of   the <\/p>\n
2003 Act was with a purpose, namely, to introduce an element <\/p>\n
of   bipartisanship   and   political   neutrality   in   the   process   of <\/p>\n
                                                                             63<\/span><\/p>\n
appointment   of   the   head   of  the   CVC.     The   provision  made  in <\/p>\n
Section   4   for   including   the   Leader   of   Opposition   in   the   High <\/p>\n
Powered   Committee   made   a   significant   change   from   the <\/p>\n
procedure obtaining before the enactment of the said Act.     It <\/p>\n
was further submitted that if unanimity is ruled out then the <\/p>\n
very   purpose   of   inducting   the   Leader   of   Opposition   in   the <\/p>\n
process   of   selection   will   stand   defeated   because   if   the <\/p>\n
recommendation   of   the   Committee   were   to   be   arrived   at   by <\/p>\n
majority   it   would   always   exclude   the   Leader   of   Opposition <\/p>\n
since the Prime Minister and the Home Minister will always be <\/p>\n
ad   idem.     It   was   submitted   that   one   must   give   a   purposive <\/p>\n
interpretation to the scheme of the Act.  It was submitted that <\/p>\n
under Section 9 it has been inter alia stated that all business <\/p>\n
of   the   Commission   shall,   as   far   as   possible,   be   transacted <\/p>\n
unanimously.  It was submitted that since in Vineet Narain’s <\/p>\n
case   (supra)   this   Court   had   observed   that   CVC   would   be <\/p>\n
selected   by   a   three   member   Committee,   including  the   Leader <\/p>\n
of   the   Opposition   it   was   patently   obvious   that   the   said <\/p>\n
Committee would decide by unanimity or consensus.   That, it <\/p>\n
was   no   where   stated   that   the   Committee   would   decide   by <\/p>\n
                                                                                    64<\/span><\/p>\n
majority.\n<\/p>\n
50.        We find no merit in these submissions.  To accept the <\/p>\n
contentions advanced on behalf of the petitioners would mean <\/p>\n
conferment   of   a  “veto   right”  on   one   of   the   members   of   the <\/p>\n
HPC.     To  confer   such   a  power   on  one  of  the   members   would <\/p>\n
amount   to   judicial   legislation.     Under   the   proviso   to   Section <\/p>\n
4(1)   Parliament   has   put   its   faith   in   the   High   Powered <\/p>\n
Committee   consisting   of   the   Prime   Minister,   the   minister   for <\/p>\n
Home Affairs and the Leader of the Opposition in the House of <\/p>\n
the People.  It is presumed that such High Powered Committee <\/p>\n
entrusted   with   wide   discretion   to   make   a   choice   will   exercise <\/p>\n
its powers in accordance with the 2003 Act, objectively and in <\/p>\n
a   fair   and   reasonable   manner.     It   is   well   settled   that   mere <\/p>\n
conferment of wide discretionary powers per se will not violate <\/p>\n
the   doctrine   of   reasonableness   or   equality.     The   2003   Act   is <\/p>\n
enacted with the intention that such High Powered Committee <\/p>\n
will act in a bipartisan manner and shall perform its statutory <\/p>\n
duties keeping in view the larger national interest.  Each of the <\/p>\n
Members   is   presumed   by   the   legislature   to   act   in   public <\/p>\n
interest.     On   the   other   hand,   if   veto   power   is   given   to   one   of <\/p>\n
                                                                                 65<\/span><\/p>\n
the   three   Members,   the   working   of   the   Act   would   become <\/p>\n
unworkable.  One more aspect needs to be mentioned.  Under <\/p>\n
Section   4(2)   of   the   2003   Act   it   has   been   stipulated   that   the <\/p>\n
vacancy   in   the   Committee   shall   not   invalidate   the <\/p>\n
appointment. This provision militates against the argument of <\/p>\n
the petitioner that the recommendation under Section 4 has to <\/p>\n
be unanimous.   Before concluding, we would like to quote the <\/p>\n
observations   from   the   judgment   in  Grindley   and   Another   v.\n<\/p>\n
Barker, 1 Bos. & Pul. 229, which reads as under :\n<\/p>\n
             “I   think   it   is   now  pretty   well   established,   that <\/p>\n
             where a number of persons are entrusted with <\/p>\n
             the powers not of mere private confidence, but <\/p>\n
             in some respects of a general nature and all of <\/p>\n
             them   are   regularly   assembled,  the   majority <\/p>\n
             will   conclude   the   minority,   and   their   act <\/p>\n
             will be the act of the whole.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
51.       The   Court,   while   explaining   the   raison   d’etre   behind <\/p>\n
the principle, observed :\n<\/p>\n
             “It   is   impossible   that   bodies   of   men   should <\/p>\n
             always   be   brought   to   think   alike.     There   is <\/p>\n
             often a degree of coercion, and the majority is <\/p>\n
             governed   by   the   minority,   and   vice   versa, <\/p>\n
             according to the strength of opinions, tempers, <\/p>\n
             prejudices,   and   even   interests.     We   shall   not <\/p>\n
             therefore think ourselves bound in this case by <\/p>\n
                                                                                 66<\/span><\/p>\n
          the   rule   which   holds   in   that.     I   lay   no   great <\/p>\n
          stress on the clause of the act which appoints <\/p>\n
          a majority to act in certain cases, because that <\/p>\n
          appears   to   have   been   done   for   particular <\/p>\n
          reasons   which   do   not   apply   to   the   ultimate <\/p>\n
          trial:   it   relates   only   to   the   assembling   the <\/p>\n
          searchers;   now   there   is   no   doubt   that   all   the <\/p>\n
          six   triers   must   assemble;   and              the   only <\/p>\n
          question, what they must do when assembled? <\/p>\n
          We   have   no   light   to   direct   us   in   this   part, <\/p>\n
          except   the   argument   from   the   nature   of   the <\/p>\n
          subject.     The   leather   being   subject   to   seizure <\/p>\n
          in every stage of the manufacture, the tribunal <\/p>\n
          ought   to   be   composed   of   persons   skilful   in <\/p>\n
          every   branch   of   the   manufacture.     And   I <\/p>\n
          cannot say there is no weight in the argument, <\/p>\n
          drawn   from   the   necessity   of   persons <\/p>\n
          concurring   in   the   judgments,   who   are <\/p>\n
          possessed   of   different   branches   of   knowledge, <\/p>\n
          but standing alone it is not so conclusive as to <\/p>\n
          oblige   us   to   break   through   the   general   rule; <\/p>\n
          besides,  it   is   very   much   obviated   by   this <\/p>\n
          consideration when all have assembled and <\/p>\n
          communicated to each other the necessary <\/p>\n
          information,   it   is   fitter   that   the   majority <\/p>\n
          should   decide   than   that   all   should   be <\/p>\n
          pressed to a concurrence.   If this be so, then <\/p>\n
          the   reasons   drawn   from   the   act   and   which <\/p>\n
          have been supposed to demand, that the whole <\/p>\n
          body   should   unite   in   the   judgment,   have   no <\/p>\n
          sufficient   avail,   and   consequently   the   general <\/p>\n
          rule   of   law   will   take   place;   viz.   that  the <\/p>\n
          judgment   of   four   out   of   six   being   the   whole <\/p>\n
          body   to   which   the   authority   is   delegated <\/p>\n
          r
\n            egularly   assemble   and   acting,                 is
\n                                                                        the  <\/p>\n
          judgment of the all.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
52.     Similarly,   we   would   like   to   quote   Halsbury’s   Laws   of <\/p>\n
                                                                               67<\/span><\/p>\n
England   (4th  Ed.   Re-issue),   on   this   aspect,   which   states   as <\/p>\n
under:\n<\/p>\n
                 “Where   a   power   of   a   public   nature   is <\/p>\n
                 committed   to   several   persons,   in   the   absence <\/p>\n
                 of   statutory   provision   or   implication   to   the <\/p>\n
                 contrary   the   act   of   the   majority   is   binding <\/p>\n
                 upon the minority.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
53.            In   the   circumstances,   we   find   no   merit   in   the <\/p>\n
submission made on behalf of the petitioner on this point that <\/p>\n
the   recommendation\/decision   dated   3rd  September,   2010 <\/p>\n
stood vitiated on the ground that it was not unanimous.\n<\/p>\n
Guidelines\/Directions of this Court<\/p>\n
54.            The   2003   Act   came   into   force   on   and   from   11th <\/p>\n
September, 2003.  In the present case we find non-compliance <\/p>\n
of some of the provisions of the 2003 Act.  Under Section 3(3), <\/p>\n
the   Central   Vigilance   Commissioner   and   the   Vigilance <\/p>\n
Commissioners are to be appointed from amongst persons –\n<\/p>\n
        (a)      who have been or who are in All-India Service or in <\/p>\n
                 any civil service of the Union or in a civil post under <\/p>\n
                 the   Union   having   requisite   knowledge   and <\/p>\n
                                                                                68<\/span><\/p>\n
                 experience as indicated in Section 3(3)(a); or <\/p>\n<\/blockquote>\n
       (b)       who   have   held   office   or   are   holding   office   in   a <\/p>\n
                 corporation established by or under any Central Act <\/p>\n
                 or a Central Government company and persons who <\/p>\n
                 have experience in finance including insurance and <\/p>\n
                 banking, law, vigilance and investigations.<\/p>\n<\/blockquote>\n
55.           No   reason   has   been   given   as   to   why   in   the   present <\/p>\n
case the zone of consideration stood restricted only to the civil <\/p>\n
service.  We therefore direct that :\n<\/p>\n
(i)    In   our   judgment   we   have   held   that   there   is   no <\/p>\n
       prescription   of   unanimity   or   consensus   under   Section <\/p>\n
       4(2) of the 2003 Act.  However, the question still remains <\/p>\n
       as   to   what   should   be   done   in   cases   of   difference   of <\/p>\n
       opinion   amongst   the   Members   of   the   High   Powered <\/p>\n
       Committee.  As in the present case, if one Member of the <\/p>\n
       Committee dissents that Member should give reasons for <\/p>\n
       the dissent and if the majority disagrees with the dissent, <\/p>\n
                                                                                  69<\/span><\/p>\n
         the majority shall give reasons for overruling the dissent.\n<\/p>\n
         This   will   bring   about   fairness-in-action.     Since   we   have <\/p>\n
         held   that   legality   of   the   choice   or   selection   is   open   to <\/p>\n
         judicial   review   we   are   of   the   view   that   if   the   above <\/p>\n
         methodology   is   followed   transparency   would   emerge <\/p>\n
         which  would  also   maintain  the   integrity   of  the   decision-\n<\/p>\n
         making process.\n<\/p>\n
(ii)     In future the zone of consideration should be in terms of <\/p>\n
         Section 3(3) of the 2003 Act.   It shall not be restricted to <\/p>\n
         civil servants.\n<\/p>\n
(iii)    All the civil servants and other persons empanelled shall <\/p>\n
         be   outstanding   civil   servants   or   persons   of   impeccable <\/p>\n
         integrity.\n<\/p>\n
(iv)     The   empanelment   shall   be   carried   out   on   the   basis   of <\/p>\n
         rational  criteria,   which   is   to   be   reflected   by   recording   of <\/p>\n
         reasons   and\/or   noting   akin   to   reasons   by   the <\/p>\n
         empanelling authority.\n<\/p>\n
                                                                            70<\/span><\/p>\n
(v)      The   empanelment   shall   be   carried   out   by   a   person   not <\/p>\n
         below the rank of Secretary to the Government of India in <\/p>\n
         the concerned Ministry.\n<\/p>\n
(vi)     The empanelling authority, while forwarding the names of <\/p>\n
         the   empanelled   officers\/persons,   shall   enclose   complete <\/p>\n
         information,   material   and   data   of   the   concerned <\/p>\n
         officer\/person,   whether   favourable   or   adverse.     Nothing <\/p>\n
         relevant   or   material   should   be   withheld   from   the <\/p>\n
         Selection Committee.  It will not only be useful but would <\/p>\n
         also   serve   larger   public   interest   and   enhance   public <\/p>\n
         confidence   if   the   contemporaneous   service   record   and <\/p>\n
         acts   of   outstanding   performance   of   the   officer   under <\/p>\n
         consideration,   even   with   adverse   remarks   is   specifically <\/p>\n
         brought to the notice of the Selection Committee.\n<\/p>\n
(vii)    The   Selection   Committee   may   adopt   a   fair   and <\/p>\n
         transparent   process   of   consideration   of   the   empanelled <\/p>\n
         officers.\n<\/p>\n
                                                                         71<\/span><\/p>\n
Conclusion<\/p>\n
 56.     For   the   above   reasons,   it   is   declared   that   the <\/p>\n
recommendation   dated   3rd  September,   2010   of   the   High <\/p>\n
Powered   Committee   recommending   the   name   of   Shri   P.J.\n<\/p>\n
Thomas as Central Vigilance Commissioner under the proviso <\/p>\n
to   Section   4(1)   of   the   2003   Act   is   non-est   in   law   and, <\/p>\n
consequently, the impugned appointment of Shri P.J. Thomas <\/p>\n
as Central Vigilance Commissioner is quashed.\n<\/p>\n
57.      The   writ   petitions   are   accordingly   allowed   with   no <\/p>\n
order as to costs.\n<\/p>\n
                                      …………………………………CJI<\/p>\n
                                         (S. H. Kapadia)<\/p>\n
                                      …………………………………….J.\n<\/p>\n
                                         (K.S. Panicker Radhakrishnan)<\/p>\n
                                      …………………………………….J.\n<\/p>\n
                                         (Swatanter Kumar)<\/p>\n
New Delhi; <\/p>\n
\n\nMarch 3, 2011\n\n \n\n\n72<\/span>\n\n\n                                                                 73<\/span>\n\nITEM NO.1A            COURT NO.1             SECTION PIL\n\n            S U P R E M E   C O U R T   O F   I N D I A\n                         RECORD OF PROCEEDINGS\n\n               WRIT PETITION (CIVIL) NO.348 OF 2010\n\nCENTRE FOR PIL & ANR.                       Petitioner(s)\n\n                 VERSUS\n\nUNION OF INDIA & ANR.                       Respondent(s)\n\nWith Writ Petition (C) No.355 of 2010\n\n<\/pre>\n
Date: 03\/03\/2011  These Matters were called on for
\n                  judgement today.\n<\/p>\n
For Petitioner(s)          Mr. Prashant Bhushan,Adv.
\nIn WP 348\/2010:            Mr. Pranav Sachdeva,Adv.\n<\/p>\n
In WP 355\/2010:            Mr. Siddharth Bhatnagar,Adv.\n<\/p>\n
                           Mr. Prashant Kumar,Adv.\n<\/p>\n
                           Mr. B.S. Iyenger,Adv.\n<\/p>\n
                           for M\/s. AP & J Chambers,Advs.\n<\/p>\n
For Respondent(s)          Ms. Indira Jaising,ASG
\n                           Mr. Devadatt Kamat,Adv.\n<\/p>\n
                           Mr. T.A. Khan,Adv.\n<\/p>\n
                           Mr. Anoopam N. Prasad,Adv.\n<\/p>\n
                           Mr. Nishanth Patil,Adv.\n<\/p>\n
                           Mr. Rohit Sharma,Adv.\n<\/p>\n
                           Ms. Naila Jung,Adv.\n<\/p>\n
                           Ms. Anil Katiyar,Adv.\n<\/p>\n
                           Mr. S.N. Terdal,Adv.\n<\/p>\n
In WP 348\/2010:            Mr. K.K. Venugopal,Sr.Adv.\n<\/p>\n
                           Mr. Gopal Sankaranarayanan,Adv.\n<\/p>\n
                           Mr. Wills Mathews,Adv.\n<\/p>\n
                           Mr. D.K. Tiwari,Adv.\n<\/p>\n
                           Mr. Rajdipa Behura,Adv.\n<\/p>\n
                           Mr. Shyam Mohan,Adv.\n<\/p>\n
                           Mr. A. Venayagam Balan,Adv.\n<\/p>\n
In WP 355\/2010:            Mr. K.K. Venugopal,Sr.Adv.\n<\/p>\n
                           Mr. Wills Mathews,Adv.\n<\/p>\n
                                                      ….2\/-\n<\/p>\n
                                                                     74<\/span><\/p>\n
                               – 2 –\n<\/p>\n
For Intervenor:            Mr. Braj Kishore Mishra,Adv.\n<\/p>\n
                           Ms. Aparna Jha,Adv.\n<\/p>\n
                           Mr. Vikas Malhotra,Adv.\n<\/p>\n
                           Mr. M.P. Sahay,Adv.\n<\/p>\n
                           Mr. Abhishek Yadav,Adv.\n<\/p>\n
                           Mr. Vikram,Adv.\n<\/p>\n
              Hon’ble   the   Chief   Justice   pronounced   the
\n     judgement   of   the   Bench   comprising   His   Lordship,
\n     Hon’ble   Mr.   Justice   K.S.   Panicker   Radhakrishnan
\n     and Hon’ble Mr. Justice Swatanter Kumar.\n<\/p>\n
              The   writ   petitions   are   allowed   with   no
\n     order as to costs.\n<\/p>\n
              Application for intervention is dismissed.\n<\/p>\n
          [ T.I. Rajput ]                [ Madhu Saxena ]\n           A.R.-cum-P.S.                    Assistant Registrar \n\n<\/pre>\n
        [Signed reportable judgment is placed on the file.]<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Centre For Pil & Anr vs Union Of India & Anr on 3 March, 2011 Bench: S.H. Kapadia, K.S. Panicker Radhakrishnan, Swatanter Kumar 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) No. 348 OF 2010 Centre for PIL & Anr. … Petitioner(s) versus Union of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-246834","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCentre For Pil & Anr vs Union Of India & Anr on 3 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/centre-for-pil-anr-vs-union-of-india-anr-on-3-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Centre For Pil & Anr vs Union Of India & Anr on 3 March, 2011 - 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