Centre for PIL & anr. v. Union of India & anr.
Two writ petitions were filed in the Supreme Court under Article 32 of the Constitution of India giving rise to a substantial question of law and of public importance as to the legality of the appointment of Shri P.J. Thomas as Central Vigilance Commissioner under Section 4(1) of the Central Vigilance Commission Act, 2003 (“2003 Act” for short).
On 3rd September, 2010, a High Powered Committee (HPC), duly constituted under the proviso to Section 4(1) of the 2003 Act, recommended the name of Shri P.J. Thomas for appointment to the post of Central Vigilance Commissioner. The validity of the recommendation fell for judicial scrutiny in the present case. Shri P.J. Thomas was appointed to the Indian Administrative Service (Kerala Cadre) 1973 batch where he served in different capacities with the State Government including as Secretary, Department of Food and Civil Supplies, State of Kerala in the year 1991.
The Supreme Court rejected the submission advanced on behalf of Union of India and P.J. Thomas that once the CVC clearance had been granted on 6th October, 2008 and once the candidate stood empanelled for appointment at the Centre and in fact stood appointed as Secretary, Parliamentary Affairs and, thereafter, Secretary Telecom, it was legitimate for the HPC to proceed on the basis that there was no impediment in the way of appointment of Thomas on the basis of the pending case which had been found to be without any substance. The Supreme Court observed that it had to see whether relevant material and vital aspects having nexus to the object of the 2003 Act were taken into account when the decision to recommend took place on 3rd September, 2010. It further observed that appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. The decision to recommend got to be an informed decision keeping in mind the fact that CVC as an institution had to perform an important function of vigilance administration. If a statutory body like HPC, for any reason whatsoever, failed to look into the relevant material having nexus to the object and purpose of the 2003 Act or took into account irrelevant circumstances then its decision would stand vitiated on the ground of official arbitrariness (State of Andhra Pradesh v. Nalla Raja Reddy (1967) 3 SCR 28). Under the proviso to Section 4(1), the HPC had to take into consideration what is good for the institution and not what is good for the candidate. When institutional integrity was in question, the touchstone should be “public interest” which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof. The Supreme Court observed that in the present case the entire emphasis had been placed by the CVC, the DoPT and the HPC only on the bio-data of the empanelled candidates. None of the authorities had looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of CVC. The Supreme Court observed that it was surprised that though several notings of DoPT had all observed that penalty proceedings may be initiated against Shri P.J. Thomas, yet such notings were not considered in juxtaposition with the clearance of CVC granted on 6th October, 2008. Even on personal integrity, the HPC did not consider the relevant material.
The Court observed that it was concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity was also held to be an important quality. It reiterated that the independence and impartiality of the institution like CVC which had to be maintained and preserved in larger interest of the rule of law [Vineet Narain case]. It further held that while making recommendations, the HPC performed a statutory duty. Its duty was to recommend. While making recommendations, the criteria of the candidate being a public servant or a civil servant in the past was not the sole consideration. The HPC had to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner. Whether the institutional competency would be adversely affected by pending proceedings and if by that touchstone the candidate stand disqualified then it should be the duty of the HPC not to recommend such a candidate. In the present case apart from the pending criminal proceedings, as stated above, between the period 2000 and 2004 various notings of DoPT recommended disciplinary proceedings against Thomas in respect of Palmolein case. Those notings had not been considered by the HPC. The 2003 Act confer autonomy and independence to the institution of CVC. Autonomy had been conferred so that the Central Vigilance Commissioner could act without fear or favour. In the present case, the HPC had failed to take this test into consideration. The recommendation dated 3rd September, 2010 of HPC was entirely premised on the blanket clearance given by CVC on 6th October, 2008 and on the fact of Thomas being appointed as Chief Secretary of Kerala on 18th September, 2007; his appointment as Secretary of Parliamentary Affairs and his subsequent appointment as Secretary, Telecom. In the process, the HPC, for whatever reasons, failed to take into consideration the pendency of Palmolein case before the Special Judge, Thiruvananthapuram being case CC 6 of 2003; the sanction accorded by the Government of Kerala on 30th November, 1999 under Section 197 Cr.P.C. for prosecuting inter alia Shri P.J. Thomas for having committed alleged offence under Section 120-B IPC read with Section 13(1)(d) of the Prevention of Corruption Act; the judgment of the Supreme Court dated 29th March, 2000 in the case of K. Karunakaran v. State of Kerala and Another. Even the judgment of the Kerala High Court in Criminal Revision Petition No. 430 of 2001 was not considered. The judgment of the Supreme Court dated 29th March, 2000 in the case of K. Karunakaran vs. State of Kerala and Another in Criminal Appeal No. 86 of 1998 was binding on the HPC and, required due weightage to be given while making recommendation, particularly when the said judgment had emphasized the importance of probity in high offices.
For the above reasons, the Supreme Court declared that the recommendation made by the HPC on 3rd September, 2010 was non-est in law. It reiterated that though Government was not accountable to the courts for the choice made, yet Government was accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction.
The Supreme Court rejected the submission advanced on behalf of the petitioner that the recommendation of the High Powered Committee under the proviso to Section 4(1) had to be unanimous. It held that to accept the contentions advanced on behalf of the petitioners would mean conferment of a “veto right” on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation.
The Supreme Court finally directed that :
(i) There was no prescription of unanimity or consensus under Section 4(2) of the 2003 Act. Regarding what should be done in cases of difference of opinion amongst the Members of the High Powered Committee, if one Member of the Committee dissent, that Member should give reasons for the dissent and if the majority disagreed with the dissent, the majority had to give reasons for overruling the dissent.
(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It should not be restricted to civil servants.
(iii) All the civil servants and other persons empanelled should be outstanding civil servants or persons of impeccable integrity.
(iv) The empanelment should be carried out on the basis of rational criteria, which has to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.
(v) The empanelment should be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.
(vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, should enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant material should be withheld from the Selection Committee.
(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.
The Supreme Court thus declared that the recommendation dated 3rd September, 2010 of the High Powered Committee recommending the name of Shri P.J. Thomas as Central Vigilance Commissioner under the proviso to Section 4(1) of the 2003 Act was non-est in law and, consequently, the impugned appointment of Shri P.J. Thomas as Central Vigilance Commissioner was quashed.