# • (2011] 4 S.C.R. 445 CENTRE FOR PIL & ANR v. UNION OF INDIA & ANR

- **Citation:** [2011] 4 S.C.R. 445
- **Court:** Supreme Court of India
- **Decided:** 2011-03-03
- **Bench:** S.H. Kapadia, K.S. Radhakrishnan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2011-4-s-c-r-445-centre-for-pil-anr-v-union-of-india-anr-27626
- **Pages:** 64

## Headnote

Central Vigilance Commission Act, 2003:
Object of its enactment - Discussed.
s.4(1), proviso - Appointment of respondent no.2 (Shri
A
B
c
P.J. Thomas) as Central Vigilance Commissioner on
recommendation of the High Powered Committee - Held: Is
non est in law and is quashed.
D
s.4(1), proviso - Recommendation under - Primary
consideration for making the recommendation - Duty of the
High Powered Committee (HPC) - Held: If the institutional
competency would be adversely affected by pending criminal
E
proceedings against the candidate and by that touchstone the
candidate stands disqualified then it is the duty of the HPC
not to recommend such a candidate - While making the
recommendation, the HPC performs a statutory duty -
The
word 'recommendation' in the proviso stands for an informed
F
decision to be taken by the HPC on the basis of a
consideration of relevant material keeping in mind the
purpose, object and policy of the 2003 Act - The object and
purpose of the 2003 Act is to have an integrity Institution like
eve which is in-charge of vigilance administration and which
G
constitutes an anti-corruption mechanism - The 2003 Act
confers autonomy and independence to the institution of eve
so that the Central Vigilance Commissioner could act without
fear or favour - The institution is more important than an
445
H
•
446
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A individual - While making the recommendations, the service
conditions of the candidate being a public servant or civil
servant in the past is not the sole criteria - The HPC must
also take into consideration the question of institutional
competency into account - The HPC has, therefore, to take
B into consideration the values, independence and impartiality
of the Institution - In the instant case, this vital aspect was not
taken into account by the HPC while recommending the name
of respondent no.2 (Shri P.J. Thomas) as Central Vigilance
Commissioner - The entire emphasis was placed by the
c eve, the DoPT and the HPC only on the bio-data of the
empanelled candidates - None of these authorities looked
at the matter from the larger perspective of institutional
integrity including institutional competence and functioning of
CVC - All the notings of DoPT observed that penalty
0 proceedings may be initiated against respondent no.2 -
However, such notings were not considered in juxtaposition
with the clearance of CVC - Even in the brief submitted to
the 1-IPC by DoPT, there was no reference to the said notings
- In the C. V. of respondent no.2 also there was no reference
E to the earlier notings of DoPT recommending initiation of
penalty proceedings against him -
Therefore, even on
personal integrity, the HPC did not consider the relevant
material and, therefore, the recommendation of name of
respondent no. 2 was non est in law - Penal Code, 1860 -
s.120-B - Prevention of Corruption Act - s.13(1)(d).
F
s.4(1) - Advice tendered to the President by the Prime
Minister regarding appointment of the Central Vigilance
Commissioner - Binding effect of - Held: Central Vigilance
Commissioner is appointed uls.4(1) by the President by
G warrant under her hand and seal after obtaining the
recommendation of the HPC, consisting of the Prime Minister
as {he Chairperson and two other Members - Although under
the Act, the Central Vigilance Commissioner is appointed
after obtaining the recommendation of the HPC, such
H recommendation has got to be accepted by the Prime
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
447
ANR.
Minister, who is the concerned authority u/Article 77(3), and A
if such recommendation is forwarded to the President ul
Article 7 4, then the President is bound to act in accordance
with the advice tendered - Further under the Rules of
Business the concerned authority is the Prime Minister -
Therefore, the advice tendered to the President by the Prime
B
Minister regarding appointment of the Central Vigilance
Commissioner will be binding on the President - Constitution
of India, 1950

## Text

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•
(2011] 4 S.C.R. 445
CENTRE FOR PIL & ANR.
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 348 of 2010)
MARCH 3, 2011
[S.H. KAPADIA, CJI, K.S. RADHAKRISHNAN AND
SWATANTER KUMAR, JJ.]
Central Vigilance Commission Act, 2003:
Object of its enactment - Discussed.
s.4(1), proviso - Appointment of respondent no.2 (Shri
A
B
c
P.J. Thomas) as Central Vigilance Commissioner on
recommendation of the High Powered Committee - Held: Is
non est in law and is quashed.
D
s.4(1), proviso - Recommendation under - Primary
consideration for making the recommendation - Duty of the
High Powered Committee (HPC) - Held: If the institutional
competency would be adversely affected by pending criminal
E
proceedings against the candidate and by that touchstone the
candidate stands disqualified then it is the duty of the HPC
not to recommend such a candidate - While making the
recommendation, the HPC performs a statutory duty -
The
word 'recommendation' in the proviso stands for an informed
F
decision to be taken by the HPC on the basis of a
consideration of relevant material keeping in mind the
purpose, object and policy of the 2003 Act - The object and
purpose of the 2003 Act is to have an integrity Institution like
eve which is in-charge of vigilance administration and which
G
constitutes an anti-corruption mechanism - The 2003 Act
confers autonomy and independence to the institution of eve
so that the Central Vigilance Commissioner could act without
fear or favour - The institution is more important than an
445
H
•
446
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A individual - While making the recommendations, the service
conditions of the candidate being a public servant or civil
servant in the past is not the sole criteria - The HPC must
also take into consideration the question of institutional
competency into account - The HPC has, therefore, to take
B into consideration the values, independence and impartiality
of the Institution - In the instant case, this vital aspect was not
taken into account by the HPC while recommending the name
of respondent no.2 (Shri P.J. Thomas) as Central Vigilance
Commissioner - The entire emphasis was placed by the
c eve, the DoPT and the HPC only on the bio-data of the
empanelled candidates - None of these authorities looked
at the matter from the larger perspective of institutional
integrity including institutional competence and functioning of
CVC - All the notings of DoPT observed that penalty
0 proceedings may be initiated against respondent no.2 -
However, such notings were not considered in juxtaposition
with the clearance of CVC - Even in the brief submitted to
the 1-IPC by DoPT, there was no reference to the said notings
- In the C. V. of respondent no.2 also there was no reference
E to the earlier notings of DoPT recommending initiation of
penalty proceedings against him -
Therefore, even on
personal integrity, the HPC did not consider the relevant
material and, therefore, the recommendation of name of
respondent no. 2 was non est in law - Penal Code, 1860 -
s.120-B - Prevention of Corruption Act - s.13(1)(d).
F
s.4(1) - Advice tendered to the President by the Prime
Minister regarding appointment of the Central Vigilance
Commissioner - Binding effect of - Held: Central Vigilance
Commissioner is appointed uls.4(1) by the President by
G warrant under her hand and seal after obtaining the
recommendation of the HPC, consisting of the Prime Minister
as {he Chairperson and two other Members - Although under
the Act, the Central Vigilance Commissioner is appointed
after obtaining the recommendation of the HPC, such
H recommendation has got to be accepted by the Prime
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
447
ANR.
Minister, who is the concerned authority u/Article 77(3), and A
if such recommendation is forwarded to the President ul
Article 7 4, then the President is bound to act in accordance
with the advice tendered - Further under the Rules of
Business the concerned authority is the Prime Minister -
Therefore, the advice tendered to the President by the Prime
B
Minister regarding appointment of the Central Vigilance
Commissioner will be binding on the President - Constitution
of India, 1950 - Articles 7 4, 77.
s.4(1), proviso, s.4(2) - Unanimity or consensus uls.4(2)
- Held: Under proviso to s.4(1), Parliament has put its faith
C
in the HPC consisting of the Prime Minister, the Minister for
Home Affairs and the Leader of the Opposition in the House
of the People -
Such Committee, entrusted with wide
discretion to make a choice, is expected to exercise its powers
in accordance with toe Act, objectively and in a fair and D
reasonable manner - It is well settled that mere conferment
of wide discretionary powers per se will not violate the doctrine
of reasonableness or equality - The 2003 Act is enacted with
the intentiop, that such Committee will act in a bipartisan ·
manner and shall perform its statutory duties keeping in view
E
the larger national interest - Each member is presumed by
the legislature to act in public interest - If veto power is given
to one of the three Members, the working of the Act would
become unworkable - Moreover, s. 4(2) stipulates that the
vacancy in the Committee shall not invalidate the
F
appointment - This provision militates against the argument
. of the petitioner that the recommendation uls.4 has to be
unanimous -
To accept such contention would mean
conferment.pf,a "veto right" on one of the members of the HPC
- To confer such a power on one of the members would
G
amount to judicial legislation - Therefore, it is incorrect to
state that the recommendation/decision of name of
respondent no.2 (P.J. Thomas) stood vitiated on the ground
that it was not unanimous - Doctrine of reasonableness or
equality.
H
448
SUPREME COURT REPORTS
[2011) 4 S.C.R.
A
Chapter Ill - Central Vigilance Commission - Functions
B
and powers of - Discussed.
s. 3(3)(a) -
Appointment of Central Vigilance
Commissioner, Vigilance Commissioner - Eligibility criteria
- Discussed.
Setting up of CVC - Historical background and purpose
behind the setting up of CVC - Discussed.
Concept of integrity institution - Held: Exists in Australia,
C US, UK, Canada, Hongkong - CVC is an integrity institution
- It is an institution statutorily created under the Act - It is to
supervise vigilance administration - The Act provides for a
mechanism by which the eve retains control over CBI - It is
given autonomy and insulation from external influences under
0 the Act.
s. 4(2) - Appointment of Central Vigilance Commissioner,
Vigilance Commissioner -
Guidelines -
There is no
prescription of unanimity or consensus uls. 4(2) - Therefore,
if one Member of the Committee dissents, that Member
E should give reasons for the dissent and if the majority
disagrees with the dissent, ·:ie majority shall give reasons for
overruling the dissent - This would bring about fairness-inaction - In future, the zone of consideration should be in terms
of s.3(3) - It shall not be restricted to civil servants - All the
F civil servants and other persons empanelled shall be
outstanding civil servants or persons of impeccable integrity
-
The empanelment shall be carried out on the basis of
rational criteria, which is to be reflected by recording of reasons
and/or noting akin to reasons by the empanelling authority -
G The empanelment shall be carried out by a person not below
the rank of Secretary to the Government of India in the
concerned Ministry -
The empanelling authority, while
forwarding the names of the empanelled officers/persons,
shall enclose complete information, material and data of the
H
•
•
CENTRE FOR PIL & ANR. v. UNION OF INDIA &
449
ANR.
concerned officer/person, whether favourable or adverse -
A
Nothing relevant should be withheld from the Selection
Committee - It would not only be useful but would also serve
larger public interest and enhance public confidence if the
contemporaneous service record and acts of outstanding
performance of the officer under consideration, even with
B
adverse remarks is specifically brought to the notice of the
Selection Committee - The Selection Committee may adopt
a fair and transparent process of consideration of the
empanelled officers - Guidelines.
Administrative law: Judicial review and merit review -
C
Difference between - Held: Government is not accountable
Jo the courts for the choice made but Government is
accountable to the courts in respect of the lawfulness/legality
of its decisions when impugned under the judicial review
jurisdiction.
D
Writ: Writ of Quo Warranto - Appointment of respondent
no.2 (Shri P.J. Thomas) as Central Vigilance Commissioner
on recommendation of the High Powered Committee - Writ
of Quo Warranto challenging the appointment - Held: The
E
procedure of quo warranto confers jurisdiction and authority
on the judiciary to control executive action in the matter of
making appointments to public offices against the relevant
statutory provisions - Before a citizen can claim a writ of quo
warranto, he must satisfy the court inter-alia that the office in
F
question is a public office and it is held by a person without
legal authority and that leads to the inquiry as to whether the
appointment of the said person has been in accordance with
law or not - A writ of quo warranto is issued to prevent a
continued exercise of unlawful authority - In the instant
G
petition, a declaratory relief was sought besides seeking a writ
of quo warranto - In the main writ petition, the petitioner prayed
for issuance of any other writ, direction or order which the Court
may deem fit and proper in the facts and circumstances of
the case - Thus, nothing prevented the Court from issuing a
H
e
450
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A writ of declaration - Further, recommendation of the HPC and,
consequently, the appointment of respondent no. 2 was in
contravention of the provisions of the 2003 Act - If public
duties are to be enforced and rights and interests are to be
protected, then the court may, in furtherance of public interest,
B consider it necessary to inquire into the state of affairs of the
subject matter of litigation in the interest of justice - Central
Vigilance Commission Act, 2003.
Words and phrases: Word 'recommendation' -
C Connotation of, in the context of Central Vigilance
Commission Act, 2003.
In the instant writ petitions filed under Article 32 of
the Constitution of India, the legality of the appointment
of respondent no.2 (Shri P.J. Thomas) as the Central
D Vigilance Commissioner under Section 4(1) of the Central
Vigilance Commission Act, 2003 was challenged.
Respondent no.2 was appointed to IAS (Kerala
Cadre), 1973 batch where he served in different
E capacities with the State Government. During that period,
15000 MT of palmolein oil was imported. There was
allegation of irregularities committed in the said import.
An FIR was registered against the then Chief Minister and
six others including respondent no.2 under Section 13(2)
F r.w. Section 13(1)(d) of the Prevention of Corruption Act,
1988 and Section 1208, IPC. The State Government
accorded sanction for prosecution. In the charge sheet
before the trial court, definite role was attributed to
respondent no.2. On 18th January, 2001, a note was put
that departmental enquiry should be held against
G respondent no.2 and another. On 3rd June, 2003, the eve
conveyed its opinion to the DOPT that DOPT should
initiate major penalty proceedings against respondent
no.2. The matter was still kept pending despite receipt of
opinion of the eve. In the meanwhile, the State of Kerala
H
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
451
ANR.
by letter dated 24th January, 2005, wrote to the DOPT its
A
desire to withdraw the request for according sanction for
prosecution of the officers including respondent no.2.
However, on 10th October, 2006, State Government again
wrote a letter to Government of India informing them
about its decision to continue the prosecution launched
8
by it and it sought to withdraw letter dated 24th January,
2005. By order dated 18th September, 2007, respondent
no.2 was appointed as the Chief Secretary. There were
at least six notings of DoPT between 26th June, 2000 and
2nd November, 2004 which recommended initiation of C
penalty proceedings against respondent no.2 and yet
clearance was given by CVC on 6th October, 2008 and
in the Brief prepared by DoPT dated 1st September, 2010
and placed before HPC, there was no reference to the
earlier notings of the then DoPT nor any reason was
0
given as to why eve had changed its views while
granting vigilance clearance on 6th October, 2008. On
23rd January, 2009, respondent no.2 was appointed as
Secretary, Parliamentary Affairs to the Government of
India. The DoPT empanelled three officers on 1st
September, 2010 for the post of Central Vigilance
E
Commissioner. The meeting of the HPC consisting of the
Prime Minister, the Home Minister and the Leader of the
Opposition was held on 3rd September, 2010 and
disagreement was recorded by the Leader of the
Opposition. Despite the disagreement, the name of
F
respondent no.2 was recommended for appointment to
the post of Central Vigilance Commissioner by majority.
A note was thereafter put up with the recommendation
of the HPC and placed before the Prime Minister which
was approved on the same day. On 4th September, 2010,
G
the same note was submitted to the President who also
approved it on the same day. Consequently, respondent
no.2 was appointed as Central Vigilance Commissioner.
The instant writ petitions were filed challenging the
legality of the appointment of respondent no.2.
H
452
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A
Allowing the writ petitions, the Court
HELD: 1. The recommendation dated 3rd September,
2010 of the High Powered Committee recommending the
name of respondent no.2 as Central Vigilance
Commissioner under the proviso to Section 4(1) of the
8 Central Vigilance Commission Act, 2003 is non est in law
and, consequently, the impugned appointment of
respondent no.2 as Central Vigilance Commissioner is
quashed. [Para 56] (507-H; 508-A]
C
2. Setting-up of CVC: Vigilance is an integral part of
all government institutions. Anti-corruption measures are
the responsibility of the Central Government. Towards this
end, the Government set up the following departments :
(i) CBI (ii) Administrative Vigilance Division in DoPT (iii)
o Domestic Vigilance Units in the Ministries/ Departments,
Government companies, Government Corporations,
nationalized banks and PSUs (iv) CVC.Thus, eve as an
integrity institution was set up by the Government of India
in 1964 vide Government Resolution pursuant to the
E recommendations of Santhanam Committee. However, it
was not a statutory body at that time. According to the
recommendations of the Santhanam Committee, CVC, in
its functions, was supposed to be independent of the
executive. The sole purpose behind setting up of the
F eve was to improve the vigilance administration of the
country. In September, 1997, the Government of India
established the Independent Review Committee to
monitor the functioning of CVC and to examine the
working of CBI and the Enforcement Directorate.
Independent Review Committee vide its report of
G December, 1997 suggested that CVC be given a statutory
status. It also recommended that the selection of Central
Vigilance Commissioner shall be made by a High
Powered Committee comprising of the Prime Minister, the
Home Minister and the Leader of Opposition in Lok
H
•
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
453
ANR.
Sabha. It also recommended that the appointment shall
A
be made by the President of India on the specific
recommendations made by the HPC. That, the eve shall
be responsible for the efficient functioning of CBI; CBI
shall report to eve about cases taken up for
investigations; the appointment of CBI Director shall be
B
by a Committee headed by the Central Vigilance
Commissioner; the Central Vigilance Commissioner shall
have a minimum fixed tenure and that a Committee
headed by the Central Vigilance Commissioner shall
prepare a panel for appointment of Director of c
Enforcement. On 18th December, 1997, the judgment in
the case of *Vineet Narain was delivered. Exercising
authority under Article 32 read with Article 142, this Court
in order to implement an important Constitutional
principle of the rule of law ordered that CVC shall be
0
given a statutory status as recommended by
Independent Review Committee. The judgment in *Vineet
Narain's case was followed by the 1999 Ordinance under
which CVC became a multi-member Commission headed
by Central Vigilance Commissioner. The 1999 Ordinance
E
conferred statutory status on CVC. The said Ordinance
incorporated the directions given by this Court in *Vineet
Narain's case. The 1999 Ordinance stood promulgated to
improve the vigilance administration and to create a
culture of integrity as far as government administration
is concerned. The said 1999 Ordinance was ultimately
F
replaced by the enactment of the 2003 Act which came
into force with effect from 11th September, 2003.[ [Para
20-25) [476-C-H; 477-A-H; 478-A]
*Vineet Narain v. Union of India (1998) 1 SCC 226 -
G
relied on.
3.1. Analysis of the 2003 Act: The 2003 Act was
enacted to provide for the constitution of a Central
Vigilance Commission as an institution to inquire or H
454
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A cause inquiries to be conducted into offences alleged to
have been committed under the Prevention of Corruption
Act, 1988 by certain categories of public servants of the
Central Government, corporations established by or
under any Central Act, Government companies, societies
s and local authorities owned or controlled by the Central
Government and for matters ..connected therewith or
incidental thereto. In Australia, US, UK and Canada, there
exists a concept of integrity institutions. Hongkong has
an Independent Commission against corruption. In
c Western Australia, there exists a statutory Corruption
Commission. Queensland has Misconduct Commission.
In New South Wales, there is Police Integrity
Commission. All these come within the category of
· integrity institutions. CVC is an integrity institution. The
D 2003 Act gives a statutory status to CVC. It stands
established as an Institution. eve stands established to
inquire into offences alleged to have been committed
under the Prevention of Corruption Act, 1988 by certain
categories of public servants. Under Section 3(3)(a), the
E Central Vigilance Commissioner and the Vigilance
Commissioners are to be appointed from amongst
persons who have been or are in All India Service or in
any civil service of the Union or who are in a civil post
under the Union having knowledge and experience in the
matters relating to vigilance, policy making and
F administration including police administration. The
underlined words "who have been or who are" in Section
3(3)(a) refer to the person holding office of a civil servant
or who has held such office. The said words 'who have
been or who are' indicate the eligibility criteria and further
G they indicate that such past or present eligible persons
should be without any blemish whatsoever and that they
should not be appointed merely because they are eligible
to be considered for the post. One more aspect which is
highlighted is that the constitution of eve as a statutory
H
•
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CENTRE FOR PIL & ANR. v. UNION OF INDIA &
455
ANR.
body under Section 3 shows that CVC is an Institution.
A
The key word is "Institution". The emphasis on the key
word is for the simple reason that in the instant case, the
recommending authority (High Powered Committee) had
gone by personal integrity of the officers empanelled and
not by institutional integrity. [Paras 26, 28] [478-B-E; 484B
E-H; 485-A-B]
N. Kannadasan v. Ajoy Khose and Others (2009) 7 SCC
1 - relied on.
3.2. Section 4 refers to appointment of Central
C
Vigilance Commissioner and Vigilance Commissioners.
Under Section 4(1 ), they are to be appointed by the
President by warrant under her hand and seal. Sectio11
4(1) indicates the importance of the post. Section 4(1) has
a proviso. Every appointment under Section 4(1) is to be
'.O
made after obtaining the recommendation of a committee
consisting of the Prime Minister as Chairperson; the
Minister of Home Affairs as Member and the Leader of the
Opposition in the House of the People as Member. The
key word in the proviso is the word "recommendation".
E
While making the recommendation, the HPC performs a
statutory duty. The impugned recommendation dated 3rd
September, 2010 is in exercise of the statutory power
vested in the HPC under the proviso to Section 4(1 ). The
post of Central Vigilance Commissioner is a statutory
F
post. The Commissioner performs statutory functions as
enumerated in Section 8. The word 'recommendation' in
the proviso stands for an informed decision to be taken
by the HPC on the basis of a consideration of relevant
material keeping in mind the purpose, object and policy G
of the 2003 Act. The object and purpose of the 2003 Act
is to have an integrity Institution like CVC which is in
charge of vigilance administration and which constitutes
an anti-corruption mechanism. In its functions, the CVC
is similar to Election Commission, Comptroller and
H
•
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SUPREME COURT REPORTS
[2011] 4 S.C.R.
A Auditor General, Parliamentary Committees etc. Thus,
while making the recommendations, the service
conditions of the candidate being a public servant or civil
servant in the past is not the sole criteria. The HPC must
also take into consideration the question of institutional
B competency into account. If the selection adversely
affects institutional competency and functioning then it
shall be the duty of the HPC to not recommend such a
candidate. Thus, the institutional integrity is the primary
consideration which the HPC is required to consider
c while making recommendation under Section 4 for
appointment of Central Vigilance Commissioner. In the
instant case, this vital aspect was not taken into account
by the HPC while recommending the name of respondent
no.2 for appointment as Central Vigilance Commissioner.
0 The HPC has also to keep in mind the object and the
policy behind enactment of the 2003 Act. The 2003 Act
indicates that the office of the Central Vigilance
Commissioner is not only given independence and
insulation from external influences, it also indicates that
such protections are given in order to enable the
E Institution of eve to work in a free and fair environment.
The prescribed form of oath under Section 5(3) requires
Central Vigilance Commissioner to uphold the
sovereignty and integrity of the country and to perform
his duties without fear or favour. The HPC has, therefore,
F to take into consideration the values, independence,
impartiality of the Institution and the institutional
competence. [Paras 29, 30] [485-C-H; 486-A-H; 487-A-C]
3.3. Chapter Ill refers to functions and powers of the
G Central Vigilance Commission. eve exercises
superintendence over the functioning of the Delhi Special
Police Establishment insofar as it relates to investigation
of offences alleged to have been committed under the
Prevention of Corruption Act, 1988, or an offence with
H which a public servant specified in sub-section (2) may,
•
CENTRE FOR PIL & ANR. v. UNION GF INDIA &
ANR.
457
under the Code of Criminal Procedure, 1973 be charged
A
with at the trial. Thus, eve is empowered to exercise
superintendence over the functioning of CBI. It is also
empowered to give directions to CBI. It is also
empowered to review the progress of investigations
conducted by CBI into offences alleged to have been
B
committed under the Prevention of Corruption Act, 1988
or under the Code of Criminal Procedure by a public
servant. eve is also empowered to exercise
superintendence over the vigilance administration of
various ministries of the Central· Government, PSUs, c
Governn~ent companies etc. The powers and functions
discharged. by eve is the sole reason for giving the
institution the a~ministrative autonomy, independence
and insulation from external influences. [Para 31] (487·0·
H]
D
4.1. Validity of the recommendation dated 3rd
September, 2010: Judicial review seeks to ensure that
the statutory duty of the HPC to recommend under the
proviso to Section 4(1) is performed keeping .in mind the
policy and the purpose of the 2003 Act. Appointment to
E
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 has got to
be an informed decision keeping in mind th~ fact that eve
F
as an institution has to perform an im'portant function of
vigilance administration. If a statutory body like HPC, for
any reason whatsoever, fails to look into the relevant
material having nexus to the object and purpose of the
2003 Act or takes into account irrelevant circumstances
G
then its decision would stand vitiated on the ground of
official arbitrariness. 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 is in question, the touchstone should
H
458
SUPREME COURT REPORTS
[2011) 4 S.C.R.
A be "public interest" which has got to be taken into
consideration by the HPe and in such cases the HPe
may not insist upon proof. However, it is not that the
personal integrity is not relevant. It certainly has a corelationship with institutional integrity. In the instant case,
s the entire emphasis was placed by the eve, the DoPT
and the HPe only on the bio-data of the empanelled
candidates. None of these authorities looked at the
matter from the larger perspective of institutional integrity
including institutional competence and functioning of
c eve. Moreover, between 2000 and 2004, the notings of
DoPT dated 26th June, 2000, 18th January, 2001, 20th
June, 2003, 24th February, 2004, 18th October, 2004 and
2nd November, 2004 have all observed that penalty
proceedings may be initiated against respondent no.2.
0 Whether State should initiate such proceedings or the
Centre should initiate such proceedings was not relevant.
What was relevant was that such notings were not
considered in juxtaposition with the clearance of eve
granted on 6th October, 2()_08. Even in the brief submitted
to the HPe !>Y ·DoPT, ther,e"was no reference to the said
E notings.' betWeen the years 2000 and 2004. Even in the
C.V. of re~pondent no.2, there was no reference to the
earlier riotings of DoPT recommending initiation of
penalty proceedings against him. Therefore, even on
personal integrity, the HPC did not consider the relevant
F material. The system governance established by the
Constitution is based on distribution of powers and
functions amongst the three organs of the State, one of
them being the Executive whose duty is to enforce the
laws made by the Parliament and administer the country
G through various statutory bodies like eve which is
empowered to perform the function of vigilance
administration. It is the independence and impartiality of
the institution like eve which has to be maintained and
preserved in larger interest of the rule of law. [Para 33]
H [488-A-H; 489-A-H; 490-A-C]
•
•
CENTRE FOR PIL & ANR. v. UNION OF INDIA &
ANR.
459
State of Andhra Pradesh v. Na/la Raja Reddy (1967) 3 A
SCR 28, relied on.
4.2. If the institutional competency would be
adversely affected by pending proceedings and if by that
touchstone the candidate stands disqualified then it shall
8
be the duty of the HPC not to recommend such a
candidate. In the instant case, apart from the pending
criminal proceedings, between the period 2000 and 2004
various notings of DoPT recommended disciplinary
proceedings against respondent no.2 in respect of
Palmolein case. Those notings were not considered by C
the HPC. The 2003 Act confers autonomy and
independence to the institution of CVC. Autonomy has
been conferred so that the Central Vigilance
Commissioner could act without fear or favour. The
institution is more important than an individual. This was the
D
test laid down in N. Kannadasan's case. In the instant case,
the HPC failed to take this test into consideration. The
recommendation dated 3rd September, 2010 of HPC was
entirely premised on the blanket clearance given by eve
on 6th October, 2008 and on the fact of respondent No.
E
2 being"~'ppointed as Chief Secretary of Kerala on 18th
September, 2007; his appointment as Secr~.tary of
Parliamentary Affairs and his subsequent appointment as
Secretary, Telecom. In the process, the HPC, for whatever
reasons, has failed· to take into consideration the
F
pendency of Palmolein case'--before the Special Judge;
the sanction accorded by the Government of Kerala on
30th November, 1999 under Section 197 Cr.P.C. for
prosecuting inter alia respondent no.2 for having
committed alleged offence under Section 120-B IPC read
G
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 Kera/a in
which this Court observed that, "the registration of the
FIR against Shri Karunakaran and others cannot be held
H
460
SUPREME COURT REPORTS
[2011) 4 S.C.R. •
A to be the result of malafides or actuated by extraneous
considerations. The menace of corruption cannot be
permitted to be hidden under the carpet of legal
technicalities and in such cases probes conducted are
required to be determined on facts and in accordance
B with law". The clearance of CVC dated 6th October, 2008
was not binding on the HPC. However, the judgment of
the Supreme Court in the case of **K. Karunakaran vs.
State of Kera/a was certainly binding on the HPC and, in·
any event, required due weightage to be given while
c making recommendation, particularly when the said
judgment had emphasized the importance of probity in
high offices. Thl!refore, the recommendation made by the
HPC on 3rd September, 2010 is non-est in law. [Para 33]
[490-D-H; 491-A-G]
D
**K. Karunakaran vs. State of Kera/a and Another 2000(2)
SCR 735 - referred to.
5.1. Is Writ of Quo Warranto invocable? The
procedure of quo warranto confers jurisdiction and
E authority on the judiciary to control executive action in
the matter of making appointments to public offices
against the relevant statutory provisions. Before a citizen
can claim a writ of quo warranto, he must satisfy the court
inter-alia that the office in question is a public office and
F it is held by a person without legal authority and that
leads to the inquiry as to whether the appointment of the
said person has been in accordance with law or not. A
writ of quo warranto is issued to prevent a continued .
exercise of unlawful authority. In the instant petition, a
G declaratory relief is also sought besides seeking a writ
of quo warranto. In the main writ petition, the petitioner
has prayed for issuance of any other writ, direction or
order which this Court may deem fit and proper in the
facts and circumstances of this Case. Thus, nothing
H prevented this Court, if so satisfied, from issuing a writ
•
CENTRE FOR PIL & ANR. v. UNION OF INDIA &
461
ANR.
of declaration. If public duties are to be enforced and
A
rights and interests are to be protected, then the court
may, in furtherance of public interest, consider it
necessary to inquire into the state of affairs of the subject
matter of litigation in the interest of justice. [Paras 35-37]
[491-G; 492-F-H; 493-A]
.
B
Ashok Lanka v. Rishi Dixit (2005) 5 SCC 598; Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417; R.K.
Jain v. Union of India (1993) 4 SCC 119; Hari Bansh Lal v.
Sahodar Prasad Mahto (2010) 9 SCC 655 - relied on .
c
5.2. Difference between judicial review and merit
review. Government is not accountable to the courts for
the choice made but Government is accountable to the
courts in respect of the lawfulness/legality of its
decisions when impugned under the judicial review D
jurisdiction. [Paras 44, 45] [496-H; 497-A; D-E]
6. Appointment of Central Vigilance Commissioner at
the President's discretion: The Central Vigilance
Commissioner is appointed under Section 4(1) of the
E
2003 Act by the President by warrant under her hand and
seal after obtaining the recommendation of a Committee
consisting of the Prime Minister as the Chairperson and
two other Members. Although under the 2003 Act, the
Central Vigilance Commissioner is appointed after
F
obtaining the recommendation of the High Powered
Committee, such recommendation has got to be accepted
by the Prime Minister, who is the concerned authority
under Article 77(3), and if such recommendation is
forwarded to the President under Article 74, then the
President is bound to act in accordance with the advice
G
tendered. Further under the Rules of Business the
concerned authority is the Prime Minister. Therefore, the
advice tendered to the President by the Prime Minister
regarding appointment of the Central Vigilance
Commissioner will be binding on the President. There is
H
•
462
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A no merit in the contention advanced on behalf of
respondent No. 2 that in the matter of appointment of
Central Vigilance Commissioner under Section 4(1) of the
2003 Act the t'resident is not to act on the advice of the
Council of Ministers as is provided in Article 74 of the
B Constitution. [Para 48] [501-D-H; 502-A-E]
Bhuri Nath v. State of J & K (1997) 2 SCC 7 45; Hardwari
Lal v. G.D. Tapase AIR 1982 P&H 439 - held inapplicable.
Samsher Singh v. State of Punjab (1974) 2 SCC 831 -
C referred to.
7. 'lnanimity or consensus under Section 4(2) of the
2003 Act: Under the proviso to Section 4(1), Parliament
has put its faith in the High Powerert Committee
0 consisting of the Prime Minister, the Minister for Home
Affairs and the Leader of the Opposition in the House of
the People. It is presumed that such High Powered
Committee entru:;ted with wide discretion to make a
choice will exercise its powers in accordance with the
E 2003 Act, objectively and in a fair and reasonable manner.
It is well settled that mere conferment of wide
discretionary powers per se will not violate the doctrine
of reasonableness or equality. The 2003 Act is enacted
with the intention that such High Powered Committee will
act in a bipartisan manner and shall perform its statutory
F duties keeping in view the larger national interest. Each
of the Members is presumed by the legislature to act in
public interest. On the other hand, if veto power is given
to one of the three Members, the working of the Act would
become unworkable. One more aspect needs to be
G mentioned. Under Section 4(2) of the 2003 Act it has been
stipulated that the vacancy in the Committee shall not
invalidate the appointment. This provision militates
against the argument of the petitioner that the
recommendation under Section 4 has to be unanimous.
H To accept such contention would mean conferment of a
• CENTRE FOR PIL & ANR. v. UNION OF INDIA &
463
ANR.
"veto right" on one of the members of the HPC. To confer
A
such a power on one of the members would amount to
judicial legislation. Therefore, it is incorrect to state that
the recommendation/decision dated 3rd September, 201 O
stood vitiated on the ground that it was not unanimous.
[Paras 50, 53] [503-E-H; 504-A-C; 505-G]
B
Grindley and Another v. Barker 1 Bos. & Pul. 229 -
referred to.
Halsbury's Laws of England - referred to.
c
8. Guidelines/DirectiOns of this Court: Under Section
3(3), the Central Vigilance Commissioner and the
Vigilance Commissioners are to be appointed from
amongst persons - (a)who have been or who are in AllIndia Service or in any civil service of the Union or in a
D
civil post under the Union having requisite knowledge
and experience as indicated in Section 3(3)(a); ru: (b) who
have held office or are holding office in a corporation
established by or under any Central Act or a Central
Government company and persons who have experience
E
in finance including insurance and banking, law, vigilance
and investigations. No reasons were given as to why in
the instant case, the zone of consideration stood
restricted only to the civil service. Therefore following
directions are passed:
(i) There is no prescription of unanimity or consensus
under Section 4(2) of the 2003 Act. However, the
question still remains as to what should be done in
cases of difference of opinion amongst the Members
F
of tha High Powered Committee. As in the instant G
case, if one Member of the Committee dissents, that
Member should give reasons for the dissent and if
the majority disagrees with the dissent, the majority
shall give reasons for overruling the dissent. This will
bring about fairness-in-action. Since legality of the
H
464
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2011) 4 S.C.R.
choice or selection is open to judicial review, if the
above methodology is followed, transparency would
emerge which would also maintain the integrity of the
decision-making process.
(ii) In future the zone of consideration should be in
terms of Section 3(3) of the 2003 Act. It shall not be
restricted to civil servants.
(iii) All the civil servants and other persons
empanelled shall be outstanding civil servants or
persons of impeccable integrity.
(iv) The empanelment shall be carried out on the
basis of rational criteria, which is to be reflected by
recording of reasons and/or noting akin to reasons
by the empanPllir1i1 authority.
(v) The empanefrne .. t shall be carried out by a person
not below the rank of Secretary to the Government
of India in tne conc.:rned Ministry.
(vi) The emp ... nelling authority, while forwarding the
names of the empanelled officers/persons, shall
enclose complete information, material and data of
the concerned officer/person, whether favourable or
adverse. Nothing relevant or material should be
withheld from the Selection Committee. It will not only
be useful but would also serve larger public interest
and
enhance
public
confidence
if
the
contemporaneous service record and acts of
outstanding performance of the of,ficer under
consideration, even with adverse remarks is
specifically brought to the notice of the Selection
Committee.
(vii) The Selection Committee may adopt a fair and
transparent process of consideration of the
•
•
•.
':t.
CENTRE FCR PIL & ANR. v. UNION OF INDIA &
465
,_
ANR.
empanelled officers. (Paras 54, 55] (505-H; 506-A-H;
507-A-G]
Case Law Reference:
(1998) 1 sec 226
relied on
Paras 23, 24,
33, 49
(2009) 1 sec 1
relied on
Paras 28, 33
(1967) 3 SCR 28
relied on·
Para 33
2000(2) SCR 735
referred to
Para 33
(2005) 5 sec 598
relied on
Paras 37, 38
(1985) 4 sec 417
relied on
Para 39, 44
(201 O) 9 sec 655
relied on
Para 43
(1993) 4 sec 119
relied on
Para 42, 45, 48
(1974) 2 sec 831
referred to
Para 48
(1997) 2 sec 745
held inapplicable Para 48
AIR 1982 P&H 439
held inapplicable Para 48
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
348 of 2010 etc.
Under Article 32 of the Constitution of India.
WITH
Writ Petition (C) No. 355 of 2010.
Goolam E. Vahanvati, AG, K.K. Venugopal, Prashant
A
B
c
D
E
F
G
Bhushan, Pranav Sachdeva, Siddharth Bhatnagar, Prashant
Kumar, B.S. lyenger (for AP & J Chambers), Devadatt Kamat,
T.A. Khan, Anoopam N. Prasad, Nishanth Patil, Rohit Sharma,
Naila Jung, Anil Katiyar, S.N. Terdal, Gopal Sankaranarayanan,
H
Wills Mathews, Rajdipa Behura, Shyam Mohan, D.K. Tiwari, A.
466
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A
Venayagam Balan, Wills Mathews, Braj Kishore Mishra,
Aparna Jha, Vikas Malhotra, M.P. Sahay, Abhisehk Yadav,
Vikram for the appearing parties.
The Judgemnt of the Court was delivered by
B
S. H. KAPADIA, CJI.
Introduction
1. The two writ petitions filed in this Court under Article 32
C of the Constitution of India give rise to a substantial question
of law and of public importance as to the legality of the
appointment of Shri P.J.